Judgment :- 1. The Petitioner, an engineering Company engaged in the field of construction, has moved the present Petition under sub-sections (4) & (6) of Section 11 of the Arbitration and Conciliation Act, 1996, for the appointment of an independent Arbitrator to hear and resolve the disputes allegedly arising out of the works contract entered into between the Petitioner-Company and the Respondent-Railways. 2. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this Petition would run thus: It is stated that the Petitioner-Engineering Company is operating in the field of construction for more than five decades and successfully executed a number of contracts for the Respondent-Railways as well as other Government agencies. It is stated that the Respondent-Railways floated a tender on 25.10.2002 for the construction on the Erode-Coimbatore Section of 1x30.0 clear span PSC ox Girder ROB in lieu of existing level crossing No.128 at Kilometre 429/12-14 between Uthukuli and Tiruppur Stations. The tender forms were opened on 26.11.2002. After certain negotiations, which were held on 27.1.2003, the Petitioner-Company was awarded with the work on 20.2.2003. The contract was subject to the General Conditions of Contract of the Respondent-Railways coupled with certain special conditions imposed. Though the work was awarded as early as 20.2.2003, yet the agreement for the work was given to the Petitioner-Company only on 9.7.2003, after the expiry of nearly 5 months from the date of awarding of the contract. The total value of the contract was fixed at Rs.50,13,020/- which was split up into 4 items. It is stated that as per the Letter of Acceptance, the Petitioner has to furnish a Security Deposit of Rs.2,58,151/-. The Earnest Money Deposit of Rs.39,500/-, which was paid at the time of tender, was adjusted towards the Security Deposit, and the balance of Rs.2,18,651/- was given in the form of cash/D.D. It is stated that as per the terms of the contract the Respondent-Railways has to hand over the site on the date of contract itself viz., 20.2.2003. But, it did not do so. That apart, working drawing and alignment were not finalised, without which no physical work at the site is possible. The Respondent-Railways fixed the road alignment only on 11.7.2003 nearly after 5 months from the date of contract. But, it did not do so. That apart, working drawing and alignment were not finalised, without which no physical work at the site is possible. The Respondent-Railways fixed the road alignment only on 11.7.2003 nearly after 5 months from the date of contract. It is stated that though the Respondent is bound to hand over the construction site free from all encumbrances to the Petitioner, on the date of contract, the Respondent-Railways miserably failed to do so, and thereby it committed breach of the terms of contract. It is further stated that the Respondent-Railways furnished its working drawings for the foundation and structure only in the month of September, 2003, i.e., seven months after the award of the contract. Thereafter, the Petitioner-Company submitted its design as well as drawings for the staging arrangements on 24.9.2003, but the Respondent-Railways took no action to scrutinise and approve the same, and this was so even after the reminder letters dated 18.12.2003, 7.1.2004, 18.2.2004, 9.6.2004, 25.10.2004, 24.03.2005 & 28.07.2004 sent by the Petitioner-Company. Because of this the Petitioner-Company was not able to continue its work. In the meantime the cost of construction materials had gone up to a great extent leading the Petitioner-Company to lose heavily. It is stated that whenever the Petitioner-Company sends letter seeking extension of time, the Respondent-Railways granted such extension without any penalty, which will clearly show that the indifferent attitude on the part of the Respondent-Railways is the root-cause for the delay in the execution of works. Since, the Respondent-Railways showed no sign at all for approving the drawing, the Petitioner-Company was constrained to write to the Respondent-Railways demanding payment for the various losses suffered by it. The Respondent-Railways simply terminated the contract on 24.11.2005 after issuing two notices on 3.8.2005 and 16.9.2005. The Petitioner-Company sent letters to the Respondent-Railways seeking them to take steps for referring the matter for arbitration as per Clause 64(1) (i) of the Contract, but no action was taken on the part of the Respondent-Railways. According to the Petitioner-Company it was incumbent upon the Respondent within 30 days of the receipt of the letters dated 10.8.2005, 19.9.2005 & 20.4.2005 to appoint Arbitrators in terms of Clause 65 of the General Conditions of Contract. The Respondent-Railways having failed to do so, the Petitioner-Company has preferred the present Petition for the appointment of an independent Arbitrator to resolve the disputes between