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
(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
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.
