S.N. Prasad, J.

1. The instant application under Section 11(6) of the Arbitration & Conciliation Act, 1996 has been filed seeking a direction for appointment of an Arbitrator for resolution of dispute in view of arbitration clause as contained under Clause 25 of the Contract Agreement dated 23.03.2015.

2. The brief facts of the case, as per the pleading made on behalf of the petitioner-applicant, reads as under:

The petitioner/applicant being declared successful bidder, the respondent issued Letter of Acceptance dated 06.01.2015 in favour of petitioner for construction of Bridge on River Konar along with its Approach Road over Bridge (RoB) on Gomoh-Barkakhana Railway Line at BTPS, DVC, Bokaro. Pursuant thereto, the parties entered into a Contract Agreement on 23.03.2015 for the said work. The contract value is Rs. 134,21,98,273/- (Rupees One Hundred Thirty Four Crores Twenty One Lakhs Ninety Eight Thousand Two Hundred Seventy Three only) and time period for completion of the project was 36 months from the date of commencement of work, as per schedule of the contract.
It is the case of the petitioner that there was delay on the part of the respondent in handing over the site and requisite drawings and the part of the project site which was handed over to the petitioner had large scale hindrances, as such the machinery and manpower so deployed in the project by the petitioner remained idle, which caused financial loss to the petitioner, which the petitioner communicated to the respondent vide representation dated 08.10.2020. The said representation was sent for invoking the provision of Clause 25 of the Contract Agreement dated 23.03.2015 for issuance of proper instruction for redressal of the grievances and adjudication of the claims of the petitioner. The respondent vide letter dated 24.10.2020 rejected the claim/representation of the petitioner stating to be not justified except the delay in part of issuance of drawings for ROB work. It is the case of the petitioner that the Engineer-in-charge did not provide opportunity to be heard and explain the claims as made by the petitioner.

Thereafter, the petitioner preferred appeal before the Appellate Authority i.e., the Chairman-cum-Managing Director vide letter dated 07.11.2020, which was rejected by the respondent vide order dated 12.12.2020 stating the claim of the petitioner to be not justified.

Being dissatisfied with the order passed by the appellate authority, the petitioner sent a notice under Clause 25 of the Agreement dated 23.03.2015 on 08.01.2021 to the Appointing Authority as specified in Schedule F of the Contract Agreement for settlement of disputes but the respondent did not reply to the said notice.

The petitioner left with no other remedy, approached this Court invoking power conferred under Section 11(6) of the Act, 1996 for appointment of Arbitrator for resolution of dispute between the parties.

3. Mr. Parth Jalan, learned counsel appearing for the petitioner has submitted that the contract has been awarded in favour of petitioner and in course of execution of work, dispute arose between the parties, therefore, the petitioner availed the pre-arbitral mechanism, as provided under Clause 25.2 of the Contract Agreement, as would be evident from Annexure 3, 5 and 7 of the instant application. But even after expiry of the statutory period, when no arbitrator was appointed, the petitioner has approached this Court seeking direction for appointment of arbitrator.

4. In pursuance to notice issued by this Court on 12.05.2022, Mr. Biren Poddar, learned senior counsel has put his appearance on 04.08.2022 and sought for two weeks' time to file objection to the instant application. Pursuant thereto, objection by way of counter affidavit has been filed by the respondent on 16.08.2022.

5. Today, Mr. Deepak Kumar Sinha, learned counsel for the respondent No. 1-RITES appeared and referring to the counter affidavit, has submitted that the instant application is not maintainable since some of the disputes, which are the subject matter of instant application is not arbitrable. In this regard, he has referred to Clause 1.16 of the Special Conditions of Contract, which has been agreed in between the parties, which speaks that in case of any delay in handing over of the site to the contractor, the employer shall only consider suitable extension of time for the execution of the work. It should be clearly understood that employer shall not consider any compensation whatsoever i.e., towards idleness of contractor's labour equipment etc. It has been contended that in view of Clause 1.16 of the Special Conditions of Contract the claim which has also been raised on account of non-handing over the site to the contactor are neither arbitrable nor referable. It has further been contended that likewise other claims, which is the subject matter of dispute are also not arbitrable in view of the conditions stipulated under the Special Conditions of Contract.

He has also taken the ground by raising the objection that the request which has been taken for appointment of arbitrator is not having been signed by the proper party i.e., the party to the contract.

