ORDER : 1. This application under Sections 10 and 11 of the Arbitration and Conciliation Act, 1996 has been preferred by proprietorship firm M/s. Anandilal Lalpuria through its proprietor Anandilal Lalpuria, inter-alia, with the prayer that an independent arbitrator may be appointed to resolve its dispute with the non-applicant. Applicant firm is engaged in construction, supply and other allied work under contractor ship business. Applicant is approved contractor by railway administration. The non-applicant invited tenders for work of “JP-Up-gradation of existing Rly. Hospital Jaipur to the level of Central Hospital by construction of new buildings for IPD with parking facility and modification in existing hospital building”. The NIT for this purpose was published and tenders were opened on 23.07.2010. Offer of the applicant, being lowest, was accepted by the non-applicant vide letter dated 21.09.2010. Estimated costs of the work was Rs.10,17,69,187.14 and time period fixed for its completion was 11 months. Scheduled date of commencement and completion of the work was 21.09.2010 and 22.08.2011, respectively. An agreement was also executed and signed on 27.12.2010. Applicant deposited EMD of Rs.6,85,000/- with non-applicant by FDR dated 04.10.2010, on Oriental Bank of Commerce, which was duly pledged in their favour. Applicant was directed by non-applicant to submit a bank guarantee for due performance of work at the rate of 5% of the contract value. Applicant accordingly submitted bank guarantee for a sum of Rs.50,88,460/- issued by the Oriental Bank of Commerce, M.I. Road, Jaipur, which was valid up to 03.01.2012. 2. According to the applicant, it commenced the work in time and executed the work of Rs.2,44,15,618.00 within scheduled period but payment of Rs.1,99,29,765/- was released as gross amount of the work recorded in the third running bill and payment of Rs.44,85,853/- was not released on the ground that no funds were available with the non-applicant to release the payment. This has resulted in delay in execution of the work. Apart from shortage of funds, which was responsible for delay in completion of work, there were other reasons for that. The non-applicant did not provide drawings and designs timely and failed to give layout plan. The non-applicant delayed in recording of the measurement and also did not make payments of running bills. The applicant, by letter dated 28.11.2010, requested the non-applicant to provide drawing and designs. The non-applicant did not provide drawings and designs timely and failed to give layout plan. The non-applicant delayed in recording of the measurement and also did not make payments of running bills. The applicant, by letter dated 28.11.2010, requested the non-applicant to provide drawing and designs. The applicant then, vide letter dated 11.10.2010 requested to remove hurdles like shifting of the electric cable lines and water pipe lines. Then by letter dated 03.12.2012, the applicant informed the non-applicant that the work was stopped because of non-availability of fund and payment and it wanted to remove the steel from the site, which may be permitted. On the letter of the applicant, ADEN (HQ-1), Jaipur, issued letter to the SSE (W), Spl-JP on 04.02.2012 seeking instructions whether work shall be continued or nor on account of non-availability of the funds. Instruction was also sought for the unmeasured steel lying at site to be allowed to remove by the applicant. DRM (WA) JP issued letter dated 16.03.2012 to the applicant, by which it was admitted that work was held up for want of funds and assured that the funds have been allotted and direction was issued to the applicant to apply for extension of DOC. Since the work was abnormally delayed and payment of applicant was also withheld by the non-applicants, therefore, the applicant, by letter dated 20.03.2012, requested non- applicant to close the work. The applicant then wrote letter dated 02.04.2012 to non-applicant stating that if work is required to be completed, payment for excess quantity steel used beyond the 563 MTs should be paid extra, and actual market rate should be paid and time be also extended up to 31.03.2013. 