IN THE HIGH COURT OF JUDICATURE AT PATNA REQ. CASE No.78 of 2007 1. M/s Kamal Construction through its Partner Sri Yogendra Singh at and P.O. Mehdauli, P.S. and District Begusarai. 2. Sri Yogendra Singh S/o Tribeni Singh, Partner, M/s Kamal Construction at and P.O. Mehdauli, P.S. and District Begusarai…………………………..Petiotioners. Versus 1. The Union of India, 2. The Chief Administrative Officer (Const.) East Central Railway, Mahendru Ghat, Patna, P.O. and P.S. Pirbahore, District Patna. 3. The Chief Engineer (Const.), Jharkhand, East Central Railway, Mahendru Ghat Patna, P.O. and P.S. Pirbahore, District Patna. 4. The Deputy Chief Engineer(Const.), East Central Railway, Dhanbad, P.O. and P.S. Dhanbad, District Dhanbad. 5. The Director of Audit, East Central Railway, Hazipur, P.S. Hazipur,District Vaishali.………Opposite parties. For the petitioners : Mr. Pramod Kumar Sinha, Advocate. For the opposite parties: Mr. A. Amanullah, Advocate. ----------- 06/ 20.07.2009 Heard learned counsel for the petitioners and learned counsel for the opposite parties. 2. This request case has been filed by the petitioners for appointment of an Arbitrator for settling the dispute between the parties. Admittedly the petitioners are the contractors of the Railways, who being the highest bidder were entrusted with the contract work of supplying materials, etc. for the Railways and for completing the contractual work. 3. It transpires that for the said purpose an agreement (annexure-1) was entered into between the petitioners and the opposite parties on 29.03.2006 but subsequently a dispute arose between them with regard to which the petitioners submitted their 2 claim on 23.04.2007 which was admitted by the Railways on 14.02.2008 (annexure-E) whereafter on 22.05.2007 the petitioners referred the dispute to the Railways under clause 23 of the said agreement and clauses 63 and 64 of the General Condition of Contract, 2001 by way of serving a legal notice upon the opposite parties (Railways). 4. Learned counsel for the petitioners submits that since no step was taken by the opposite parties within the required time i.e. 30 days, he filed the instant request case on 05.10.2007 and only after learning about the filing of the request case the opposite parties (Railways) vide order dated 14.02.2008 (annexure-E) appointed Arbitrator without considering the choice of the petitioners, which is detailed in paragraph-8 of the petitioners’ rejoinder. Today a list of three persons has been supplied by learned counsel for the petitioners out of whom Arbitrator is requested to be chosen for the petitioners. 5. On the other hand, learned counsel for the opposite parties (Railways) opposes the contentions of learned counsel for the petitioners and submits that as per the terms of agreement the petitioners had to submit their claim and only after the passage of required period the dispute can be referred for arbitration under the provisions of the Act but nothing of the sort having been done by the petitioners, there was no occasion for the petitioners to send a notice to the Railways for appointment of Arbitrator and hence no action was taken in that regard. He further submits that when the opposite 3 parties (Railways) learnt about the filing of the request case it treated it as the claim of the petitioners submitted in the court, against the names of four persons sent to the petitioners by the Railways vide letter dated 06.12.2007 to choose their Arbitrator and only thereafter order dated 14.02.2008 appointing the Arbitrators was passed by the Railways. To the said letter the petitioners replied that since they had already filed the request case the matter is to be decided by the court. 6. Considering the entire facts and circumstances it transpires that definitely there is a dispute and claim has been raised by the petitioners and furthermore the petitioners have referred the dispute for settlement by Arbitrator, but they are not ready to accept any of the persons named by the Railways as Arbitrator on their behalf for reasons stated by them. On the other hand, opposite parties(Railways) are also not ready to accept the names of the persons whom the petitioners have referred as Arbitrator on the ground that the same is not in accordance with the provisions of General Condition of Contract, specially clause 64(3)(a) (ii). 7. In the aforesaid facts and circumstances, this court thinks it fit and proper to refer the dispute to an independent Arbitrator for hearing the parties and settling the dispute by preparation of award in accordance with the Arbitration and Conciliation Act, 1996. Accordingly Mr. justice Uday Pratap Singh the retired Chief Justice of Kerala High Court is appointed as Arbitrator for the said purpose. 4 8. Both the parties shall approach the said Arbitrator within two weeks from today whereafter the said Arbitrator will fix his remuneration and expenses which would be borne by both the parties half and half. Furthermore, the Arbitrator will fix the matter for hearing as per his convenience considering the seriousness and urgency of the matter. 9. With the aforesaid directions, this request case is disposed of. harish/ ( S.N.Hussain, J)