IN THE HIGH COURT OF JUDICATURE AT PATNA REQUEST CASE No.17 of 2009 ---- M/s Sahil Constraction Co., a Partnership Firm having its place of business near Bus Stand, P.O; Chitarpur, District Ramgarh (Jharkhand) through one of its Partners, Shafique Anwar, S/o Abdul Aziz, Resident of Chitarpur, P.S: Ramgarh Cantt & District- Ramgarh (Jharkhand). -- Petitioner Versus 1. The East Central Railways through its General Manager, having its Office at Zonal Office situated at Hazipur (Vaishali). 2. The Chief Engineer (Construction-N1), East Central Railway, Mahendru Ghat, Patna. 3. The Dy.Chief Engineer (Contruction-1), East Central Railway, Darbhanga. -- Respondents ------ For the petitioner : Mr. S.D.Sanjay, Advocate. For the respondents : Mr. A.Amanullah, Advocate. ---- 04. 30.10.2009 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This petition has been filed by the petitioner for appointment of an arbitrator for deciding the dispute between the petitioner (contractor) and the respondents (East Central Railway) in respect of letter dated 06.12.2008 by which contract vide Agreement No.ECR/CAO/Con/WT/Agt/341 dated 29.01.2007 was terminated. 3. It is not in dispute that a contract was awarded to the petitioner by the respondents vide the aforesaid agreement for construction of sub-structure of major bridge no.7, 7B-1 and 8, construction of minor bridges and earth work in filling/cutting and widening of bank, platform, level crossing and trolley refuses between Narkatiaganj and Bhikhinathori stations in connection with gauge conversion of JYG-DBG-NKE sections (Annexure-1). - 2 - 4. Learned counsel for the petitioner submits that Clause 24 of the said agreement was arbitration clause which provided that all disputes and difference of any kind whatsoever arising out of or in connection with the contract, whether during the progress of 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 same will be dealt with under clauses 63 to 64(7) of General Conditions of Contract, 2001. 5. On 09.07.2008, the petitioner sent a letter (Annexure-5) to the respondents praying therein that it be treated as notice for appointment for adjudication and requested to take appropriate action for appointment of Arbitral Tribunal within thirty days from the receipt of the said letter stating therein about the losses accrued to him due to the acts/negligence of the respondents, namely non-execution of contract, non-measurement of work done etc. 6. Learned counsel for the petitioner submits that although the said letter was immediately thereafter received by the respondents, but they did not heed to the request of the petitioner within sixty days as provided in law and much beyond that period they sent a letter dated 06.12.2008 (Annexure-6) terminating the contract with effect from the date of the alleged completion of the contract, i.e. 31.05.2008. It further transpires that only after the receipt of the said letter, the petitioner has filed the instant case in accordance with clause 24 of the agreement as well as clauses 63 to 64 of the G.C.C 2001 as mentioned above. - 3 - 7. Although, learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioner and submits that since the contract agreement in question has already been terminated due to non-completion of the work within the agreed time, there was no occasion for entertaining such a petition, but the arbitration clause specifically provides that all disputes and differences of any kind whatsoever arising out of or in connection with the said contract, whether during the progress or after its completion of work or even before or after the determination of the contract shall be referred by the contractor to the Railways as per the clauses of GCC, 2001 and hence, this court finds that there was definitely occasion for the petitioner to file this request case for appointment of arbitrator which is quite maintainable. 8. Considering the facts and circumstances of this case as well as the submissions made by learned counsel for the parties, let Hon’ble Mr. Justice U.P.Singh, a retired Judge of this court and retired Chief Justice of Kerala High Court be appointed as an Arbitrator. The parties are directed to approach the said Arbitrator within one month from today and the Arbitrator will be at liberty to fix his remuneration, expenses and the date for hearing and deciding the arbitration matter in accordance with the specific provisions of law. 9. With the aforesaid direction, this request case is disposed of. Sunil (S. N. Hussain, J.)