3. Shri Devidutt Sharma, learned counsel for the petitioner, argued that the non-applicant, without paying any heed to the aforesaid request, issued a notice of seven days on 16.04.2012 for completion of work. The applicant again sent a letter dated 23.04.2012 to settle the dispute but the non-applicant did not consider these letters. When the non-applicant failed to settle the dispute amicably, applicant, vide letter dated 07.08.2012, requested the General Manager, NWR, Jaipur, for appointment of arbitrator, and that the amount involved in the disputes were also mentioned therein. The notice was not replied by the General Manager. The DRM (W) JP terminated the agreement by letter dated 14.12.2012 with the admission of delay in making payment. The notice was not replied by the General Manager. The DRM (W) JP terminated the agreement by letter dated 14.12.2012 with the admission of delay in making payment. The non-applicant prepared final bill and directed to sign the final bill for processing the same. The applicant signed the bill under protest and after signing the final bill. The non-applicant vide letter dated 11.09.2013, directed to submit reason for filing the bill under protest. The applicant replied by letter dated 03.10.2013 mentioning the reasons why it signed the bill under protest. The applicant then issued notice dated 10.11.2013 to the General Manager North Western Railway, Jaipur, for referring the dispute to the arbitration. Despite that, no action has been taken by the non-applicant to refer the dispute. 4. Mr. Devidutt Sharma, learned counsel for applicant, further argued that although under the agreement, the General Manager, North Western Railway, Jaipur, is competent to decide the disputes himself or he can appoint arbitrator as per Clause 64 of the General Conditions of Contract but no arbitrator was appointed with the consent of the parties despite repeated requests by the applicant. It is contended that Clause 64 of the General Conditions of Contract specifies that a Gazetted Railway Officer not below the rank of JA Grade can be appointed as arbitrator for which purpose railway will send more than three names of one or more department of the railway and the General Manager shall appoint at least one arbitrator. These provisions now cannot be acted upon for two reasons, firstly because despite notice by the applicant, the non-applicant failed to appoint arbitrator, therefore, by virtue of Section 11(6)(b) of the Act of 1996, forfeited the right to appoint arbitrator. Secondly, in view of newly adduced Clause 1 and 5 of the 5th Schedule with reference to Section 12(5) of the Act of 1996, which were newly inserted by Arbitration and Conciliation (Amendment) Act, 2015, the officers of the railways not being independent and impartial and being working under the control and supervision of the General Manager, now have been disqualified to act as arbitrator. 5. 5. Shri Devidutt Sharma, learned counsel, argued that question raised now before this Court that the demand of price variation is an “excepted matter” under Clause 64 of the General Conditions of Contract and therefore, it cannot be referred to arbitration, also cannot be accepted in view of the recent judgment of the Supreme Court in Arasmeta Captive Power Company Pvt. Ltd. and Another Vs. Lafarge India Pvt. Ltd. - (2013) 15 SCC, 414, wherein it has been held that the Chief Justice or his designate would not be justified to decide the claim whether a claim made falls within the arbitration clause and decision as to such issue ought to be left to the arbitrator. All these three issues have been dealt with by the judgment of this court dated 03.06.2016 in S.B. Arbitration Application No.95/2013 - M/s. Dwarka Traders Private Limited Vs. Union of India. 6. Learned counsel for applicant argued that mere fact that non-applicant delayed in making last payment to applicant, as mentioned, that such payment was being made in full and final settlement or its clearance, would not make any difference because the applicant signed the said bill under protest. In fact the non- applicant, after signing of the receipt by the applicant, vide their letter dated 11.09.2013 required the applicant to explain why it signed 'no claim certificate' and final variation statement and final bill etc., under protest, and submit reasons for the protest so that further action may be taken to short out the issues and case may be finalized. The applicant by detailed reply thereto dated 10.11.2013 addressed to the General Manager, North Western Railway, Headquarters office, Jaipur, mentioned such reasons and requested the non-applicant to refer the dispute to arbitration within thirty days, failing which it shall be constrained to move the competent court for appointment of arbitral tribunal. Learned counsel has argued that signing of the document by the applicant does not give finality to such proof and that it is always open to the applicant to request the reference of the dispute to the arbitrator. In support of his argument, learned counsel has relied on judgments of the Supreme Court in Raj Brothers Vs. Union of India –2009 (1) R.A.J. 146 (SC), M/s. Ambica Construction Vs. Union of India – 2007 (1) R.A.J. 141 (SC), Ambica Construction Vs. In support of his argument, learned counsel has relied on judgments of the Supreme Court in Raj Brothers Vs. Union of India –2009 (1) R.A.J. 146 (SC), M/s. Ambica Construction Vs. Union of India – 2007 (1) R.A.J. 141 (SC), Ambica Construction Vs. Union of India – 2006(4) Arb.LR 288 (SC) and Chairman & M.D., N.T.P.C. Ltd. Vs. Reshmi Constructions, Builders & Constructors – 2004 (1) R.A.J. 232 (SC). 