- (1.) The petitioner has filed the present arbitration application seeking appointment of arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the said Act') in respect of the disputes having arisen out of the contract for execution of the work being No.Jaipur/2010-11/147 for ADEN Sikar Sub Division-Elimination of Level Crossing No.254 (Dundlod-Mukandgarh-Nua), LC No.282 (Ratanshahar-Chirawa), LC No.309(Surajgarh-Loharu) LC No.37 (Laxmangarh-Fatehpur Shekhawati) LC No.49 (Fatehpur-Shekhawati-Kayamsar), LC No.50 (Kayamsar-Ramgarh-Shekhawati) and LC No. 56 (Ramgarh-Shekhawati-Bissua) by construction of RCC Box for limited use Subway (By cut and cover method).
(2.) The short facts giving rise to the present application are that the respondent-North Western Railway had invited the tenders vide tender No.2011-11/147 for the execution of the work stated here-in-above, estimating the cost of project to the tune of Rs.4,39,65,018/-. The petitioner had also submitted the tender for the said work and the respondent had awarded the contract to the petitioner vide their acceptance letter dated 15/2/2011. The petitioner thereafter appears to have submitted the bank guarantee, performance guarantee and also submitted the letter dated 23/2/2011. It appears that thereafter an agreement was entered into between the parties- Annexure-4, wherein the concerned officer of the respondent had put an endorsement that as per LOA Price Verification Clause (hereinafter referred to as 'PVC') will not be applicable, however the petitioner had made further endorsement below the said endorsement on the said agreement that as per the General terms of the tender, the PVC was applicable, if the contract was for more than fifty lakhs, and since the petitioner's contract was for more than Rs.50 lakhs, the respondents shall have to apply PVC. It appears that thereafter both the parties had proceeded further with the contract agreement and according to the petitioner, it had completed the work also. Since the disputes had arisen with regard to the applicability of PVC, the petitioner called upon the respondent to appoint the arbitrator vide the letter dated 25/9/2013 (Annex.10). However, the respondent replied vide letter dated 19/9/2013 (Annex.12) that the PVC was not applicable and therefore the request for appointment of arbitrator cannot be accepted. The petitioner therefore has filed the present application seeking appointment of arbitrator in view of Clause 64 of the agreement in question. The petition has been resisted by the respondent by filing the reply to which the petitioner has filed the rejoinder.
(3.) After hearing heard the learned counsels for the parties, and perusing the documents on record, it appears that the respondent has objected to the appointment of the arbitrator on the ground that the petitioner had not completed the work in question and that as per the General Conditions of Tender, the dispute cannot be referred to the arbitrator before the completion of the work. It is also contended by the respondent that there being specific hand written condition in the agreement-Annexure-4 that the PVC shall not be applicable, such condition would be an excepted matters under Section 64 and therefore the arbitration clause would not be applicable to the petitioner.;