1 2025:CGHC:3472 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ARBR No. 37 of 2024 • Subham Infrastructure Through Its Partner Shri Uday Nath Jha, S/o Late Shri Sadanand Jha, Aged About 54 Years, R/o L-2, Vinoba Nagar, Near Amba Tower, Bilaspur (C.G.) ... Applicant versus 1. Union of India Through The General Manager, South East Central Railways, Bilaspur (C.G.) 2. The Senior D.E.N (East) South East Central Railways, Bilaspur (C.G.) 3. Senior D E N (Co-Ord) South East Central Railways, Bilaspur (C.G.) ... Respondent(s) For Applicant : Mr. Harshmander Rastogi, Advocate. For Respondents/UOI : Mr. Ramakant Mishra, Deputy Solicitor General. Hon’ble Mr. Ramesh Sinha, Chief Justice Order on Board 20.01.2025 1. This is an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator. 2. The facts, in brief, as projected by the applicant are that the applicant is a partnership firm and is inter-alia engaged in execution of Civil Construction PREETI KUMARI Digitally signed by PREETI KUMARI Date: 2025.01.21 19:50:03 +0530 2 and Maintenance Works of various Departments. The applicant has authorized Shri Uday Nath Jha, Partner of the Petitioner firm to initiate the present proceedings on behalf of the applicant. The respondent No. 1 is a Zonal Headquarter of Indian Railways situated in the Central India and is serving in the States of Chhattisgarh, Orissa, Madhya Pradesh and Maharashtra. The respondent Nos. 2 is its OfÏcer. The respondents issued the LOA to the applicant Acceptance letter No: DRM-ENGG-BSP-T-173- 17-18/RCC BOX/ADEN-RIG/SI/285, dated 21.08.2018 for the "Casting and insertion of RCC Box by pushing technique and Provision of RCC box by cast in situ for crossing 2 Nos. 900 mm diameter underground Make-up- Water pipelines of NTPC at Km 524/07 and 524/10 in between IB- Brajrajnagar station under the jurisdiction of ADEN/Raigarh". 3. Mr. Harshmander Rastogi, learned counsel for the applicant submits that a contract agreement No: 104/DEN-BSP/18-19, dated 26.11.2018 was entered between both the parties for a total Contract Value of Rs. 6,65,18,417/- and with a Contract period of 12 months. Immediately, after issuance of LOA and entering into the contract, the applicant had started executing the work and the work of Box Pushing was also started in January, 2021 and was closed due to 4 Meter fill height and new filling of 4th line as lot of pressure developed on lead box and for the same, applicant have been repeatedly demanding RH girder for proper push of box and safety of rail track, however, despite repeated reminders, no action was taken by the Railways. As a result of which the applicant has suffered huge financial losses. Despite repeated requests the girder was not provided and the execution of balance work would take only a period of 3 months but since Railways had not cooperated the same could not be completed even though it came to applicant knowledge that the sanctions/orders from the higher authority have already been given for the releasing of the said 3 equipment. It may also be noted that deployment of RH girder was not in scope of work of the applicant and as such it was the responsibility of the Railways to provide for the same and the Railways by not providing the same have committed breach of contract. 4. Mr. Rastogi further submits that the Railways is solely responsible for delay is execution of the work as is also evident from the fact that all the extension of time were granted to us under Clause 17-A of GCC. As on date the Contract has also expired with efÒux of time on 30.05.2022. Thereafter, a letter was sent by applicant dated 05.04.2022, in which it was informed to the respondent that after the situation of Covid-19 pandemic came under control, normal functioning as per the contract was started, however there was again a hurdle that the required equipment for relieving girder is not provided by respondent department which has stayed the procedure of Pushing of box since long and is not only delaying the entire work contract but is also incurring heavy losses to applicant firm since the equipment, materials and labours which are used in contract are costing applicant firm on daily basis and also due to the existing circumstances there is heavy inflation in the market because of which the work contract is costing applicant much more in comparison to the period for which the contract was entered into. After resorting to all possible manners applicant finally wrote a letter dated 10.05.22 to respondents requesting to extend the date of the work considering the inevitable conditions of the monsoon with the revised price schedule in accordance to the current market rate along with the legitimate