7. Mr. P.C. Sharma, learned counsel for non- applicant, opposed the application and argued that each and every condition of General Conditions of Contract and tender document were accepted by the applicant and under Clauses 63 and 64 of the General Conditions of Contract, a procedure has been mentioned for appointment of arbitrator and every contract has to follow these clauses in case any dispute arises between the parties. According to said Clause, in the present case, the General Manager is not the named arbitrator as stated by the applicant but he nominates the arbitrator if the demand of arbitration is made as per the terms of the contract. In the present case, the applicant did not make application as per Clauses 63 and 64 of the General Conditions of Contract and did not follow the terms mentioned therein. Besides, the disputes raised by the applicant are exclusively covered by the “excepted matters”. Under Clause 63, demand of price variations shall be in terms of “excepted matter”, therefore, it cannot be entertained. Under arbitration clause, the process of appointment of arbitrator and also the designations of the officers eligible for appointment as an Arbitrator have been mentioned. No officer below the rank of Junior Administrative Grade can be appointed as arbitrator. Mere fact that it mentioned 'under protest', all the documents would not make any difference to the finality of the payment. It is therefore prayed that application be dismissed. 8. I have given my anxious consideration to rival submissions, perused the material on record and also carefully studied the cited precedents. 9. Mere fact that it mentioned 'under protest', all the documents would not make any difference to the finality of the payment. It is therefore prayed that application be dismissed. 8. I have given my anxious consideration to rival submissions, perused the material on record and also carefully studied the cited precedents. 9. Besides the fact that most of the issues raised in this application with regard to appointment of independent arbitrator from amongst those named in Clause 64 of the General Conditions of Contract and “excepted matter”, are covered by the detailed judgment of this court in M/s. Dwarka Traders Private Limited, supra, objection of the non-applicant with regard to full and final payment having been made by them, can also not be a reason not to refer the dispute to the arbitrator in view of judgments relied on behalf of the applicant. 10. Question whether non-applicants Railways would be justified in refusing to refer the dispute to Arbitrator on the premise that such dispute falls in the category of “excepted matter”, stands covered by law laid down by the Supreme Court in number of judgments referred to above, the latest one being in Arasmeta Captive Power Company, supra. The Supreme Court, while dealing with application under Section 11(6) of the Act of 1996, on survey of entire previous case law on the subject, has authoritatively held that the Chief Justice or his Designate would not be justified in deciding whether a claim falls under “excepted matter” or not, under arbitration agreement, and such decision ought to be left to arbitrator. 11. The Apex Court in North Eastern Railway and Others Vs. Tripple Engineering Works – 2014 (3) Arb.LR 327 (SC), while dealing with the same Arbitration Clause 64 (3) of the General Conditions of Contract, relied upon by the non-applicant in the present case, held as under:- “6. The "classical notion" that the High Court while exercising its power Under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter for short 'the Act') must appoint the arbitrator as per the contract between the parties saw a significant erosion in Ace Pipeline Contracts (P) Ltd. v. Bharat Petroleum Corporation Ltd. wherein this Court had taken the view that though the contract between the parties must be adhered to, deviations therefrom in exceptional circumstances would be permissible. A more significant development had come in a decision that followed soon thereafter in Union of India v. Bharat Battery Manufacturing Co. (P) Ltd. wherein following a three-Judge Bench decision in Punj Lloyd Ltd. v. Petronet MHB Ltd. it was held that once an aggrieved party files an application Under Section 11(6) of the Act to the High Court, the opposite party would lose its right of appointment of the arbitrator(s) as per the terms of the contract. The implication that the Court would be free to deviate from the terms of the contract is obvious. 