Hemant Gupta, J. - (1.) THIS is a petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short 'the Act') for appointment of an Arbitrator in respect of disputes between the parties arising out of an Agreement dated 18.03.2005 executed in pursuance of the notice inviting tenders for the work of fabrication and supply of various Components of Calender Hamiltion (CH) Span of 200' with Launching Nose of 250' as per list of Components in the Schedule of items and quantities etc.
(2.) AS per the contract Agreement, the work was to be completed within 12 months. It is asserted by the Petitioner that complete set of drawings were not supplied to the Petitioner. Few drawings were supplied after long delay, but important drawings were still missing. Due to delay in providing drawings and for other reasons, the work could not be completed and that the execution of the work had become impossible. The Respondent terminated the Agreement by invoking Clause 62 of the General Conditions of Contract on 05.02.2009. The Petitioner requested for appointment of an Arbitrator vide communication dated 09.04.2009 (Annexure P -4) to decide the disputes arising out of the agreement executed between parties. The said letter was addressed to the Deputy Chief Engineer, Northern Railway, Bridge Workshop, Jalandhar Cantt. Since the Arbitrator was not appointed within one month of such request, the present petition was filed for appointment of an Arbitrator in this Court on 12.05.2010. In reply to the present petition, the Respondent has, inter alia, pointed out that vide letter dated 10.02.2009 (Annexure R -1), the Petitioner was requested to approach General Manager (Engineering) for appointment of an Arbitrator. On 17.04.2009 again, the Petitioner was informed to approach the General Manager (Engineering), but the Petitioner has not approached General Manager of the Railways in terms of the Contract Agreement. Subsequently Respondent, vide communication dated 05.10.2010 (Annexure R -4), sought option of the Petitioner to opt for the names for appointment as Arbitrator out of the four Gazetted Railway Officers for appointment of arbitrator by the General Manager.
(3.) LEARNED Counsel for the Petitioner has vehemently argued that though in terms of Clause 64 of the Agreement, the request for appointment of an Arbitrator was required to be made to the General Manager, but the request of the Petitioner for appointment of an Arbitrator has been forwarded by the Deputy Chief Bridge Engineer to the General Manager (Engineering) vide communication dated 17.04.2009. Since the Arbitrator has not been appointed by the General Manager for almost one year before the filing of the present petition, therefore, the Respondent is precluded in law from seeking consent of the Petitioner for appointment of Gazetted Railway Officers as the Arbitrator in view of the judgment of Hon'ble Supreme Court in Datar Switchgears Ltd. v. Tata Finance Ltd. : (2001) 8 SCC 151.;