Moushumi Bhattacharya, J. - (1.) This petition is for setting aside of an Award dated 22nd February 2017 passed by a learned sole Arbitrator in an Arbitration proceedings between the petitioner (claimant therein) and the Eastern Railways. By the Award, the learned Arbitrator rejected the claim of the petitioner for refund of the security money deposited by the petitioner, and forfeited by the railways through invocation of a bank guarantee furnished by the petitioner. The petitioner is further aggrieved by the learned Arbitrator allowing the counter claim of the respondent railways in relation to forfeiture of the same security deposit, refund of which had been claimed by the petitioner in the Arbitration Proceedings. In this Arbitration Petition, the petitioner has challenged the rejection of its claim for refund of security deposit of Rs.3,79,200/-, which had been forfeited by the Railways.
(2.) The facts are required to be set out in brief:
(3.) The petitioner participated in an e-tender floated by Eastern Railways for manufacture and supply of elastic rail clips and was declared as the successful tenderer. The respondents issued a letter of acceptance in favour of the petitioner dated 31st August 2015 which was accepted by the petitioner on 11th September 2015. Immediately thereafter, the petitioner faced labour unrest at its factory premises leading to a declaration of suspension of work in the factory with effect from 17th September 2015. The petitioner communicated the fact of suspension of work to various statutory authorities and also communicated the situation prevailing in the factory of the petitioner to the respondents by a letter dated 21 September 2015, indicating that the situation is covered by the Force Majeure Clause under Clause 24.0 of the conditions of tender. The aforesaid letter was received by the respondents. The respondents by a letter dated 6th October 2015, insisted upon the petitioner depositing the security money. Upon receiving the aforesaid letter, the petitioner intimated to the respondents that the petitioner had invoked the Force Majeure Clause and is thereby exempted from performing the terms and conditions of the agreement and more specifically that the deposit of security money falls within the obligations under the contract and the petitioner cannot be penalised for not depositing the same during the time in which the Force Majeure Clause operates. The petitioner assured the respondents that it would deposit the security money within seven days of revocation of the suspension of work in its factory premises. The petitioner and the respondents thereafter held meetings on 2nd November 2015 and at the request of the respondents, the petitioner agreed to submit the security deposit by way of a bank guarantee which was confirmed by a letter dated 4th November 2015 written by the petitioner and accepted by the respondents. The respondents thereafter terminated the contract by a letter dated 11th December 2015 which mentioned inter-alia that a penalty equivalent to the security deposit amounting to Rs.3,79,200 would be imposed on the petitioner. On 19th January 2016, the respondents invoked the bank guarantee on account of breach of contract committed by the petitioner for a sum of Rs.3,79,200/-. The petitioner invoked the Arbitration Clause on 18th May 2016 soon thereafter and referred the dispute to Arbitration. The impugned Award was published on 22nd February 2017.;