- (1.) BY this application under Sec.10 and 11 of the Arbitration and Conciliation Act, 1996, the Applicant has prayed for appointment of independent Arbitral Tribunal.
(2.) ON 31.8.2004, an agreement containing arbitration Clause 64 was entered into between the parties, which is not in dispute in this case. The said agreement was executed in respect of award of the work of dis-mentaling of existing MG track including points and crossing laying and linking f gauntleted /BG Track in main line, loop line, siding including points and crossing transportation of P.way material and other misc. works between Station Ranapratap Nagar (excluding) to Umpra (including) in connection with Udaipur Chittorgarh Gauge conversion Project, the estimated cost of which was Rs.1,51,68,488.86. On 8.2.2008, the applicant served a notice demanding arbitration as the non-applicants breached the conditions of signed agreement, withheld huge amount of the applicant and thus have created disputes. On 23.4.2008, the applicant had filed Arbitration Application No.30/2008 for appointment of the Arbitrator in which the non applicants raised the objection that the claim was beyond 20% of the contract value. Therefore, on 17.4.2009, the applicant withdrew the said arbitration application with liberty to file fresh one. The applicant has served notice dated 15.6.2009 for appointment of the Arbitrator reducing its claim to 20% of the contract value which has been served upon the non applicants. Counsel for the non-applicants has filed reply in which the agreement containing arbitration Clause 64 as per the General Conditions of Contract has not been disputed. However, the claim of the applicant on merit has been disputed. It has also been mentioned in the reply that the Applicant is not entitled for having an independent Arbitral Tribunal and as per Para 64(3)(a)(i) of the General Conditions of Contract, 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.
(3.) COUNSEL for both the parties submit that there is no dispute about the territorial jurisdiction and further, the applicant and the non-applicants are parties to the agreement and the General Conditions of Contract are applicable. Submission of counsel for the Applicant is that as per Para 64(3)(a)(i) of the General Conditions of Contract, the Arbitrator may be appointed. Submission of counsel for the non-applicants is that the non-applicants do not dispute the agreement containing arbitration Clause 64 as per the General Conditions of Contract. However, counsel submits that the claim of the applicant deserves to be dismissed and the Applicant is not entitled for having an independent Arbitral Tribunal and as per Para 64(3)(a)(i) of the General Conditions of Contract. ;