compensation for the losses incurred already or to foreclose this concerned Contract providing adequate lawful compensation for the work done and for the losses incurred in accordance to the applicable General Conditions of Contract. Subsequent to the letter dated 10.05.2022, a determination notice dated 24.04.23 was sent by respondents ofÏce to 4 applicant after which there were various oral communication for deciding and releasing of the final bills for the work done by applicant firm. However, to the shock and dismay, it was informed to applicant that since the work is still pending and the determination is done, therefore applicant is not liable to get any further payment and therefore payment which is to be received by applicant from respondent ofÏce for the subjected work is nil. 5. Mr. Rastogi also submits that in response to the letter of determination notice, applicant sent a letter dated 22.12.2023 to respondent ofÏce in which it was replied that major portion of the work awarded by respondent is done by applicant firm and the only work which is remaining is of pushing of the RCC box and reminders to respondent department in regard to the non- providing of the required equipment for relieving girder were also sent on regular basis and therefore the non-completion of work is because of the department's fault and not of Applicant. Subsequently a letter cum notice dated 26.02.2024 was sent to respondents calling upon respondents to pay the remaining dues along with providing applicant client the appropriate compensation for the losses with a rate of 10% per annum within 10 days of the receipt of the reply/notice. Time and again, the applicant requested the respondents to resolve the claims, however, the respondents failed to pay heed to same. Accordingly, the applicant vide its notice of settlement of dispute dated 16.05.2024 submitted various claims for settlement in accordance with clause 63 of GCC and requested respondents to settle the dispute between the parties. When the said letter was not answered, the applicant vide Its letter dated 19.09.2024 invoked the Arbitration clause in accordance with clause 64 of GCC referring the disputes to arbitration inter- alia stating that "Accordingly, you are requested to constitute an arbitral tribunal of independent person, preferably of a retired judge for adjudication of the claims. The respondent vide its letter dated 19.09.2024 while 5 acknowledging the receipt of the demand of arbitration from the applicant, informed the applicant that the request of applicant for constitution of arbitral tribunal consisting of retired judge, which is beyond the purview of the respondent Railway department. In view of the forgoing compelling circumstances there is no effective remedy to the applicant except approaching this Hon'ble Court for appointment of an Independent Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 as the condition precedent for the application has been satisfied as the respondent has failed to appoint the Arbitrator at the request by the Applicant to do so. Accordingly, the applicant is approaching this Hon'ble Court, for appointment of a sole Arbitrator. 6. Mr. Ramankant Mishra, learned counsel appearing for the respondent submits that the respondents would have no objection if this Court appoints any Arbitrator for resolving the dispute between the parties. 7. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 8. On the last date of hearing i.e. on 06.11.2024, this Court had granted two week’s time to the learned Deputy Solicitor General appearing for the respondents to file return, however, no return has been filed till date. 9. A query was put to learned counsel appearing for the parties as to whether they are agreeable for a common name who can be appointed as Arbitrator, learned counsel for the parties submitted that they would have no objection if any retired Judge of this High Court is appointed as the Sole Arbitrator. They further submit that Hon’ble Mr. Justice N.K. Agarwal who is a retired Judge of this High Court may be appointed as the Sole Arbitrator. 10. In view of the above consensus between the learned counsel for the parties, Hon’ble Mr. Justice N.K.Agarwal a retired Judge of this High Court is appointed to act as the Sole Arbitrator to resolve the dispute involved in this 6 arbitration request between the parties. 11. The Registry is directed to communicate this order to Hon’ble Mr. Justice N.K.Agarwal in the proper address. 12. The remuneration of the Arbitrator shall be settled with the mutual consent of the parties. 13. The arbitration request petition, accordingly, stands allowed. Sd/- (Ramesh Sinha) CHIEF JUSTICE Preeti