S.B. Civil Misc. Appeal No.1193/2010 Khurana Constructions vs. Union of India & Anr. Dated : 12.07.2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr. DD Sharma, for the appellant. *** Challenge in this misc. appeal is to the order dated 30th March, 2010, rendered by the District Judge, Ajmer whereby an application filed by the appellant under Section 9 of the Arbitration & Conciliation Act, 1996 has been dismissed. 2. Having heard the learned counsel for the appellant and carefully perused the impugned order, it is noticed that the work order was issued to the appellant by respondent-railways which was to be completed within a stipulated period. The appellant failed to complete the work within the stipulated period, as a result of which the respondent extended the period from time to time, but the appellant failed to complete the work even in the extended period. Resultantly, the respondent terminated the contact and apprised the appellant that the work should be completed at the risk and cost of the appellant. The appellant filed an application under Section 9 of the Arbitration & Conciliation Act, 1996 and prayed that arbitrator be appointed to settle the dispute arising between the -2- parties. 3. The learned District Judge, Ajmer, having reflected over the submissions made by both the parties and carefully scanned the condition of the contact gave a finding that the case of the appellant with regard to appointing an arbitrator was not governed by the Arbitration Clause, as under condition No.63 of the contract certain matters, as mentioned in condition No.62, were excepted. It is categorically stated in condition No.63 of the contract that all disputes and differences of any kind whatsoever arising out of or in connection with the contract, whether during the progress of the work or after its completion and whether before or after the determination of the contract, shall be referred by the contractor to the Railway and the Railway shall within 120 days after receipt of the contractor's representation make and notify decisions on all matters referred to by the contractor in writing, provided that matters for which provisions has been made in clauses 8, 18, 22(5), 39, 43 (2), 45(a), 55, 55-A(5), 57, 57(A), 61 (1), 61(2) and 62(1) (xiii)(B)(e) of General Conditions of Contract or in any clause of the Special Conditions of the Contract shall be deemed as 'excepted matters', and decisions of the Railway authority thereon shall be final and binding on the contractor; provided -3- further that excepted matters shall stand specifically excluded from the purview of the arbitration clause and shall not be referred to arbitration. 4. The case of the appellant falls in the Condition No.62 of General Condition of contract and all the disputes and differences arising out of or in connection with matters mentioned in condition No.62 of General Conditions of contract are not required to be referred to the arbitrator. The learned District Judge, having considered all these aspects of the matter, refused to appoint the arbitrator in the instant case and dismissed the application filed under Section 9 of the Arbitration & Conciliation Act, 1996. The finding arrived at by the learned District Judge, appears to be just and proper and in accordance with the General conditions of contract. I am in full unison with the finding arrived at by him and to my firm view, the impugned order of the learned District Judge, Ajmer warrants no intervention and the misc. appeal deserves to be dismissed at the threshold. 5. For the reasons stated above, the misc. appeal being bereft of any merit stands dismissed. (MAHESH BHAGWATI)J. Pcg