- 1 - HC-KAR NC: 2026:KHC:4004 CMP No. 423 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI CIVIL MISC. PETITION NO. 423 OF 2023 BETWEEN: SURESH KUMAR. B. E. AGED ABOUT 53 YEARS, ENGINEER AND CLASS I PWD CONTRACTOR, KOTHARI NIVAS, CHIKKA BASTHI ROAD, HASSAN-573 201. …PETITIONER (BY SRI. RADHAKRISHNA., ADVOCATE) AND: 1. GENERAL MANAGER SOUTH WESTERN RAILWAY, HUBBLLI - 580 031. 2. DIVISIONAL RAILWAY MANAGER (WORKS) SOUTH WESTERN RAILWAY, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:4004 CMP No. 423 of 2023 MYSURU - 570 001. …RESPONDENTS (BY SMT. ANUPARNA BORDOLOI., ADVOCATE) THIS CIVIL MISC. PETITION IS FILED UNDER SEC.11(6) OF THE ARBITRATION AND CONCILIATION ACT, 1996, PRAYING TO APPOINT AN INDEPENDENT ARBITRATOR OUTSIDE RAILWAYS. THE AGREEMENT FOR WORKS No.1646/2019/ENG/0221 DATED 03.01.2020 EXECUTED BY 2ND AT ANNEXURE G, CLAUSE 63 PROVIDES FOR SETTLEMENT OF DISPUTES (PAGE No.62) AND 2ND RESPONDENT IN HIS AFFIDAVIT TO THE PRELIMINARY OBJECTION TO THE WP No.9086/2020 DATED 16.12.2020 ANNEXURE-P HAS SWORN THAT CLAUSE 63 & 64 OF IRGCC PROVIDES FOR ARBITRABILITY OF TERMINATION OF CONTRACT PRODUCED AT ANNEXURE R. FURTHER 2ND RESPONDENT IN HIS VERIFYING AFFIDAVIT TO THE I.A. DATED 16.12.2020 ANNEXURE – Q FOR VACATING THE INTERIM STAY GRANTED AGAINST IMPUGNED ORDER OF TERMINATION AT ANNEXURE- K, HAS SWORN TO THE EFFECT THAT PARA 63 & 64 OF IRGCC (PART II) 2014 AS AMENDED FROM TIME TO TIME PROVIDES FOR ARBITRABILITY OF TERMINATION OF CONTRACT. AND ETC. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ****** - 3 - HC-KAR NC: 2026:KHC:4004 CMP No. 423 of 2023 CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL ORDER 1. The petitioner filed this petition under Section 11(6) of the Arbitration and Conciliation Act to nominate the independent Arbitrator outside Railways in terms of the agreement dated 03.01.2020 executed as per Annexure G. 2. Brief facts, leading rise to the filing of this petition are as follows: 3. The respondents issued a notification inviting the tenders on 07.05.2018. Respondent No.2 issued a letter of acceptance on 27.08.2018. On 01.01.2019, the respondents issued a notice to the petitioner to make good the progress of work without dedicated site. After 15 months of expiry of the term of contract, the petitioner's letter dated 27.11.2019 was issued asking upon the railways to remove and clear the track from the site. The letter was issued to the - 4 - HC-KAR NC: 2026:KHC:4004 CMP No. 423 of 2023 petitioner rescinding the contract on 03.12.2019 by respondent No.2. The Agreement for works was entered into between the parties on 03.01.2020. Respondent No. 2 issued a notice of termination of contract on 28.05.2020. The petitioner replied on 08.06.2020 to the second respondent protesting the termination of a contract agreement as arbitrary, bad, illegal, unfair and unjust. 4. The respondents have issued a fresh tender notification on 30.06.2020. The petitioner addressed a letter to the Western Railways of Mysuru requesting for withdrawal of termination notice dated 28.05.2020 and to allow the petitioner to complete the project. The respondents did not consider the request made by the petitioner. The petitioner filed a writ petition in WP No.9086 of 2020 before this Court. This court vide order dated 22.12.2020 dismissed the writ petition. Thereafter, the writ appeal in W.A.No.155/2021 also came to be - 5 - HC-KAR NC: 2026:KHC:4004 CMP No. 423 of 2023 dismissed. Thereafter, the petitioner invoked the arbitration clause by issuing a notice dated 03.07.2023, after the service of notice, the respondents did not concur in appointment of the arbitrator notice. Hence, this petition. 5. Heard the arguments of the learned counsel for the petitioner and learned counsel for the respondents. 