7. The apparent dichotomy in ACE Pipeline and Bharat Battery Mfg. Co. (P) Ltd. was reconciled by a three-Judge Bench of this Court in Northern Railway Admn. v. Patel Engg. Co. Ltd. wherein the jurisdiction of the High Court Under Section 11(6) of the Act was sought to be emphasized by taking into account the expression "to take the necessary measure" appearing in sub-section (6) of Section 11 and by further laying down that the said expression has to be read alongwith the requirement of sub-section (8) of Section 11 of the Act. The position was further clarified in Indian Oil Corporation Limited and Ors. V .Raja Transport Pvt. Ltd. Para 48 of the Report wherein the scope of Section 11 of the Act was summarised may be quoted by reproducing sub-paras (vi) and (vii) herein below. “48. (vi) The Chief Justice or his designate while exercising power under sub-section (6) of Section 11 shall endeavour to give effect to the appointment procedure prescribed in the arbitration clause (vii) If circumstances exist, giving rise to justifiable doubts as to the independence and impartiality of the person nominated, or if other circumstances warrant appointment of an independent arbitrator by ignoring the procedure prescribed, the Chief Justice or his designate may, for reasons to be recorded ignore the designated arbitrator and appoint someone else.” 8. The above discussion will not be complete without reference to the view of this Court expressed in Union of India v. Singh Builders Syndicate wherein the appointment of a retired Judge contrary to the agreement requiring appointment of specified officers was held to be valid on the ground that the arbitration proceedings had not been concluded for over a decade, making a mockery of the process. In fact, in para 25 of the Report in Singh Builders Syndicate this Court had suggested that the Government, statutory authorities and government companies should consider phasing out arbitration clauses providing for appointment of serving officers and encourage professionalism in arbitration. 9. A pronouncement of late in Deep Trading Co. v. Indian Oil Corporation and Ors. followed the legal position laid down in Punj Lloyd Ltd. which in turn had followed a two- Judge Bench decision in Datar Switchgears Ltd. vs. Tata Finance Ltd. The theory of forfeiture of the rights of a party under the agreement to appoint its arbitrator once the proceedings under Section 11(6) of the Act had commenced came to be even more formally embedded in Deep Trading Co. subject, of course, to the provisions of Section 11(8), which provision in any event, had been held in Northern Railway Admn. not to be mandatory, but only embodying a requirement of keeping the same in view at the time of exercise of jurisdiction Under Section 11(6) of the Act. 10. In the present case Clauses 64(3)(a)(ii) and (iii) of the general conditions of contract do not prescribe any specific qualification of the arbitrators that are to be appointed under the agreement except that they should be Railway Officers. As already noticed, even if the arbitration agreement was to specifically provide for any particular qualification(s) of an arbitrator the same would not denude the power of the Court acting Under Section 11(6), in an appropriate case to depart therefrom.......” 12. The view expressed in the above judgment has been again followed by the Supreme Court in Union of India Vs. U.P. State Bridge Corporation Ltd, 2014 (10) Scale 561 , where under appointment of arbitrator by the High Court on its own on the prescription made in the arbitration clause was approved. In para 21 of the report, the Supreme Court held as under:- “21. The appointment of arbitrator by the Court, of its own choice, departing from the arbitration clause, is therefore not unknown and has become an acceptable proposition of law which can be termed as a legal principle which has come to be established by a series of judgments of this Court. Reasons for debating such a course of action are not far to seek and already taken note of above.” 13. The Supreme Court in Datar Switch Gears Ltd. Vs. Reasons for debating such a course of action are not far to seek and already taken note of above.” 13. The Supreme Court in Datar Switch Gears Ltd. Vs. TATA Finance Limited, supra, held that in cases arising under Section 11 (6), if the opposite party has not made an appointment within 30 days of demand, the right to make appointment is not forfeited but continues, but an appointment has to be made before the former files application under Section 11 seeking appointment of an arbitrator. Only then the right of the opposite party ceases. Their Lordships therein therefore disagreed with the observation in earlier judgments that if the appointment is not made within 30 days of demand, the right to appoint an arbitrator under Section 11(6), is forfeited. The said law was again reiterated by the Supreme Court in Punj Lloyd Limited Vs. Petronet MHB Ltd – (2006) 2 SCC 638 . 