- (1.) Instant application has been filed Under Section 11 of Arbitration and Conciliation Act, 1996 for appointment of Arbitrator.
(2.) It is not disputed that parties have entered into agreement which contains clause of arbitration which is to be invoked if any dispute arises under the terms of agreement. Certain dispute arose with regard to manufacture and supply of fish plates. There is a clause in the agreement to resolve such disputes. Clause 2900, which is relevant for present purposes, is reproduced as under: 2900. Arbitration (a) In the event of any question, dispute or difference arising under these conditions or any special conditions of contract, or in connection with this contract (except as to any matters the decision of which is specially provided for by these or the special conditions) the same shall be referred to the sole arbitration of a Gazetted Railway Officer appointed to be the arbitrator by the General Manager in the case of contracts entered into by the Zonal Railways and Production Units; by any Member of the Railway Board, in case of contracts entered into by the Railway Board and by the Head of the Organization in respect of contracts entered into by the other organizations under the Ministry of Railways. The Gazetted Railway Officer to be appointed as arbitrator however will not be one of those who had an opportunity to deal with the matters to which the contract relates or who in the course of their duties as railway servant have expressed views on all or any of the matters under dispute or difference. The award of the arbitrator shall be final and binding on the parties to this contract. [b] In the event of the arbitrator dying, neglecting or refusing to act or resigning or being unable to act for any person, of his award being set aside by the court for any reason, it shall be lawful for the authority appointing the arbitrator to appoint another arbitrator in place of the outgoing arbitrator in the manner aforesaid. [c] It is further a term of this contract that no person other than the person appointed by the authority as aforesaid should act as arbitrator and that if for any reason that is not possible, the matter is not to be referred to arbitration at all. [d] The arbitrator may from time to time with the consent of all the parties to the contract enlarge the time for making the award. [e] Upon every and any such reference, the assessment of the cost incidental to the reference and award respectively shall be in the discretion of the arbitrator. [f] Subject as aforesaid, the Arbitration Act, 1940 and the rules thereunder and any statute modifications thereof for the time being in force shall be deemed to apply to the arbitration proceedings under this clause. [g] The venue of arbitration shall be the place from which the acceptance note is issued or such other place as the arbitrator at his discretion may determine. [h] In this clause the authority to appoint the arbitrator includes, if there be no such authority, the officer who is for the time being discharging the functions of that authority, whether in addition to other functions or otherwise." To resolve such disputes arises from the agreement entered and executed between the parties, the applicant sent a registered notice dated 9th November, 2006 which was duly served in the office of respondents on 1st December, 2006 and since they failed to make appointment of Arbitrator under Clause 2900 [supra], the applicant approached this court by filing instant application on 7th February, 2007.
(3.) It is pertinent to mention further that notices were issued to the present applicant on 23rd March, 2007 and it appears that on 23rd April, 2007 invoking Clause 2900 respondents made appointment of Arbitrator Ann.R/1.;