1 S.B. Civil Misc. Arbitration Application NO.49/2005 (M/s Hulaschaqnd Bhutra Vs. Union Of India & Ors.) DATE OF ORDER : 4.8.2009 HON'BLE MR. PRAKASH TATIA,J. Mr.PR Purohit for the applicants. Mr. Ravi Bhansali, for the respondent. <><><> The applicant-petitioners have entered into contract with the non-petitioner department. Contract agreement is NO. A/cs/dy,CE/C-II/JU dated 30.12.1994. The detailed facts in respect to the contract is not necessary because of the reason that entering into contract between the parties is not disputed. The contention of petitioner is that petitioner has certain amount due in the respondents which has been given in para 3 of the application. The total claim of the petitioner is of Rs. 61,90,000/-. The petitioner requested by letter dated 14.11.2003 for adjudication of the dispute , difference and claim etc. arising out of in relation to the contract. The copy of the letter has been placed on record as Annex.3 then petitioners served a notice under Section 11 of the Arbitration and Conciliation Act, 1996 dated 14.8.2004 upon the respondents and requested the 2 respondents for constitution of arbitration tribunal within a period of 30 days from the date of receipt of the notice. The respondents did not appoint the arbitrator, therefore, petitioner submitted this application under Section 11 of the Act of 1996. The only contention and objection raised by the respondents is that the petition is pre-mature. That issue has already been dealt with by this Court while deciding SB Civil Review Application No. 04126/06 and, therefore, the contention of the respondents that the arbitration application is pre-mature, is rejected. There is force in the submission of learned counsel for the respondents that clause 64 3(a)(ii) provides, who can be appointed arbitrator. This Court had occasion to consider the same clause that is clause NO. 64 in (b) (a) (ii) in SB Arbitration Application No. 50/05 M/s Pannalal Construction Company Vs. Union of India & Ors. Decided on 26.5.2009. That matter came up for consideration again as this Court in that arbitration petition allowed the arbitration application No. 50/05 vide order dated 18.9.2006 and appointed sole arbitrator upon which 3 Union of India preferred Special Leave to Appeal before the Apex Court which was allowed by the Hon'ble Apex Court vide order dated 18.8.2005. Hon'ble Apex Court observed that the arbitrator can be appointed, keeping in view the requirement of the Sub clause 8 of Section 11. In view of the above and in view of the clause 64 (3) (a) (ii)(iii) which provides who can be arbitrator and in case such person or authority cannot be arbitrator than matter cannot be referred to arbitrator at all. In view of the above agreement between the parties that either there should be arbitrator as per the contention of the contract or there may not be arbitration at all, the arbitrator can be appointed as agreed by the parties. Therefore, this arbitration application is allowed to the extent that case is made out by the petitioner for appointment of arbitrator but in view of the condition No. 64 3 (a)(ii)(iii), the General Manager of the Railway is directed to either act as a Sole Arbitrator or he may appoint the arbitrator who may be Gazetted Railway Officer nominated by the General Manger of Railway in accordance with the clause (3) of the 64 of the contract. The arbitrator shall be appointed within a period of one month 4 from the date of receipt of copy of this order by the General Manger of the Railway. The copy of this order may be sent to the General Manager of the concerned Railway by the learned counsel for the parties. Accordingly, the arbitration application is allowed. (PRAKASH TATIA),J. arti