- (1.) HEARD learned counsel for the parties on the application u/s 11 of the Arbitration and Conciliation Act, 1996 (for short 'the Act of 1996') for appointment of the Arbitral Tribunal as per the Arbitration Clauses 63 and 64 of the General Conditions of Contract in respect of Tender No. SG/C/215/1/AF-BKI dated 22.2.2003 which was awarded to the Applicant vide Acceptance Letter NO.SG/241/1/C/S&T/08 dated 28.5.2003.
(2.) THERE is no dispute between both the parties that this Court has the territorial jurisdiction and further that the Applicant and the Non Applicants were parties to the aforesaid contract. Counsel for the applicant submits that the dispute between the parties is arising out of the aforesaid contract on account of deduction of Rs.12,31,510/- from the payment of final bill in another contract and in this connection, the Applicant sent a notice for demand of arbitration dated 5.9.2007 but nothing was done to settle the dispute. Counsel for the Non-applicants submits that the demand of arbitration raised by the Applicant was examined and it was found that the demand of the Applicant was not covered under Clause 8 and Clause 62(vi) of the General Conditions of Contract. I have gone through the record of the arbitration application and further considered the aforesaid submissions of counsel for the parties. Before proceeding further, it is necessary to quote Clause 8, Clause 62(vi) and Clause 64(3)(a)(ii) of the General Conditions of Contract Parts (I) and (II) respectively. The same is as under: "Clause 8 8. Execution of Contract Document:- The Tenderer whose tender is accepted shall be required to appear in person at the office of the General Manager / General Manager (Construction), Chief Administrative Officer (Construction), Divisional Railway Manager or concerned Engineer, as the case may be, or if a firm or corporation, a duly authorised representative shall so appear and execute the contract documents within 7 days after notice that the contract has been awarded to him. Failure to do so shall constitute a breach of the agreement affected by the acceptance of the tender in which case the full value of the earnest money accompanying the tender shall stand forfeited without prejudice to any other rights or remedies. In the event of any tenderer whose tender is accepted shall refuse to execute the contract document as herein before provided, the Railway may determine that such tenderer has abandoned the contract and there upon his tender and acceptance thereof shall be treated as cancelled and the Railway shall be entitled to forfeit the full amount of the Earnest Money and to recover the damages for such default." Clause 62(vi) "62. Determination of contract owing to default of contractor - (i) to (v) ..... (vi) abandon the contract, or (vii) to (y).." "Clause 64(3)(a)(ii)
(3.) IN cases not covered by clause 64(3)(a)(i), the Arbitral Tribunal shall consist of three gazetted Railway Officers not below J.A. Grade as the Arbitrator. For appointment, the Railway will send a panel of more than three names of Gazetted Railway Officers of one or more departments of the Railway to the contractor who will be asked to inform General Manager up to 2 names out of the panel for appointment as contract nominee. The General Manager shall appoint at least one out of them as the contract nominee panel or from outside the panel duly indicating the Presiding Arbitrator to ensure that one of them is from the accounts Department and one officer of selection grade of the accounts Department shall be considered of equal status." Having considered the aforesaid submissions, I am of the view that Clause 8 and Clause 62(vi) are not applicable but since the dispute is of more than Rs.10 lacs, I deem it proper to refer the dispute to the General Manager, North-Western Railway to act in accordance with the aforesaid Clause 64(3)(a)(ii) of the General Conditions of Contract, 1988 in the matter of appointment of the Arbitral Tribunal consisting of two Arbitrators and one Presiding Arbitrator, within a period of one month from the date of receipt of certified copy of this order. The application stands disposed of as indicated above. A copy of this order be sent to the General Manager, North-Western Railway, Jaipur. ;