- (1.) COUNSEL for the petitioner submitted that an agreement has been arrived at between the petitioner and the respondents, which is annexed as Annexure -1 to the memo of application. Clause 55 of the said agreement reads as under: - "55. All disputes, questions or differences arising out of or in any way touching or concerning this agreement (except those the decision whereof is otherwise herein fore specially provided for) shall be referred to the sole arbitration of any person appointed by the General Manager/South Eastern Railway, Garden Reach, Kolkata. At the time of such appointment, there will be no objection to any such appointment that the persons appointed is a Government servant, that he has to deal with the matters to which the agreement, relates and that in the course of his duties as such Govt. servant he had expressed the view on all or any of the matters in dispute or difference. The award of such arbitrator shall be final and binding on the parties to the agreement. It is a term of this agreement that in the event of such arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason such General Manager, South Eastern Railway as aforesaid at the time of such transfer vacation of office or inability to act, shall appoint another person to act as Arbitrator in accordance with terms of this agreement, such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is also a term of this agreement that no person other than a person appointed by the General Manager, South Eastern Railway as aforesaid should act as Arbitrator and if for any reason that it is not possible the matter is not to be referred to Arbitration at all. Subject as aforesaid, the provision of the Arbitration Act, 1940 or any statutory modification or re -enactment thereof and the rules made hereunder from time to time shall apply to such arbitration. The Arbitrator may with the consent of the parties extend from time to time, the tenure for making and publishing the award. The venue of arbitration shall be as decided by the Arbitrator."
(2.) IN view of the aforesaid clause, if any dispute has been arose between the parties, then arbitrator may be appointed by the General Manager, South Eastern Railway, Kolkata and therefore, a notice was given by the petitioner to this authority on 6th March, 2012 and as, he has failed to appoint any arbitrator, this Arbitration Application has been preferred on 17th May, 2012 and in pursuance of the decision rendered in the Datar Switchgear Ltd. vs. Tata Finance Limited reported in (2000)8 S.C.C. 151 [2001 (1) PLJR (SC) 36], once an application is given to this authority and he is not appointing any arbitrator, then this Court may appoint arbitrator. Counsel for the Government of India has submitted that they have no objection if a retired Judge of this Court is appointed as an arbitrator and especially he is suggesting the name of Justice Vikramaditya Prasad, who is a retired Judge of this Court. Counsel for the petitioner has no objection this appointment.
(3.) IN view of the this submission and looking to the aforesaid clause, I hereby appoint Hon'ble Mr. Justice Vikramaditya Prasad, retired Judge of this Court, as an arbitrator for deciding the disputes between the parties which are stated in Annexure -2 to this memo of application, as early as possible and practicable, preferably within a period of six months from the date of entering into the reference and appearance of both the parties.;