1. This is an application for appointment of an arbitrator. Sometime in
February 11, 2008, a notice inviting tender was published by the respondents
for setting up of Intake Works & Plant Make-Up Water & Drinking Water
System (package 20) at IISCO Steel Plant. The petitioner participated in the
tender process by forming a consortium with ION Exchange (India) Limited.
The consortium was selected as the highest bidder on November 28, 2008. A
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contract was executed by and between the parties. The scope of the work
involved construction of “Raw Water Reservoir 1 and 2”. According to the
petitioner, during the course of execution of the work, hard rocks had to be
removed from the top soil. The rock cutting was an essential feature for
effective execution and completion of the work. On May 12, 2011, the
consortium raised a demand on the respondent and the payment was released.
On June 20, 2011, a letter was written to the SAIL authorities by the petitioner
with a categorical explanation and break up of the calculation for the demand
on account of additional works. The claim of the petitioner was denied by the
respondents on January 30, 2015, after 4 years. The petitioner alleged that a
discriminatory treatment was meted out to the petitioner, inasmuch as, the
consortium was paid for similar work. The petitioner filed a writ petition before
this Court being W.P No. 17280(W) of 2017. The said writ petition was
dismissed by a learned Single Judge on July 14, 2017. The order was
challenged in M.A.T No. 1223 of 2017, which was renumbered as F.M.A 1400
of 2017. The appeal was also dismissed on June 27, 2023. The petitioner filed
a Special Leave Petition (SLP) before the Hon’ble Supreme Court of India, which
was dismissed. The petitioner laid emphasis on the observation of the Hon’ble
Supreme Court while dismissing the SLP that, the petitioner would be entitled
to take recourse to arbitration. On February 6, 2024, arbitration was invoked.
The date of the letter went down wrongly. The letter of invocation was received
by the respondent, which was replied to on February 16, 2024. According to
the respondent, the contract ended in 2017, which made the invocation barred
by limitation. The petitioner contended that, the claim was in respect of
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additional work done up to July 15, 2013. The claim was rejected on January
30, 2015. The cause of action arose on the date of rejection i.e. 30th January,
2015. Up to 2016, the petitioner made several requests for payment. Having no
other alternative, the writ petition was filed upon obtaining legal advice. The
petitioner sought for exclusion of the period between June, 2017 and January
2, 2024 i.e. the time between filing of the writ petition and dismissal of the SLP,
in computing the period of limitation in invoking arbitration. The petitioner’s
contention was that, the observation of the Hon’ble Supreme Court that the
petitioner had an alternative remedy by way of arbitration, was a liberty
granted to the petitioner to invoke the arbitration clause, upon dismissal of the
SLP. The petitioner claimed Rs. 13,89,37,291/- on account of additional work
along with interest at the rate of 18% per annum, from the date of demand till
the date of actual payment. Article 10 of the contract was relied upon and a
prayer was made for reference of the dispute to arbitration. The petitioner
contended that any further attempt at conciliation of the dispute, would be a
futile exercise. The rejection of the claim, the vehement opposition before the
writ court and in the appeal, clearly indicated that the respondent was
unwilling to settle the dispute. Thus, the requirement for conciliation under
clause 18 was not mandatory in the instant case. The petitioner’s next
contention was that, in view of the absence of an agreement between the
parties as to whether the arbitration would be governed by the rules of Indian
Council of Arbitration (ICA) or Scope Forum of Conciliation and Arbitration
(SFCA), the mechanism provided under the clause failed, and this court under
Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred
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to as the said Act) should refer the dispute. The jurisdiction clause was referred
to in support of the contention that the entire cause of action arose within West
Bengal. The parties had agreed to an exclusive jurisdiction clause which
provided that, the Courts of Asansol, West Bengal, would have jurisdiction.