them. 3. The Respondent-Railways having failed to do so, the Petitioner-Company has preferred the present Petition for the appointment of an independent Arbitrator to resolve the disputes between them. 3. The Respondent-Railways in its counter stated that there is no subsisting cause of action to maintain the present Petition. It is stated that the agreement was entered into between the parties on 9.7.2003 and the present Petition for appointment of Arbitrator was moved in the year 2010. According to the Respondent-Railways the Petition is wholly barred by limitation. It is stated that the work was awarded to the Petitioner-Company under Letter of Acceptance No.W.496/PBW/41/CN (5793) dated 20.2.2003 and the agreement was signed by the Petitioner on 9.7.2003. The delay was only due to the delay in submission of balance amount of security deposit by the Petitioner-Company. At last, the Petitioner-Company has requested to deduct the balance Security Deposit from the running CC. According to the Respondent-Railways the remaining Security Deposit available against the Petitioner's contract is only Rs.1,98,471/-. With regard to the allegations of the Petitioner-Company that the Respondent-Railways delayed in finalising the working drawings and alignment, it is stated that the excavation and foundation work was started on 21.6.2003 as per the approved GAD No.CN/373/2000/1, and by letter dated 9.7.2003 the Respondent-Railways informed the Petitioner-Company that foundation and sub-structure drawings have been issued for the above work and site has already been handed over long back. On the basis of the said letter, the foundation work was started by the Petitioner-Company, but it did not progress at the required level. This is due to the engagement of unskilled labourers and inexperienced site Engineers by the Petitioner-Company. It is stated that by letters dated 31.7.2003 & 25.8.2003 the Respondent-Railways informed the Petitioner-Company that the progress of the work is not up to the required rate expected and asked them to increase men and machinery to make good of the deficiency in work. As regards the extension of contract, it is stated that the Petitioner-Company has requested to extent the currency of contract on account of lack of continuity of the work due to labour problem and increase in the cost of materials. On this account only, contract was extended under Clause 17(a) (ii) of the General Conditions of the Contract. Even after such extensions the Petitioner-Company has not taken any effective steps to complete the work. On this account only, contract was extended under Clause 17(a) (ii) of the General Conditions of the Contract. Even after such extensions the Petitioner-Company has not taken any effective steps to complete the work. Therefore, the Petitioner-Company was issued with seven days notice, and since, there was no progress, it was again issued with 48 hours notice on 16.9.2005. Since, even thereafter it failed to complete the work on the stipulated/mutually extended time viz., 30.9.2005, and failed to apply for further extension of time on valid and reasonable grounds, the Respondent-Railways terminated the contract by its letter dated 24.11.2005 with effect from 30.9.2005. Finally, it is stated that the Petitioner-Company is liable to pay the Respondent-Railways on account of risk and costs, and also for vitiation. 4. I have heard the learned Counsel appearing for the parties and perused the Affidavits and the documents filed in support of the Petition. The only issue which revolves is as to whether the claim made by the Petitioner is a live claim and whether the Petition under Section 11(6) of the Act is a belated one and is barred by limitation. Before going into this question, I would like to refer to the arbitration clause contained in the General Terms and Conditions of the Contract. Clauses 63 & 64 therein are worth to be quoted herein below: "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 the determination of the contract, shall be referred by the Contractor to the Railway and the Railway shall within 120 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, 18, 22(5), 39, 43(2), 45(a), 55, 55-A(5), 57, 57-A, 61(1), 61 (2) & 62(1) to (xiii) (b) of General Conditions of 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. 64 (1) (i) Demand for arbitration.— In the event of any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account or as to the withholding by the railway of any certificate to which the Contractor may claim to be entitled to, or if the railway fails to make a decision within 120 days, then and in any such case, but except in any of the 'Exception matters' referred to in clause 63 of these conditions, the contractor, after 120 days but within 180 days of his presenting his final claim on disputed matters, shall demand in writing that the dispute or difference be referred to arbitration. 