Arun Bhansali, J. - (1.) This application under Section 11(6) of the Arbitration and Conciliation Act, 1996 ('the Act') has been filed by the applicant seeking appointment of an independent Arbitrator.
(2.) The applicant entered into an agreement with the respondent-Railways vide Ex.- A/2. The agreement, inter alia contained the following clause for settlement of disputes:- "35.0 Settlement of disputes. 35.1 The dispute will be settled under the Arbitration Act 1996. 35.2 The successful tender/s shall put-up his/their claim as per clause 43 of the General Conditions of the contract during the progress of work and not after completion of the work. All such claims and disputes shall be settled promptly during the progress of the work. The final authority for giving the decision on claims and disputes put up by the tenderer/s contractor/s shall be the Chief Administrative Officer/Chief Engineer (Construction), North Western Railway, Jaipur. 35.3 The provision of the clause - 63 and 64 of the General condition of contract will be applicable only for settlement of claims or disputes between the parties for value less than or equal to 20% of the value of the contract and when claims or disputes are of the value more than 20% of the value of contract, provision of clause 63 and 64 and other relevant clauses of the General Conditions of Contract will not be remedy for settlement of such disputes. 35.4 The contractor/s shall not be entitled to ask for reference to arbitration, before the completion of the work assigned to him/them under this contract. The contractor/s shall seek reference to arbitration to settle the disputes only once within the ambit of condition 35.3 above."
(3.) The applicant raised claim with the respondent-Railways and sought reference to arbitration in terms of Clauses 63 and 64 of the General conditions of Contract. The said prayer of the applicant was rejected by the respondent-Railways by their order dated 30.11.2015, inter alia, with the following observations:- "General Manager, North-Western Railway, Jaipur has not agreed for appointment of arbitration in existing case being the claims are more than 20% of total agreement value. As per clause No. 35.3 of contract agreement, provision of clause 63 and 64 and other relevant clause of General Conditions of Contract will not be remedy for settlement of disputes when claims or disputes are of value more than 20% of the value of contract, as requested by you vide your letter cited above." Where after, the present application has been filed by the applicant, inter alia with the following submissions:- "17. That from a bare perusal of An.15, it would be clear that respondents although have admitted the existence of claims/disputes, but the appointment of arbitrator has been denied solely on the ground that the claims are more than 20% of total agreement value and therefore, as per clause No. 35.3 of contract agreement the provisions of clause 63 and 64 and other relevant clauses of GCC will not be remedy for settlement thereof as it exceed the value more than 20% of the value of contract. It is submitted that once the respondents are of the opinion that there does exist a rightful/legal claim (though found to exceed 20% of the value of contract), then they could have restricted the same up to 20% of the value of contract and could have referred the claim to the said extent to arbitration for its adjudication by way of appointing an arbitrator. Having not done so the respondents have denied a very lawful request of the applicant for referring the dispute to arbitral tribunal. 18. That in the circumstances, the applicant respectfully submits before this Hon'ble Court that it readily restricts its claim/s so made before the respondents only to the extent of 20% of the value of contract and prays this Hon'ble Court to kindly consider this application while confining the claim to the said extent only and to be further pleased to order for referring the claim/dispute to adjudicate the same by way of arbitration by ordering appointment of an arbitrator.";