OCD-9 ORDER SHEET IN THE HIGH COURT AT CALCUTTA COMMERCIAL DIVISION ORIGINAL SIDE AP-COM/179/2026 MACKEIL AND COMPANY PRIVATE LIMITED VS THE PRINCIPAL CHIEF MATERIALS MANAGER CHITTARANJAN LOCOMOTIVE WORKS AND ANR BEFORE: The Hon’ble JUSTICE GAURANG KANTH Date : 15th July, 2026. Appearance: Mr. Rudraman Bhattacharyya, Sr. Adv. Mr. Suryaneel Das, Adv. Ms. Ruchira Manna, Adv. Mr. Chiranjit Pal, Adv. Mr. Subha Pathak, Adv. Ms. Dishari Chowdhury, Adv. …for the petitioner Mr. Mukesh Kr. Gupta, Adv. Mr. Shaunak Ghosh, Adv. …for the respondents The Court: The petitioner has preferred the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeking appointment of an Arbitrator to adjudicate the disputes between the parties. The petitioner is an MSME unit engaged in the business of manufacturing metal and chemical product for a considerable period of time. Pursuant to a tender floated by the respondent, the petitioner company was declared successful bidder, the rate quoted by the petitioner having been found favourable to the respondent no. 1. Accordingly, the respondent accepted the petitioner’s bid and issued a purchase order dated 16.11.2020 in favour of the petitioner for supply of “GEAR BOX CASE 2 (MACHINED) FOR WAP-5 AS PER DRG. NO. 1210-01.113-004, ALT.-2.” in 318.00 numbers. The total value of the purchase order was Rs.32,69,54,880/-. The General Conditions of Contract forming part of the said purchase order contains an arbitration clause. Owing to practical difficulties, the petitioner could supply only 60 numbers in 8 tranches out of the total requirement of 318 numbers. Thereafter, the respondent issued a Cancellation Advice being C.A. No. 000512 dated 25.03.2022 cancelling 232 numbers items of the purchase order and made a claim of Rs.2,38,53,312/-. Aggrieved thereby, the petitioner made several representations against the said action. Subsequently, the respondent issued a Reinstatement Advice being C.A. No. 001372 dated 12.07.2022 whereby the Purchase Order dated 16.11.2020 was reinstated in respect of 232 numbers of deliverables. Pursuant thereto, the petitioner supplied further 20 numbers in 5 different tranches. Thereafter, vide letter dated 02.05.2023, the petitioner expressed its inability to supply the remaining deliverables. The respondent however issued a Modification Advice being M.A. No. 000522 dated 04.03.2024 permitting the petitioner to supply 28 deliverables within a period of two years. Subsequently, the respondent issued a Cancellation Advice being C.A. No. 001775 dated 11.07.2024 in respect of 232 numbers of proposed demurrage charge amounting to Rs.2,44,70,208/-. Aggrieved thereby, the petitioner approached the Commercial Court at Asansol by filing an application under Section 9 of the Arbitration and Conciliation Act, 1996 seeking interim measures. By order dated 12.03.2025, the learned Commercial Court restrained the respondent from recovering the said amount from other bills of the petitioner pending with Indian Railways. The said interim order continues to remain in force. Thereafter, the petitioner 3 invoked the arbitration clause contained in Clause 2900 of the Indian Railways Standard General Conditions of Contract vide notice dated 01.04.2025. Despite receipt of the said notice, the respondent failed to take any steps for constitution of the arbitral tribunal. Learned Senior Counsel for the petitioner, Mr. Rudraman Bhattacharyya, submits that disputes have arisen between the parties in relation to the wrongful cancellation of the purchase order and the imposition of demurrage charges which squarely falls within the ambit of the arbitration clause. Learned Counsel for the respondent states that the arbitration clause itself has provided mechanism for the appointment of the Arbitrator and that the present petition is thus not maintainable. Learned Counsel for the respondent does not dispute existence of the arbitration clause contained in the Indian Railways Standard General Conditions of Contract. It is no longer in dispute that the respondent cannot unilaterally appoint an Arbitrator unless and until there is an expressed waiver by the petitioner under Section 12(5) of the Arbitration and Conciliation Act, 1996. Since the arbitration clause is not in contravention of the settled position of law in terms of the judgment of the Hon’ble Supreme Court in Central Organisation for Railway Electrification v. ECI-SPIC-CMO-MCML (JV), reported as (2025) 4 SCC 641, the present petition is maintainable and this Court deems it fit to appoint an Arbitrator in terms of the arbitration clause as contained in the General Conditions of Contract. This Court has heard the submissions advanced by the learned Counsel for the parties and has perused the materials place don record. 4 The existence of an arbitration agreement between the parties is evident from the General Conditions of Contract forming part of the purchase order. The disputes raised are arbitrable in nature. 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.” Accordingly, in proceedings under Section 11 of the Arbitration and Conciliation Act, 1996, the scope of the examination of this Court is confined to the examining the existence of a valid arbitration agreement between the parties containing an arbitration clause. In the facts of the present case, this Court is satisfied that the requirements under Section 11(6) of the Act stand fulfilled and that the disputes between the parties are fit to be referred to arbitration. In view of the same, this Court appoints Mr. Sayan Ray Chowdhury, Advocate, Bar Library Club (Mobile No. 9830942394) as the learned sole Arbitrator to adjudicate the disputes between the parties. The appointment of the learned sole Arbitrator shall be subject to compliance with Section 12(5) of the Arbitration and Conciliation Act, 1996. The learned sole Arbitrator shall be entitled to fix the remuneration in accordance with the Fourth Schedule of the Act. 5 A copy of this order shall be communicated by the petitioner to the learned sole Arbitrator for necessary action. 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 directions, the present petition stands disposed of. (GAURANG KANTH, J.) R.Bhar