Hemant Gupta, J. - (1.) PRESENT is a petition under Section 11 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') for appointment of an Arbitrator and for reference of remaining claims/disputes to Arbitrator in terms of Arbitration Clause in the Agreement dated 13.10.2005.
(2.) THE Petitioner was awarded contract of "balance work of construction of 10 Nos. Major Bridges on Broad Gauge Railway Line across rivers of spans 9.15 metre, 12.20 metre and 30.50 metre of PSC girders on well foundations/Open foundations with RCC abutments, Piers and other allied works like protection work from Kms 72.400 to 113.750 in between Chakki Bank and Mukerian (including yards) in connection with doubling on Jalandhar Cantt. - Pathankot - Jammu Section" of Northern Railways. The work was awarded on 12.07.2005 with stipulated period of completion of 15 months. The parties enter into agreement on 13.10.2005. All bridges except bridge No. 232 were completed within the extended period, but the drawing of well cap and abutment in respect of bridge No. 232 are stated to have been received on 23.04.2007 i.e. after a gap of 30 months from the date of commencement of work. The Petitioner sought extension of time to complete works pointing out increase in the cost of cement, steel, stone chips, labour etc. The request for the completion of the work was accepted without imposing any penalty. After the said extension, a corrigendum (Annexure P -4) was issued with the increase of Rs. 1,35,72,742.95 over the existing cost i.e. Rs. 7,77,71,969.53. The revised contract cost was Rs. 9,13,44,712.48. The time for completion was extended up to 20.04.2008 without penalty vide letter dated 22.04.208. The relevant part of letter dated 22.04.2008 reads as under: The Chief Engineer/Construction/NW, Northern Railway, Kashmere Gate, Delhi has accorded sanction to the date of completion relating to the subject work under execution by you being extended upto 20.04.2008 without penalty and without PVC under Clause 17 -A (iii) of GCC -1999. It was, thereafter, the Petitioner submitted a demand claiming Rs. 275 lacs on account of the price variation w.e.f. date of negotiation i.e. 04.07.2005 to 20.04.2008. Since the said claim was not accepted, the Petitioner requested for appointment of an Arbitrator. On 06.01.2009, the claim of the Petitioner to the extent of Rs. 73 lacs, as mentioned in Annexure -A of the said communication, was referred for arbitration i.e. claim Nos. 3, 7, 8 & 9. In response to another communication, the Petitioner was informed on 19.05.2009 that claim Nos. 1, 2, 4(i), 4(ii), 10 & 6 fall within the "Excepted Matter" and not referable to arbitration. It is, thereafter, the Petitioner has invoked the jurisdiction of this Court for appointment of an Arbitrator in respect of such claims of the Petitioner.
(3.) IT is argued that the Respondents cannot be the Judge of its own cause and decline adjudication of the claims of the Petitioner. It is argued that in terms of the Agreement, it is the quantification of the claims on the admitted fact that whether the Contractor or the employer is the defaulter, which falls within the "Excepted Matter" and not the question that who is the defaulting party. Therefore, the claims of the Petitioner are required to be referred to the Arbitral Tribunal. Reliance is placed upon M/s J.G. Engineers Pvt. Ltd. v. Union of India : AIR 2011 SC 2477 and Anil Kumar v. B.S. Neelkanta and Ors. : (2010) 5 SCC 407.;