6. Mr. Parth Jalan, learned counsel appearing for the petitioner has submitted the contention which has been raised by way of objection for holding the instant application not maintainable is not worth to be considered at this stage of reference, since, the issue which has been raised is also subject matter of consideration by the arbitrator.

So far as the issue which has been raised about non-signing of the agreement by the proper party, the same can also be looked into by the arbitrator and therefore, taking into consideration the Arbitration Clause 25.2 of the Agreement, it is a fit case where the arbitrator is to be appointed for adjudication of the dispute.

7. In furtherance to the argument advanced by learned counsel for the petitioner, Mr. Deepak Kumar Sinha, learned counsel for the respondent No. 1 has submitted that if order of appointment of arbitrator is passed, liberty may be granted to the respondent No. 1 to raise all issues for its consideration/adjudication by the arbitrator.

8. This Court, having heard learned counsel for the parties has gone through condition of arbitration, as contained under Clause 25.2 of the Agreement, which reads as under:

"CLAUSE 25

Settlement of Disputes & Arbitration

1. XXX XXX XXX

2. Except where the decision has become final, binding and conclusive in terms of Sub Para (1) above, disputes or differences shall be referred for adjudication through arbitration by a sole arbitrator appointed by the Appointing Authority. The selection of Arbitrator by the Appointing Authority will be governed by the fact whether the dispute is (i) between two Public Sector Enterprises or (ii) between a Public Sector Enterprise and a Government Department or (in) Otherwise.

In case the dispute does not fall under item (i) or (ii) of this Para the Appointing Authority, shall appoint the sole Arbitrator. Within 30 days of receipt of notice from the Contractor to refer the dispute for Arbitration, the Appointing Authority stipulated in Schedule F shall send to the Contractor a list of three serving officers of RITES of appropriate status depending on the total value of claim, who have not been connected with the work under the Contract. The Contractor shall, within 15 days of receipt of this list select and communicate to the Appointing Authority, the name of one officer from the list who shall then be appointed as the Sole Arbitrator. If the Contractor fails to communicate his selection of name within the stipulated period, the Appointing Authority shall without delay, select one officer from the list and appoint him as the Sole Arbitrator."

It is not in dispute that the petitioner/applicant has resorted to the pre-arbitral mechanism as also dispute has not been resolved, therefore, request was made for appointment of arbitrator, as would appear from letter dated 08.10.2020 (Annexure 3), letter dated 07.11.2020 (Annexure 5) and letter dated 08.01.2021 (Annexure-7) of the arbitration application.

But, even after request having been made, arbitrator was not appointed within the statutory period, the instant application has been filed for appointment of sole arbitrator for adjudication of the dispute.

The fact about resorting to pre-arbitral mechanism and request for appointment of arbitrator, as would appear from letter dated 08.10.2020 (Annexure 3), letter dated 07.11.2020 (Annexure 5) and letter dated 08.01.2021 (Annexure-7) of arbitration application has not been denied by the respondent No. 1 even though the counter affidavit has been filed.

9. This Court, therefore, taking into consideration the fact about resorting to the pre-arbitral mechanism and the request for appointment of arbitrator has been made but even after lapse of the statutory period of 30 days, no arbitrator has been appointed, is of the view that it is a fit case where the power conferred to this Court under Section 11(6) of the Arbitration and Conciliation Act, 1996 is required to be exercised for appointment of Arbitrator, considering Clause 25.2 of the contract.

10. Accordingly, the instant appeal stands allowed.

11. As suggested by the parties, Hon'ble Mr. Justice Tapan Sen, Former Judge, Jharkhand High Court, residing at Flat No. -3903, Block-C, Sriram Gardens, Opp. Reliance Mart, Kanke Road, Ranchi, PIN-834008, is appointed as sole arbitrator to adjudicate the dispute between the parties, subject to provision as stipulated under Section 12 (5) of Arbitration and Conciliation Act, 1996.

Learned Arbitrator would be free to lay down fees and other expenses towards conduct of the arbitration proceedings, however, keeping into account the ceiling prescribed under Schedule IV of the of 1996 as amended.

The Registrar General of this Court is directed to send copy of the entire pleadings along with copy of the entire order sheet to the learned Arbitrator.

Needless to say that the parties will be at liberty to raise all the legal issues for its consideration by the Arbitrator, in accordance with law.

Both the parties shall co-operate in the hearing before the learned Arbitrator and they shall not ask for any unnecessary adjournment.

12. The instant arbitration application accordingly, disposed of.