9911796707
TMI Blog2016 (7) TMI 1056X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Datar Switchgears (supra). In that case this Court had extracted the relevant terms of agreement in paragraph 9 which showed that there was no stipulation of any time limit like that of 60 days in the present case. The terms of the Agreement bind the parties unless they have chosen to repudiate the same. Relevant terms, if provided, will be material for deciding when the right of a party to appoint the arbitrator will suffer forfeiture and when the other party would be entitled to give notice and on failure, move application under Section 11(6) of the Act. Such terms deserve respect of the parties and attention of the Court. In view of aforesaid discussions we find no option but to set aside the impugned order under appeal. We o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f clause 64(3)(a)(ii) of the agreement. 2. According to Ms. Kiran Suri, learned senior counsel for the appellants the impugned order suffers from apparent error of fact on account of misreading or non-reading of the relevant clause of the Agreement, i.e., clause 64(3)(a)(ii) which requires the contractor/respondent to make a written demand for arbitration and permits 60 days time to the Railways from the date of receipt of the demand, to send a panel of more than three names of eligible gazetted railway officers so that the contractor may suggest to General Manager at least two names out of that panel for appointment of the contractor s nominee. Such suggestion from the contractor should come within 30 days from the dispatch of the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not on mere expiry of the notice period of 30 days. It is appellants stand that in view of stipulations in the relevant clause providing for arbitration, the respondent-contractor admittedly sent a notice demanding arbitration on 12.06.2013 which was served on the appellants on 14.06.2013 and hence it had to wait for 60 days for receipt of a panel of more than three names. Thereafter the contractor had to suggest two names for appointment of his nominee arbitrator within 30 days. The cause of action for sending a notice of 30 days or any reasonable period, in view of clear terms in the Arbitration Agreement which has not been repudiated, can arise only after 60 days. Hence according to learned senior counsel for the appellants, the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice for appointment of arbitrators dated 12.06.2013 was served on the railways on 14.06.2013, the contractor had to respect the terms of the agreement which was unrepudiated and to wait for a period of at least 60 days before Section 11 application could have been filed. Instead of waiting for 60 days the contractor/respondent preferred such application prematurely on 23.07.2013. The Railways sent a panel of 4 names to the respondent on 30.07.2013, well within 60 days limit. 6. In the aforesaid facts and circumstances it did not lie in the mouth of the respondent contractor that the appellants had committed a default and had forfeited their right to appoint arbitrators as per terms of the agreement. The learned Judge failed to read the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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