OCD-36 ORDER SHEET IN THE HIGH COURT AT CALCUTTA COMMERCIAL DIVISION ORIGINAL SIDE AP-COM/232/2026 SREEPATI RANJAN GOPE AND SONS VS UNION OF INDIA AND OTHERS BEFORE: The Hon’ble JUSTICE GAURANG KANTH Date : 8th July, 2026. Appearance: Mr. Amritam Mondal, Adv. Ms. Swati Agarwal, Adv. Mr. Arindam Samanta, Adv. …for the petitioners Mr. Uday Sankar Bhattacharya, Adv. Ms. Banani Bhattacharya, Adv. ...for the respondents The Court: Affidavit-in-opposition filed by the respondent is taken on record. Reply to the said affidavit-in-opposition filed by the petitioner is also taken on record. The petitioner has preferred the present petition under Section 11(6) of the Arbitration and Conciliation Act seeking constitution of an Arbitral Tribunal comprising of a sole Arbitrator to adjudicate the disputes between the parties. The Learned Counsel for the petitioner submits that the petitioner had participated in a tender floated by the respondent for “Execution of the work of Through Rail Renewal (Primary) i.e. TRR(P) of 65.539 Km in Kharagpur- 2 Bhadrak section of Kharagpur Division under the jurisdiction of Sr. DEN (South)/KGP” and was declared as a successful bidder. A letter of acceptance dated 14th November, 2024 was issued in favour of the petitioner. It is submitted that the petitioner had furnished earnest money of Rs. 3,57,500/- and a performance bank guarantee for a sum of Rs. 19,50,000/-. During the course of the performance of the work, dispute arose between the parties and the respondent terminated the said contract by letter dated 27th February, 2025. The Learned Counsel for the petitioner submits that the petitioner had challenged the said termination by filing a writ petition being WPA No. 5960 of 2025. The said writ petition was disposed of vide order dated 16th May, 2025 granting liberty to the petitioner to avail the remedy under the Dispute Resolution Mechanism contained in the contract. Pursuant, thereto, the petitioner issued a notice under Section 21 of the Arbitration and Conciliation Act, dated 22nd July, 2025. The respondent replied to the said notice on 27th August, 2025 denying the claims of the petitioner. Thereafter the petitioner had approached this Court by filing AP- COM/746/2025 under Section 11 of the said Act. However, the said petition was dismissed vide order dated 27th November, 2025 on the ground that notice issued under Section 21 of the Act was defective. The Court had granted liberty to the petitioner to invoke the Arbitration clause in accordance with law. The petitioner thereafter issued a fresh notice under Section 21 of the Act on 16th December, 2025 followed by a further communication dated 6th March, 2026. Despite issuing the said notice, the respondent did not take any steps for constitution of the arbitral tribunal. 3 Learned Counsel for the petitioner states that the General Conditions of Contract (GCC) contain clause 64, which provides that the disputes shall be referred to Arbitration. It is contended that the parties are bound by the Arbitration Clause contained in the said GCC. Learned counsel for the respondent does not dispute the existence of an arbitration clause or the execution of the work contract. However, learned counsel for the respondent raises three preliminary objections and submits that the present petition is not maintainable and is liable to be dismissed. The first objection raised by learned counsel for the respondent is that the present petition is barred under Order XXIII Rule 1(4) of the Code of Civil Procedure, as the petitioner had earlier approached this Court by filing AP-COM/746/2025, which was dismissed on 27th November, 2025, wherein no liberty was granted to the petitioner to institute a fresh proceeding. Learned counsel for the respondent states that the claim raised by the petitioner in the present petition is barred by Order XXIII Rule 1(4) and is hit by the principle of res judicata, since it is a fresh claim and no liberty had been granted by this Court to the petitioner while disposing of AP- COM/746/2025 to institute a fresh petition. Learned counsel for the respondent further states that the present petition ought to be dismissed for non-joinder of necessary parties, as the petitioner has not impleaded the Senior Divisional Engineer, Railways, as a party respondent to the present petition. He further states that respondent no. 1 ought to be represented through the General Manager of Railways and not through the Principal Secretary. The third contention raised by learned 4 counsel for the respondent is that the letter written by the petitioner does not constitute a valid notice invoking arbitration under Section 21 of the Arbitration and Conciliation Act, 1996. This Court has heard learned counsel for the parties and perused the materials on record. This Court is prima facie of the view that the present petition is not barred under Order XXIII Rule 1(4) of the Code of Civil Procedure, 1908, since the order passed in AP-COM/746/2025 specifically recorded that the petitioner is at liberty to invoke the arbitration clause in accordance with law, thereby granting liberty to the petitioner to file appropriate proceedings. The petitioner had earlier approached this Court by filing AP- COM/746/2025, which was disposed of on the ground that the notice issued under Section 21 of the Arbitration and Conciliation Act was defective. However, this Court expressly observed that the petitioner would be at liberty to file appropriate proceedings to invoke the arbitration clause in accordance with law. The present petition has been filed pursuant to the said liberty under Section 11(6) of the Arbitration and Conciliation Act, 1996. Accordingly, the contention of the respondent that no such liberty had been granted to the petitioner is devoid of merit. The objection regarding non-joinder of parties is also without merit. The General Manager, Railways, has already been impleaded as a party to the present proceedings, and therefore the necessary party is before this Court. The contention raised by the respondent in this regard has no legal basis and is accordingly rejected. 5 Learned counsel for the respondent had relied upon a judgment of the Hon'ble Supreme Court in Rahiv Gaddh Vs. Subodh Parkash reported as 2026 SCC OnLine SC 507. The facts of the present case are not attracted to the dictum of the said judgment, and the same has no bearing on the present petition. The parties have not disputed the existence of the arbitration clause, and the respondent has also admitted to the arbitration clause contained in Clause 64 of the General Conditions of Contract. It is now well settled principle of law that the jurisdiction of the court under section 11 of the Arbitration and Conciliation Act, 1996 is confined to a prima facie examination of the existence and validity of the arbitration agreement. In view of section 11(6A) of the Act: “(6A)- the Supreme Court or as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall notwithstanding any judgment decree or order of any court, confine to the examination of the existence of an arbitration agreement.” The scope of enquiry under Section 11 of the Act is thus limited to examining whether there exist a valid agreement between the parties containing an arbitration clause and whether the dispute sought to be referred arise therefrom. The said requirements stand satisfied in the facts of the present case. The agreement entered into between the parties contains an arbitration clause, the existence whereof is not in dispute and the disputes raised by the petitioner arise out of the said agreement. 6 Accordingly, this Court appoints Mr. Rohit Das, Adv. (Mob No. 9831916012), learned Advocate as an arbitrator to adjudicate the disputes between the parties . The learned Sole Arbitrator shall enter reference in due compliance with Section 12(5) of the Act. The learned sole Arbitrator shall fix his remuneration in terms of the fourth schedule of the Act. A copy of this order shall be communicated to the learned Sole Arbitrator to take necessary steps. It is clarified that all questions relating to the arbitrability of the disputes, the admissibility of the claims, limitation, jurisdiction, and all other issues are left open to be urged before the learned Sole Arbitrator, who shall decide the same in accordance with law. With the aforesaid direction to the present petition is disposed of. (GAURANG KANTH, J.) DB