6. Learned counsel for the petitioner submits that the agreement came to be executed between the petitioner and respondents and there is a breach of terms and conditions of the agreement by the respondents. He submits that there is an arbitration clause in the agreement. The petitioner invoked an arbitration clause by issuing a notice. Hence, the dispute arose between the petitioner and respondents and the same has to be resolved through an arbitrator. Hence, on these grounds, prays to allow the petition. - 6 - HC-KAR NC: 2026:KHC:4004 CMP No. 423 of 2023 7. Per contra, learned counsel of the respondents submits that the claim made by the petitioner is barred by limitation, and the matter is not an arbitral dispute. Hence, on these grounds, she prays to dismiss the petition. 8. Perused the records and considered the submissions of the learned counsel for the parties. 9. The point, that would arise for consideration is as follows: “Whether the petitioner has made out a ground to refer the dispute between the parties to the petition in terms of clause 27 of the agreement dated 03.01.2020?” 10. There is an agreement executed between the parties. The dispute arose between the parties to the petition and the dispute has to be resolved through an arbitration in terms of clause 27 of the agreement vide Annexure-G, which reads as follows: - 7 - HC-KAR NC: 2026:KHC:4004 CMP No. 423 of 2023 27.0: Settlement of Disputes- Indian Railway Arbitration Rules: “Settlement of Disputes in connection with the contract shall be governed in terms of para 63 and 64 of IRSGCC (part-II) 2014 as amended from time to time through correction slips/modifications issued to IRSGCC by Railway Board posted in the official website Indianrailway.gov.in under Civil Engineering Directorate which shall be binding in the contractor”. 11. From the perusal of clause 27, it is evident that the said clause has a reference to clause 63 and 64 of IRSGCC. Admittedly, clause 63 and 64 deal with reconciliation of disputes and arbitration. The petitioner invoked an arbitration clause by issuing a notice dated 03.07.2023 to the respondents, and the respondents have replied to the arbitration notice rejecting petitioners demand for arbitration contending that there is no arbitral dispute arose between the petitioner and respondents and also - 8 - HC-KAR NC: 2026:KHC:4004 CMP No. 423 of 2023 contended that the claim made by the petitioner is barred by limitation. In view of the exposition of law laid down by the Hon'ble Apex Court in the case of Uttarkhand Purva Sainik Kalyan Nigam Limited vs. Northern Coalfields Limited1 , wherein the Hon’ble Apex Court held that insofar as point of limitation is concerned, the said aspect has to be raised before the arbitral tribunal. 12. It is a well settled that at the time of considering a petition under Section 11(6) of the Arbitration and Conciliation Act, the court is required to see whether there is an arbitration clause and whether the arbitral dispute arose between the parties? Hence, the scope of Section 11(6) of the Arbitration and Conciliation Act is very limited. Therefore, the petitioner has made out of ground to refer the dispute to the sole arbitrator. Accordingly, I answer the point in the affirmative. 1 (2020) 2 SCC 455 - 9 - HC-KAR NC: 2026:KHC:4004 CMP No. 423 of 2023 13. In view of the above discussion, I proceed to pass the following order: ORDER i. The Civil Miscellaneous Petition is allowed. ii. Hon’ble Smt. Justice K.S. Mudgal, Former Judge, High Court of Karnataka, is appointed as the arbitrator to resolve the dispute between the parties in terms of Arbitration and Conciliation Act and the Rules. iii. The office is directed to forward a copy of this order to the learned the Arbitrator and Arbitration and Conciliation Centre, Bengaluru. - 10 - HC-KAR NC: 2026:KHC:4004 CMP No. 423 of 2023 iv. All the contentions of the parties are kept open including the issue of limitation. v. In view of disposal of the petition, pending IA(s), do not survive for consideration and they are disposed of accordingly. Sd/- (ASHOK S.KINAGI) JUDGE SKS