64 (1) (ii) The demand for arbitration shall specify the matters which are in question or subject of the dispute or difference as also the amount of claim item wise. Only such dispute(s) or difference(s) in respect of which the demand has been made, together with counter claims or set off shall be referred to arbitration and other matters shall not be included in the reference. 64 (1) (ii) (a) The arbitration proceedings shall be assumed to have commenced from the day, a written and valid demand for arbitration is received by the railway. (b) The claimant shall submit his claim stating the facts supporting the claims along with all relevant documents and the relief or remedies sought against each claim within a period of 30 days from the date of appointment of the arbitral Tribunal. (c) The railway shall submit its defence statement and counter claim(s), if any, within a period of 60 days of receipt of copy of claims from Tribunal thereafter, unless otherwise extension has been granted by Tribunal. 64 (1) (iii) No new claim shall be added during proceedings by either parties however a party may amend or supplement the original claim or defence thereof during the course of arbitration proceedings subject to acceptance by Tribunal having due regard to the delay in making it. 64 (1) (iii) No new claim shall be added during proceedings by either parties however a party may amend or supplement the original claim or defence thereof during the course of arbitration proceedings subject to acceptance by Tribunal having due regard to the delay in making it. 64 (1) (iv) If the contractor(s) does/do not prefer his/their specific and final claims in writing, within a period of 90 days of receiving the intimation from the railways that the final bill is ready for payment, he/they will be deemed to have waived his/their claim(s) and the railways shall be discharged and released of all liabilities under the contract in respect of these claims. 64 (2) Obligation during the pendency of arbitration. — Work under the contract shall unless otherwise directed by the Engineer, continue during the arbitration proceedings, and no payment due or payable by the Railway shall be withheld on account ofsuch proceedings, provided, however, itshall be open for Arbitral Tribunal toconsider and decide whether or not such work should continue during arbitration proceedings. 64 (3) (a) (i) In case where the total value ofall claims in question added together does not exceed Rs.10,00,000/- (Rupees ten lakhs only), the Arbitral Tribunal consist ofa sole Arbitrator who shall be either the General Manager or Gazetted Officer of Railway not below the grade ofJA grade nominated by the General Manager in that behalf. The sole Arbitrator shall be appointed within 60 days from the day when a written and valid demand for arbitration is received by Railway. 64 (3) (a) (ii) In cases not covered by clause 64 (3) (a) (i), the Arbitral Tribunal shall consist of a panel of three Gazetted Railway Officers not below JA grade, as the Arbitrators. For this purpose, the Railway will send a panel of more than 3 names of Gazetted Railway Officers of one or more departments of the railway to the contractor who will be asked to suggest to General Manager upto 2 names out of the panel for appointment as contractor's nominee. The General Manager shall appoint at lease one out of them as the contractor's nominee and will also simultaneously appoint the balance number of Arbitrators either, from the panel or from Outside the panel, duly indicating the presiding Arbitrator from amongst the 3 Arbitrators so appointed. The General Manager shall appoint at lease one out of them as the contractor's nominee and will also simultaneously appoint the balance number of Arbitrators either, from the panel or from Outside the panel, duly indicating the presiding Arbitrator from amongst the 3 Arbitrators so appointed. While nominating the Arbitrators, it will be necessary to ensure that one of them is from the Accounts Department. An Officer of selection grade of the Accounts Department shall be considered of equal status to the Officers in SA Grade as of other departments of the railways for the purpose of appointment of Arbitrators. 64 (3) (a) (iii) If one or more of the Arbitrators appointed as above refuses to act as Arbitrator, withdraws from his office as Arbitrator, or vacates his/their office/offices or is/are unable or unwilling to perform his functions as Arbitrator for any reason whatsoever or dies or in the opinion of the General Manager fails to act without undue delay, the General Manager shall appoint new Arbitrator/Arbitrators to act in his/their place in the same manner in which the earlier Arbitrator/Arbitrators had been appointed. Such reconstituted Tribunal may, at his discretion, proceed with the reference from the stage at which it was left by the previous Arbitrator(s). 