MOHAMMAD RAFIQ,J. - (1.) This application under sections 10 and 11 of the Arbitration and Conciliation Act, 1996 has been filed by petitioner M/s. B.M. Construction Company, a proprietorship firm, praying for appointment of arbitrator to resolve its dispute with the respondents.
(2.) Learned counsel for petitioner submitted that the petitioner participated in the Tender No.DO-JP/Doubling/2014 issued by the respondents for construction of Major Bridge No. 178 (Km 191/9-192/2) Span 4 x 12.20m PSC slab on pile foundation, Bridge No. 195 (Km 216/6-7) span 4 x 18.30m PSC girder on pile foundation, Bridge No. 197 (Km 215/5-6) Span 2 x 12.20m PSC slab on pile foundation, between Jatwada-Kanota Station in connection with Dausa-Jaipur Doubling Project. The respondent Railways, vide letter dated 25.09.2007, accepted the bid of the petitioner and thereafter, an agreement was executed between the parties on 27.03.2008. The respondent issued the work order on 27.03.2008 in favour of the petitioner, wherein the date of commencing the work was 25.09.2007 and completing the work was 24.10.2008. It is submitted that despite repeated requests the respondents did not provide the drawing of the aforesaid work till June, 2008, and due to the delay on the part of the respondents, the labour staff and machinery of the petitioner remained unused, which caused loss to him. The respondents, vide letter dated 09.04.2009, extended the time for completion of the work from 01.04.2009 to 31.07.2009 without penalty and LD under Clause 17(A)(ii) of the General Conditions of Contract. Thereafter the respondents, vide letter dated 08.12.2009 and 04.02.2010, further accorded sanction for extension of date of completion of the work under contract with penalty of Rs. 5000/- under Clause 17-B of the GCC. The petitioner, vide letter dated 06.02.2010, requested the respondents to exempt the penalty and grant extension time for completing the work. The respondents, vide letter dated 04.10.2010 accorded sanction to extend the date for completion of work under Clause 17-B of the GCC with penalty of Rs. 10,000/-. The petitioner requested the respondents vide letter dated 19.08.2013 that the penalty may be waived off. However, the petitioner completed the work on 31.03.2011. The respondents issued performance letter to the petitioner on 30.12.2011. The petitioner time and again requested the respondents to make payment of the final bill of the work, but no heed was paid thereto. The respondents thereafter directed the petitioner to attend their office for signing the final supplementary contract agreement of the work so that final bill can be processed further. On 17.04.2013 the petitioner submitted its 44th and final bill before the respondents.
(3.) Mr. Nawal Singh Sikarwar, learned counsel for petitioner, argued that the petitioner under pressure signed the 'No Claim Certificate' on 27.04.2013. The respondents made the payment of the final bill and the petitioner also received the security amount on 11.10.2013. The petitioner submitted bill of price variation clause to the respondent, which is decided according to Reserve Bank of India Index, that is published quarterly. When nothing was done, the petitioner wrote a letter to the General Manager, North Western Railway, for appointment of the Arbitrator for resolution of the dispute/difference. The petitioner also sent a registered legal notice to the respondents to make payment of the entire due claim of the petitioner with interest or else appoint the Arbitrator for deciding the issue. The respondents, however, rejected the claim of the petitioner on the ground that the petitioner has signed the 'No Claim Certificate'. Thereafter, the respondent made part payment of the bill of PVC up to the 19th running bill on 18.01.2014. The petitioner submitted his PVC of bill from 1st to 44th running bill as per the freeze index because the respondents paid the bill of PVC till 19th running bill and amount of the PVC bill of rest of the bills i.e. 20th to 44th running bill along-with the statement of PVC amount was not paid. The petitioner repeatedly requested the respondents to make the payment of the final PVC bill i.e. Rs. 11,15,960/- or appoint the Arbitrator for the same. The respondents, vide letter dated 05.06.2014 rejected the claim of the petitioner assigning the reason that the petitioner has signed the 'No Claim Certificate' and the claim of the PVC amount has been submitted after 90 days from signing the final bill, thus has to be taken as waived. It is argued that the respondents neither made the payment of the remaining final PVC Bills nor appointed the arbitrator and their action is contrary to their own guidelines as well as circular.;