Krishan Lal Arora vs Union Of India (Uoi)
2005 Latest Caselaw 1357 Del

JUDGMENT

R.C. Jain, J.

Page 2095

1. The above named petitioner (to be referred as Contractor) has filed this petition under Section 20 of the Arbitration Act, 1940 for a direction on the respondent to file arbitration agreement between the parties and to appoint an Arbitrator in terms of arbitration clause 64 of General Conditions of Contract for adjudication of all the claims of the petitioner relating to the contract, broadly indicated in para 11 of the petition.

2. The basis of filing the present petition is that the petitioner, vide an agreement No.90-ACs/C/DLI dated 3rd November, 1988, had entered into a Page 2096 contract with the respondent for providing road boundary wall earth work etc. in the store complex of D.S.K.P./C/Store Office at Shakurbasti. The said agreement between the parties contains an arbitration agreement in clause 64 of the 'General Conditions of Contract, Regulations and Instructions for tenderers' and 'Standard Forms of Contract', for settlement of all the disputes/differences arising between the parties through the mechanism of arbitration. The said clause reads as under :

Clause 64 Demand for Arbitration: (1)(i) In the event of any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities or the parties on any matter in question, dispute or difference on any account, or as to the withholding by the Railway of any certificate to which the contractor may claim to be entitled to, or if the Railway fails to make a decision within a reasonable time, then and in any such case, save the 'excepted matters' referred to in clause 63 of these conditions, the contractor, after 90 days but within 180 days of his presenting his final claim on disputed matters, shall demand in writing that the dispute or difference be referred to arbitration.

3. According to the petitioner, disputes/differences arose between the parties and at present petitioner has eight claims against the respondent relating to the said contract.

4. Petitioner called upon the respondent to refer the disputes to arbitration but without success, hence this petition.

5. The respondent opposed the petition by filing the reply denying the petitioner's claims on merits rather than on any other ground. The existence of arbitration agreement between the parties and the right of petitioner to get the same adjudicated through the mechanism of arbitration is, however, not disputed.

6. This petition along with certain other petitions was disposed of by S.K. Mahajan, J. vide order dated 6th November, 2000 thereby allowing the present petition and directing the General Manager, Northern Railways to appoint arbitrators in terms of clause 64 of the agreement within three months from the date of the said order to adjudicate upon all the disputes as mentioned in the petition.

7. Aggrieved by the said order, the respondent-Railways filed appeals. Appeals were disposed of by a Division Bench of this Court vide order dated 22nd April, 2002 thereby remanding the petition for fresh decision in accordance with law and in view of the ratio of the decision in General Manager Northern Railways and Anr. v. Sarvesh Chopra, . This petition has accordingly again come up for hearing before this Court.

8. Mr.Jagjit Singh, learned counsel representing the respondent/General Manager, Northern Railways has fairly conceded that none of the claims raised Page 2097 by the petitioner as detailed in para 11 of the petition fall under "excepted matters' either in terms of General Conditions or Special Conditions of the Contract, they being the claims for the work done but allegedly not paid. Further the existence of arbitration agreement and right of the appellant to get the same adjudicated, is also not disputed. Since the contract was executed between the parties and the present petition was filed before the enforcement of the Arbitration & Conciliation Act, 1996, necessarily the present petition is to be treated as one under the 1940 Act and has to be disposed of as such.

9. In the result, petition is allowed and the General Manager Northern Railways is called upon to appoint an Arbitrator in terms of clause 64 of the General Conditions of Contract within a period of eight weeks from the date of this order, for settlement of the disputes to the claims referred to para 11 of the petition or any counter-claim which might be raised by the petitioner or any other/further claim which might be raised by the respondent in relation to the said contract. The arbitrator so appointed by the General Manager, Northern Railways shall enter upon the reference and make his award expeditiously within a period of four months from the date of his entering upon the reference.

Petition stands disposed of accordingly.

At request of counsel for the parties, copy of order is permitted to be given dusty to counsel for the parties.