14. As regards the contention of non-applicant that payment was made to the applicant in full and final settlement on clearance, suffice it to say that applicant had accepted such payment under protest and that the non-applicant rather called upon the applicant to submit reason/objection for its protest so that further action may be taken to sort out the issues and case may be finalized. That would mean that the non- applicants themselves were open to consider any objection and the only process by which they can do it making reference to arbitration because immediately after receiving the letter dated 11.09.2013, the applicant sent to the non-applicant letter of request to this effect. The Supreme Court in Chairman & M.D., NJ.T.P.C. Ltd. Vs. Reshmi Constructions, Builders & Contractors, supra, was dealing with a case where submission of final bill by the respondent contractor was not accepted by the appellant NTPC Limited. Final bill was prepared by the appellant themselves and forwarded along-with the format “No Demand Certificate”. The respondents though signed the “No Demand Certificate” but on the same day sent a letter to the appellant, informing about signature under coercion and protest, without prejudice to his right. It was held that even when rights and obligations of the parties are worked out, the contract does not come to an end inter alia for the purpose of determination of the disputes arising thereunder, and, thus, the arbitration agreement can be invoked. It was held that even when rights and obligations of the parties are worked out, the contract does not come to an end inter alia for the purpose of determination of the disputes arising thereunder, and, thus, the arbitration agreement can be invoked. Although it may not be strictly in place but we cannot shut our eyes to the ground reality that in the cases where a contractor has made huge investment, he cannot afford not to take from the employer the amount under the bills, for various reasons which may include discharge of his liability towards the banks, financial institutions and other persons. In such a situation, the public sector undertakings would have an upper hand. They would not ordinarily release the money unless a 'No Demand Certificate' has been signed. Each case, therefore, is required to be considered on its own merits, held the Supreme Court. 15. In Ambica Construction Vs. Union of India, supra, the arbitrator held that 'no claim certificate' was signed by the contractor under duress and coercion and passed the award in his favour. The High Court set aside the award. When the matter was taken to the Supreme Court, it was held that the contractor was having genuine claim, which was considered in great detail by the arbitrator, and that notwithstanding submission of a no claim certificate by appellant, he was entitled to claim a reference. The appeal was allowed. 16. In Raj Brothers, supra, also final bill was signed by the contractor 'under protest'. The contractor subsequently withdrew the protest under duress, but later invoked the arbitration clause. It was held that since withdrawal of protest was made under duress, triable issue arises and therefore the matter was rightly referred to arbitrator. In a rather recent judgment in Gayatri Project Ltd. Vs. Sai Krishna Construction, (2014) 13 SCC 638 , the Supreme Court held that issuance of full and final discharge/settlement voucher/no-dues certificate, does not preclude arbitration when the said full and final settlement itself is disputed. Question whether letter dated 6-6-2003 would constitute a "full and final settlement" would have to be determined on proper appreciation of the evidence led by the parties. This issue by itself was subject to arbitration. Hence reference to arbitrator was maintainable, held the Supreme Court. 17. In view of the above discussion, present application deserves to succeed and is allowed. Hon'ble Mr. This issue by itself was subject to arbitration. Hence reference to arbitrator was maintainable, held the Supreme Court. 17. In view of the above discussion, present application deserves to succeed and is allowed. Hon'ble Mr. Justice V.S. Dave (Retd.), Flat No. 102, C-22, Block-A, Trimurti Dave Apartment, Sawai Jai Singh Highway, Bani Park, Jaipur (Phone No.0141-2202643), is hereby appointed as an independent sole arbitrator to resolve the disputes between the parties. The cost of arbitration proceedings and the arbitration fees shall be as per Fourth Schedule inserted in the Act of 1996 vide Arbitration and Conciliation (Amendment) Act, 2015. 18. A copy of this order be sent to Hon'ble Mr. Justice V.S. Dave (Retd.), Flat No. 102, C-22, Block-A, Trimurti Dave Apartment, Sawai Jai Singh Highway, Bani Park, Jaipur (Phone No.0141-2202643).