IN THE HIGH COURT OF JUDICATURE AT PATNA REQ. CASE No.29 of 2008 M/s Shanti Steels, a Proprietory Concern having its place of business at Ghitkaia Road, Bairiya, P.S. Brahamapura, District Muzaffarpur through its Proprietor, Amar Kumar Agrawal, S/o Shri Sajjan Agrawal, resident of 101, Shanti Vihar Apartment, P.S. Kotwali, District Patna. ……… Petitioner Versus ----------- 1. East Central Railway having its Zonal Office situated at Hajipur, District Vaishali through its General Manager. 2. The General Manager, East Central Railway having its Zonal Office situated at Hajipur, District Vaishali. ……… Respondents. ------------ For the Petitioner : Mr. S.D. Sanjay, Advocate. For the Respondents : M/s Chittaranjan Singh, Sr. Advocate & Sidhartha Prasad, Advocate. ---------- 04/ 21.11.2008 Heard learned counsel for the petitioner as well as learned counsel for the respondents. 2. This request case has been filed by the petitioner under the provision of sub-sections (4) and (5) of section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as `the Act’ for the sake of brevity) for nomination of an Arbitrator in the present case. 3, Learned counsel for the petitioner submits that the petitioner is carrying on business of purchase of Scrap from Railways, which sells its scrap by way of auction, for which purpose they had Standard Conditions of Auction Sale governing its terms and conditions. It is also stated that the petitioner participated in auction of different lots of scrap and became a successful highest bidder by quoting highest price for that lot, for which authority letters were issued to the petitioner, but when the petitioner wrote letters to the authorities of the respondents seeking concurrence for deposit of 2 money with interest, no response was made by the respondents even after receipt of the said letters, due to which it became impossible to lift the material till the last date fixed and even further letters by the petitioner for refixing of the said lots and the date for deposit without any interest as well as the time for lifting of material without any ground rent, remained unreplied. Hence, the petitioner had no option but to file a petition before the concerned authority on 04.07.2008 for nomination of an Arbitrator as per Clause 8 the Standard Conditions of Auction Sale, but on that petition also no action was taken much beyond the period prescribed under section 11(4)(a) of the Act i.e. 30 days and, thus, the petitioner was left with no option but to file the instant request case on 17.09.2008. In this regard learned counsel for the petitioner refers to a decision of the Hon’ble Apex Court in case of Datar Switchgears Ltd. vs. Tata Finance Ltd. and another, reported in (2000)8 Supreme Court Cases 151. 4. On the other hand, learned counsel for the respondents vehemently opposes the contention of learned counsel for the petitioner and submits that the Standard Conditions of Auction Sale (Annexure 1) and Catalogue of Auction(Annexure 2) stating the terms and conditions by the Railways were only standard forms and cannot be legally termed as agreement between the parties. Hence, he submits that there is no need for appointment of any Arbitrator in the instant case. 5. Considering the averments of the parties and the materials on record, it is quite apparent that the assertion of the respondents that 3 there was no arbitral agreement between the parties is falsified by their own conduct as they had themselves nominated an Arbitrator in the analogous matters for the settlement of similar disputes as per the provision of the Standard Conditions of Auction Sale and the Catalogue of Auction indicating the terms and conditions (Annexures 1 and 2) and hence now they cannot be allowed by this Court to take a `U’ turn and claim that there was no agreement between the parties. 6. So far the question regarding filing of this case is concerned, it is an admitted fact that the petitioner had sent a letter to the respondents on 10.07.2008(Annexure 6) requesting nomination of an Arbitrator to settle the dispute between the parties, which was duly received by the respondents. It is also not in dispute that for more than a month the respondents took no action nor even cared to send any reply to the petitioner and hence the petitioner was quite justified in filing the instant request case on 17.09.2008 for nomination of an Arbitrator under the provision of section 11(4)(a) of the Act. 7. In the aforesaid facts and circumstances and for the reasons indicated above, Mr. N.C. Lala, Retired District and Sessions Judge, resident of C-101, Kaushalya Estate, Bander Bagicha, Patna-1, is nominated an Arbitrator to adjudicate the dispute in question between the parties. The learned Arbitrator shall be at liberty to adopt the procedure to be gone into during the arbitral proceeding in accordance with law, as also to fix his remuneration. The parties are directed to appear before the said learned Arbitrator at his residence within a month from today along with a copy of this order. 4 Accordingly, the instant request case is disposed of with the aforesaid directions. Let a copy of this order be communicated to the learned Arbitrator at his Patna residence. ( S. N. Hussain, J. )