64 (3) (a) (iv) The Arbitral Tribunal shall have powers to call for such evidence by way of Affidavits or otherwise as the Arbitral Tribunal shall think proper, and it shall be the duty of the parties hereto to do or caused to be done all such things as may be necessary to enable the arbitral Tribunal to make the award without any delay. While appointing Arbitrator(s) under sub-clause (i), (ii) & (iii) above, due case shall be taken that he/they is/are not the one/those who had an opportunity to deal with the matters to which the contract elates or who in the course of his/their duties as railway servants expressed views on all or any of the matters under dispute or differences. The proceedings of the Arbitral Tribunal or the award made by such Tribunal will, however, not be invalid merely for the reason that one or more Arbitrator had in the course of his service opportunity to deal with the matters to which the contract relates or who in the course of his/their duties expressed views on all or any of the matters under dispute. 64 (3) (b) (i) The arbitral award shall state item wise, the sum and reasons upon which it is based. 64 (3) (b) (ii) A party may apply for corrections of any computational errors, any typographical or clerical errors or any other error of similar nature occurring in the award and interpretation of a specific point of award to Tribunal within 30 days of receipt of the award. 64 (3) (b) (iii) A party may apply to Tribunal within 30 days of receipt of award to make an additional award as to claims presented in the arbitral proceedings but omitted from the arbitral award. 64.4. In case of the Tribunal, comprising of 3 members any ruling or award shall be made by a majority of members of Tribunal. In the absence of each majority, the views of the presiding Arbitrator shall prevail. 64.5 Where the arbitral award is for the payment of money, no interest shall bepayable on whole or any part of the money for any period till the date on which the award is made. 64.6 The cost of arbitration shall be borne by the respective parties. The cost shall inter-alia include fee of the Arbitrator(s) as per the rates fixed by the railway administration from time to time. 64.7 Subject to the provisions of the aforesaid Arbitration and Conciliation Act, 1996 and the rules there under and any statutory modification thereof shall apply to the arbitration proceedings under this clause". 5. Clause 63 postulates that 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 the determination of the contract, shall be referred by the Contractor to the Railway and the Railway shall within 120 days after receipt of the contractor's representation, communicate its decision to the contractor. Clause 64(1) provides that in the event the Railway fails to make a decision within 120 days, the contractor shall present his final claim on disputed matter within 180 days thereafter and demand in writing that the disputed differences be referred to arbitration. 6. Taking into consideration the aforesaid clauses of the contract, I would like to state herein again the specific case of the Petitioner as alleged in the Petition. 6. Taking into consideration the aforesaid clauses of the contract, I would like to state herein again the specific case of the Petitioner as alleged in the Petition. According to the Petitioner, inspite of the submission of the design and drawing, followed by several reminders till 24.3.2005, the Respondent-Railway could not take any action, as a result of which, the Petitioner was not able to continue its work. The Petitioner thereafter was constrained to write to the Respondent-Railway demanding payment for the various losses suffered by it. The Respondent-Railway, after issuing two notices on 31.8.2005 & 16.9.2005, simply terminated the contract on 24.11.2005. The Petitioner's further case is that the Respondent was bound to refer the dispute to arbitration after the Petitioner served notice on 10.8.2005, 19.8.2005 & 20.4.2005. 7. On the other hand, the Respondent's specific case is that the allegation of the Petitioner-Company that the Respondent-Railway delayed in finalising the working drawings and alignment is unfounded. According to them, the excavation and foundation work was started on 21.6.2003 as per the approved GAD No.CN/373/2000/1, and by letter dated 9.7.2003 the Respondent-Railway informed the Petitioner-Company that foundation and sub-structure drawings have been issued for the above work and site has already been handed over long back. On the basis of the said letter, the foundation work was started by the Petitioner-Company, but it did not progress at the required pace, which was due to the deployment of unskilled labourers and inexperienced site Engineers by the Petitioner-Company. It is stated that by letters dated 31.7.2003 and 25.8.2003, the Respondent-Railway informed the Petitioner-Company that the progress of the work is not up to the