Vijender Jain, J. - (1.) This petition has been filed by the petitioner inter -alia on the ground that there exists an arbitration clause in the contract between the parties i.e. Annexure P -1, which reads thus: 64. Demand for Arbitration (1)(i) In the event of any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account, or as to the withholding by the Railway of any certificate to which the contractor may claim to be entitled to, or if the Railway fails to make a decision within a reasonable time, then and in any such case, save the excepted matters referred to in Clause 63 of these conditions, the contractor, after 90 days but within 180 days of his presenting his final claim on disputed matters, shall demand in writing that the dispute or difference be referred to arbitration. (ii) The demand of arbitration shall specify the matter which are in question, dispute or difference. On such dispute(s) or difference(s) in respect of which the demand has been made, shall be referred to arbitration and other matters shall not be included in the referred to arbitration and other matters shall not be included in the reference. (iii) If the contractor(s) does/do not prefer his/their specific and final claim in writing, within a period of 90 days of receiving the intimation from the Government that the final bills is ready for payment, he/they will be deemed to have waived his/ their claim(s) and the Railway shall be discharged and released of all liabilities under the contract in respect of these claims. (2) Obligation during pendency of arbitration -Work under the contract shall, unless otherwise directed by the Engineer, continue during the arbitration proceedings, and no payment due or payable by the Railway shall be withheld on account of such proceedings, provided, however, it shall be open for arbitrator or arbitrators to consider and decide whether or not such work should continue during arbitration proceedings. (3)Arbitration - (a) (i) A sole Arbitrator who shall be the General Manager or a Gazetted Railway Officer nominated by him in that behalf in cases where the claim in question is below Rs.5,00,000/ -(Rupees Five lakh) and in cases where the issues involved are not of a complicated nature. The General Manager shall be the Sole Judge to decide whether r not the issues involved are or a complicated nature. (3)(a) (ii) The Arbitrators who shall be Gazetted Railway Officers of equal status to be appointed in the matter laid in Clause 64(3) (b) for all claims of Rs.5,00,000/ -(Rupees five lakhs) and above, and for all claims irrespective of the amount or value of such claims if the issues involved are of a complicated nature. The General Manager shall be the sole judge to decide whether the issues involved are of a complicated nature or not. In the event of the two Arbitrators being divided in their opinions, the matter under disputes will be referred to an Umpire to be appointed in the manner laid down in Clause 3(b) for his decision. (3)(a)(iii) It is a term of this contract that no person other than a gazetted Railway Officer should act as an Arbitrator/Umpire and if for any reason, that is not possible, the matter is not to be referred to arbitration at all. (3)(a)(iv) In case where the claim is up to Rs.3,00,000/ -(Rs. Three lakh) the Arbitrator(s)/ Umpire so appointed, as the case may be, shall give the award on all matters referred to arbitration indicating therein breakup of the sums awarded separately on each individual item of dispute. In cases where the claim is more than Rs. 3,00,000/ -(Rs. Three lakh), the Arbitrator(s)/Umpire so appointed, as the case may be, shall give intelligible award (i.e. the reasoning leading to the award should be stated) with the sums awarded separately on each individual item of dispute referred to arbitration. (3)(b) For the purpose of appointing " two arbitrators" as referred to more than three names of Gazetted Railway Officers of one or more departments of the Railway to the Contractor who will be asked to suggest to the General Manager one name out of the list for appointment as the contractor's nominee. The General Manager, while so appointing the contractor's nominee, will also appoint a second arbitrator as the Railway's nominee either from the panel of from outside the panel, ensuring that one of the two arbitrators so nominated is invariably from the Accounts Department. Before entering upon the reference the two Arbitrators shall nominate an Umpire who shall be a Gazetted Railway Officer to whom the case will be referred to in the event of any difference between the two Arbitrators. Officers of the Junior Administrative grade of the Accounts Department of the Railways shall be considered as of equal status of the officers in the intermediate administrative grade of other departments of the Railway for the purpose of appointment as arbitrator....
(2.) It is the case of the petitioner that the work was to be completed by 30.11.2002. However, the petitioner finished the work 10 days in advance i.e. by 20.11.2002. It is own case of the petitioner that the final bill was prepared on 20.12.2002 and the same was paid by the respondent.
(3.) Learned Counsel for the petitioner has contended that the arbitration clause was invoked vide notice dated 08.07.2003 and along with the said notice claims raised were also annexed. It is the case of the petitioner that inspite of the receipt of the letter, the respondent in terms of the arbitration clause did not supply the vacancy of the Arbitrator. It has also been contended before me by the counsel for the petitioner that the non -supply of vacancy by the respondent on the ground that the petitioner has received a sum of Rs.50,990/ -without protest will not de -bar this Court from appointing the Arbitrator. In support of his contention, learned Counsel for the petitioner has relied upon the judgment rendered in Chairman and MD, NTPC Ltd. v/s. : AIR2004SC1330 . Learned Counsel for the petitioner has relied upon paragraphs 27,28 and 29 of the aforesaid judgment, which read as under: A person may sometimes have to succumb to the pressure of the other party to the bargain, who is in a stronger position. Although it may not be strictly in place but the court cannot shut its eyes to the ground reality that in a case where a contractor has made a huge investment, he cannot afford not to take from the employer the amount due under the bills, for various reasons, which may include discharge of his liability towards banks, financial institutions and other persons. In such a situation, public sector undertakings would have an upper hand. They would not ordinarily release the money unless a "No Demand Certificate" is signed. Each case, therefore, is required to be considered on its own facts.;