Prem Shanker Asopa, J. - (1.) HEARD learned counsel for the parties. By this arbitration application, the Applicant -claimant is seeking direction for referring the dispute to the General Manager, North -Western Railway for appointment of the Arbitrator as per Clause 64.1.
(2.) BRIEFLY stated, the facts of the case, are that the Non -applicants invited tender vide NIT No. 05/Track Ajmer/06 duty bunk at Railway Crossing No. 43, 44, 46 and 49 at Ajmer Madar Station and pursuant thereto, an agreement No. WA/350/2/667 -1 was signed between the Applicant and the Non -applicants and the work was awarded to the Applicant on 17.3.2006 for Rs. 1,68,207.39. Thereafter, a supplementary work order for Rs. 41,663.22 was issued, thus the total cost of the work order was Rs. 2,09,870.61 in respect of which, after preparation of the final bill, the amount has not been paid, therefore, disputes and differences have arisen between the parties and then notice was issued on 22.2.2009 (Anx. 3). In reply to the said notice, on 8.10.2009 the Non -applicants have replied that as per the special conditions of the contract - 1.2, the Contractor shall not be entitled to ask for reference by arbitration before the completion of the work assigned to him under the contract and further, the Contractor shall seek reference to arbitration to settle the dispute only once within the ambit of condition 1.1. It was further mentioned in the said reply that since the work was not completed under this contract, case is not arbitrable as per Special Condition of this contract 1.2. Earlier in reply, the counsel for the Non -applicants has taken the objection that since the dispute was of Rs. 40,000/ - and the same is more than 20% of the total amount of the contract, no arbitration can be made as per Clause 1.1 of the special conditions of contract.
(3.) SUBMISSION of Mr. D.D. Sharma, counsel for the Applicant is that while computing the total amount of the work, not only the initial cost of the work but the cost of the supplementary work is also to be added and in case the same is added, then the total cost would be Rs. 2,09,870.61 and the claim which has been filed for Rs. 40,000/ - is not more than 20% of the contract value. In support of aforesaid submissions, counsel for the Applicant has placed reliance on the judgment of the Supreme Court in Deepak Kumar Bansal vs. Union of India & Ors., Civil Appeal No. 1089 of 2009 decided on 17.2.2009. Counsel also submits that Clauses 1.1 and 1.2 are independent clauses and Clause 1.1 has nothing to do with the completion of the contract and Clause 1.2 is an independent Clause.;