Ashis Kumar Chakraborty, J. - (1.) In this application under sub-Section(6) of Section 11 of the Arbitration and Conciliation Act, 1996, as amended by Act 3 of 2016 (in short "the Act of 1996") the petitioner has prayed for appointment of Arbitrators to constitute the Arbitral Tribunal for adjudication of the disputes arisen between itself and the South Eastern Railway, represented by its General Manager the respondent herein. The disputes between the parties relate to an agreement dated March 14, 2007 under which the petitioner was required to execute certain work for the respondent in terms of the letter of acceptance dated November 15, 2006 issued by the latter in favour of the former. Admittedly, the general terms and conditions of the contract applicable to the parties to the agreement in question provide for adjudication of the disputes between the parties through arbitration. The said arbitration agreement provides as follows: "64(3)(a) (i) In cases where the total value of all claims in question added together does not exceed Rs. 10,00,000/- (Rupees ten lakhs only), the Arbitral Tribunal consist of a sole arbitrator who shall be either the General Manager or a gazetted officer of Railway not below the grade of JA grade nominated by the General Manager in that behalf. The sole arbitrator shall be appointed within 60 days from the date when a written and valid demand for arbitration is received by Railway. (ii) In cases not covered by clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a panel of three Gazetted Rly. Officers not below JA grade, as the arbitrators. For this purpose, the Railway will send a panel of more than 3 names of Gazetted Rly. Officers of one or more departments, of the Rly., to the contractor who will be asked to suggest to General Manager upto 2 names out of the panel for appointment as contractor's nominee. The General Manager shall appoint at least one out of them as the contractor's nominee and will, also simultaneously appoint the balance number of arbitrators either from the panel or from outside the panel, duly indicating the 'presiding arbitrator' from amongst the 3 arbitrators so appointed. While nominating the arbitrators it will be necessary to ensure that one of them is from the Accounts department. An officer of Selection Grade of the Accounts department shall be considered of equal status to the officers in SA grade of other departments of the Railways for the purpose of appointment of arbitrators."
(2.) Since the petitioner's claim against the respondent in this case is for a sum of more than Rs.10 lakhs, clause 64(3) (a)(ii) above is applicable for appointment of the Arbitral Tribunal to adjudicate the disputes between the parties. By a letter dated June 6, 2017 the petitioner requested the respondent to take steps constitute an Arbitral Tribunal in accordance with the above arbitral agreement in the context of the amended provisions of the Act of 1996. By a letter dated July 3, 2017 the respondent requested the petitioner to enter into a fresh agreement towards waiver as per the Proviso to sub-Section (5) of Section 12 of the amended Act of 1996. The petitioner, however, did not agree to execute any new agreement and by a letter dated July 15, 2017 communicated the same to the respondent. In the meantime, the period of thirty days expired from the date of the receipt of the said notice dated June 6, 2017 by the respondent but, the latter did not take any step in terms of the arbitral agreement quoted above. Therefore, in exercise of its right under subSection (6) of Section 11 of the Act of 1996, on September 12, 2017 the petitioner filed the present application for appointment of three Arbitrators of the Arbitral Tribunal by this Court, as per the arbitral agreement between the parties.
(3.) After the petitioner filed this application, by a letter dated September 20, 2017 the respondent forwarded a panel of four retired railway officers to the petitioner for selecting one of them as its nominee arbitrator. By a letter dated September 25, 2017 the petitioner informed the respondent that since it has already filed the present application before this Court there is no scope for the respondent to constitute the Arbitral Tribunalany further. However, by a letter dated October 05, 2017 the respondent informed the petitioner of the constitution of the Arbitral Tribunal comprising three retired officers of the Indian Railways.;