Patna High Court - Orders
M/S Sudama Mal- Through Its Partner ... vs The Union Of India, on 20 September, 2019
Author: Amreshwar Pratap Sahi
Bench: Chief Justice
IN THE HIGH COURT OF JUDICATURE AT PATNA
REQUEST CASE No.48 of 2019
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M/s Sudama Mal- through its partner Anand Kumar Kashwani, Male, Aged
about 44 years, S/o Mr. Sudama Mal, R/o Amlatola, Katihar, P.O. and
District- Katihar - 854105 (Bihar).
... ... Petitioner/s
Versus
1. The Union of India, through General Manager (W), N.F. Railway, Maligaon,
Gauhati, Assam.
2. The D.R.M. (Works), DRM office, Katihar, P.O.- Katihar, District- Katihar.
3. The Senior DEN/C/N.F. Railway, DRM office, Katihar, District- Katihar.
4. The A.D.E.N-II/NJP and SGUJ, N.F. Railway, DRM office, Katihar,
District- Katihar.
5. The S.S.E. (Works)/SGUJ and SGUT, N.F. Railway, DRM office, Katihar,
District- Katihar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Ms. Anukriti Jaipuriyar, Advocate
For the Respondent/s : Dr. Anand Kumar, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
ORAL ORDER
5 20-09-2019Heard learned counsel for the applicant and Dr. Anand, learned counsel for the respondents.
Clause 63 for settlement of disputes is as follows:-
"63. Matters finally determined by the Railway- All disputes and differences of any kind whatsoever arising out of or in connection with the contract, whether during the progress of the work or after its completion and whether before or after the determination of the contract shall be referred by the contractor to the Railway and the Railway shall within 120 Patna High Court REQ. CASE No.48 of 2019(5) dt.20-09-2019 2/4 days after receipt of the Contractor's representation make and notify decisions on all matters referred to by the contractor in writing provided that matters for which provision has been made in clauses 8(a), 18, 22(5), 39, 43(2), 45(a), 55, 55-A(5), 57, 57A, 61(2) and 62(1) (b) of General Conditions or Contract or in any clause of the special conditions of the contract shall be deemed as 'excepted matters' and decisions of the Railway authority, thereon shall be final and binding on the contractor provided further that 'excepted matters' shall stand specifically excluded from the purview of the arbitration clause and not be referred to arbitration."
The respondent-railways has contested the appointment of Arbitrator on several grounds, including that the applicant has failed to set up a claim and even otherwise has not complied with the procedure as prescribed in Clause 63 by bringing any application before the General Manager. This stand has also been stated in the counter affidavit and again in the supplementary counter affidavit filed today.
In the rejoinder affidavit filed by the applicant, I find that it has been categorically asserted in paragraph 14 that the matter was represented vide letter dated 16.10.2018 which is Patna High Court REQ. CASE No.48 of 2019(5) dt.20-09-2019 3/4 addressed to the Divisional Railway Manager (Works). This document which was filed along with the rejoinder affidavit has not been denied in the supplementary counter affidavit filed today. Dr. Anand on behalf of the respondents states that in the counter affidavit it has been categorically stated that no such claim was set forth before the General Manager.
Having examined the aforesaid contentions, I find that there is an agreement in existence and there is a clear arbitration clause where the word used is that the claim shall be set forth before the Railway. There is nothing on record to indicate that the word 'General Manager' occurs therein. This argument is preposterous and without any basis and the counter affidavit filed on behalf of the respondents does not appear to be in conformity with the agreement clause 63 quoted hereinabove which has not been denied.
Therefore, in my clear opinion, all the procedure had been completed by the applicant before having arrived to this Court for appointment of an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996. The argument raised on behalf of the Railways is not only preposterous but deserves to be rejected outright.
Accordingly, in the exercise of the powers under Patna High Court REQ. CASE No.48 of 2019(5) dt.20-09-2019 4/4 Section 11(6) of the Arbitration and Conciliation Act, 1996, I hereby appoint Hon'ble Mr. Justice Sanjay Priya, a retired Judge of the Patna High Court, as the sole arbitrator to enter upon the dispute and render his award in terms of the provisions of the 1996 Act.
Let the information of this order along with papers be transmitted by the Registrar General to the sole Arbitrator for proceeding in the matters.
The application stands disposed of accordingly.
(Amreshwar Pratap Sahi, CJ) Sunil/-
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