required rate expected and asked them to increase men and machinery to make good of the deficiency in work. As regards the extension of contract, it is stated that the Petitioner-Company has requested to extend the currency of the contract on account of lack of continuity of the work due to labour problem and increase in the cost of materials. On this account only, the contract was extended as per Clause 17 (a) (ii) of the General Conditions of the Contract. Even after such extensions, the Petitioner-Company has not taken effective steps to complete the work. Therefore, the Petitioner-Company was issued with seven days' notice and since there was no progress, another notice was issued with 48 hours notice on 16.9.2005. Even after such extensions, the Petitioner-Company has not taken effective steps to complete the work. Therefore, the Petitioner-Company was issued with seven days' notice and since there was no progress, another notice was issued with 48 hours notice on 16.9.2005. Since even thereafter it failed to complete the work on the stipulated/ mutually extended time viz., 30.9.2005 and failed to apply for further extension of time on valid and reasonable grounds, the Respondent-Railway terminated the contract by its letter dated 24.11.2005 with effect from 30.9.2005. Quite contrary to the case of the Petitioner-Company, the Respondent-Railway allege that the Petitioner-Company is, in fact, liable to pay the Respondent-Railways on account of risk and costs. 8. It is the admitted case of the Petitioner that when the Respondent failed to appoint an Arbitrator in terms of Clause 65 of the General Conditions of the Contract in spite of the letters sent by the Petitioner-Company on 10.8.2005, 19.9.2005 & 20.4.2005, the Petitioner-Company moved, this Petition before this Court. For the sake of clarity paragraphs 14 and 15 of the Affidavit filed along with the original Petition are reproduced herein below: "14. The Petitioner states though the Petitioner has sent several requests that the disputes shall be settled through arbitration as per Clause 64 (1) (1) of the Contract, the Petitioner has not realised any fruitful result even after a period of 4 years. Under the said circumstances, the Petitioner having left with no other remedy has approached this Honourable Court. 15. The Petitioner states that it was incumbent on the Respondent within 30 days of the receipt of the letters dated 10.8.2005, 19.9.2005 & 20.4.2005 to appoint an Arbitrator in terms of Clause 65 of the General Conditions of the Contract. The Respondent having failed to do so, the Petitioner is now entitled to move this Honourable Court under Section 11(6) of the Arbitration Act seeking the appointment of an independent Arbitrator by this Honourable Court for hearing and deciding the disputes between the Petitioner and the Respondent. The disputes between the Respondent and the Petitioner presently being referred to arbitration are annexed herewith". 9. As noticed above the contract was terminated on 24.11.2005. The Petitioner-Company thereafter did not take any further steps in this regard. The disputes between the Respondent and the Petitioner presently being referred to arbitration are annexed herewith". 9. As noticed above the contract was terminated on 24.11.2005. The Petitioner-Company thereafter did not take any further steps in this regard. Thereafter, the Petitioner-Company filed a Petition under sub-sections (4) & (6) of Section 11 of the Arbitration and Conciliation Act, 1996 only on 20.10.2009 i.e., nearly four years from the date of termination of the contract by the Respondent. Again itwas re-presented on 8.2.2010 after complying with the defects pointed out by the Registry. On the contrary the Respondent made a counter demand for payment of damages for breach of the contract. It is well settled that the denial of claim itself will be a cause for arbitration. Nothing has been stated by the Petitioner-Company as towhy the Petition seeking appointment of Arbitrator was filed with such inordinate delay. In the instant case the Petitioner-Company could have raised the dispute and sought it tobe referred for arbitration in terms of the agreement at an earlier date. In the case of inordinate delay in invocation of arbitration clause with no justifiable reason the Court cannot come to the rescue of such parties seeking appointment of Arbitrator. The denial of arbitration from the side of the Respondent was some time in October/November, 2005. But the instant Petition for arbitration has been filed after a delay of nearly 4 years and that too without explaining the delay with justifiable reasons. Hence, in my considered opinion, such a belated Petition cannot be entertained. 10. For the reasons aforesaid, the instant Petition for appointment of an Arbitrator is dismissed on the ground of limitation as also on the ground that the claim is not a live claim. No costs.