JUDGMENT : 1. The Court : This is an application under Section 9 of the Arbitration and Conciliation Act, 1996 as amended. The petitioner company has a business of manufacturing and export of Railway Track Components, Railway Track Fittings, Fish Plate etc. In terms of an electronic tender notice no.CETPSER2016006 inviting tenders for manufacture and supply of Electric Rail Clips Mk-III conforming of IRS specification No.T-31-1992, corrigendum No.3 of Jan 16 and as per RDSO’s drawing No.T-3701, Alt. 5 for 60 kg/52 kg rail and sleeper the petitioner company submitted his bid on 20th September, 2016 and his offer was accepted in terms and conditions stated in the tender document and subject to the IRS Conditions of Contract applicable and other terms and conditions of the tender document and security deposit to the tune of Rs.10,00,000/- as per clause 13 of the said letter was deposited and was accepted. The bank guarantee bond was furnished in terms of the tender document by the petitioner company undertaking to pay the amounts due and payable under this guarantee without any demur, merely on a demand from the Government stating that the amount claimed is due by way of loss or damage caused to or would be caused to or suffered by the Government by reason of breach by the said Contractor(s) of any of the terms or conditions contained in the said agreement or by reason of the Contractors failure to perform the said Agreement. The railway authority sought for consent by its letter dated 22.08.2017 annexure Q with regard to proposal for modification of price variation formula due to change of commodity in WPI and change of base year against P.O. No.CE/TP/SER/2016/006/a/10038 dated 22.02.2017 for supply of ERC MK-III to Drg. No.T-3701 with the contention that due to non availability of certain commodity in WPI with the change of base year from 2004-05 to 2011-12, the Railway has proposed the following revision in price variation formula in respect of ERC MK-III to Drg. No.T-3701 against the subject contract and requested the petitioner company to convey its consent for further deliberation of the railway in respect of methodology of payment against PV Bill and modification of PV formula for obtaining approval of Competent Authority. However, the proposed new formula will come into effect only after issue of modification advice. No.T-3701 against the subject contract and requested the petitioner company to convey its consent for further deliberation of the railway in respect of methodology of payment against PV Bill and modification of PV formula for obtaining approval of Competent Authority. However, the proposed new formula will come into effect only after issue of modification advice. The petitioner company by its letter dated 5.9.2017 communicated a letter to Deputy Chief Engineer/TP South Eastern Railway, Garden Reach, Kolkata – 700 043 concerning the applicability of proposed PVC formula and expressed that after checking and calculation it is found that this modified formula is not sufficient to cover up the prices of raw materials from opening of tender to offer the finished product for inspection and accordingly the petitioner company was unable to accept the proposal as made by the Railway Authority and for which the railway issued a letter of termination of contract in favour of the petitioning creditor but the formal cancellation order was not issued and yet to be issued in due course. Thereafter the Railway Authority communicated its letter dated 26.09.2017 to the Manager, Union Bank of India, Dharmatolla Branch, requesting to remit the guaranteed amount of Rs.10,00,000/- in favour of FA & CAO/S.E. Railway/GRC immediately treating this as urgent. This is how the petitioner has suffered threat in respect of his tender having been accepted for supply of Electric Railway Clips and for manufacturing of the same for supply to its consignee railway but all on a sudden such tender and the order has been cancelled by the Railway Authority. 2. The learned Counsel for the petitioner invites my attention to various tender documents with regard to instructions/remarks which provides as under: “No deviation, in [i] unloading condition as per clause no.8.2 of Spl. Condition of contract of tender document. [ii] Price Variation Clause as per clause no.9.0 of Spl. Condition of contract of tender document, [iii] Security Deposit as per clause no.13.0 of instruction to tenderer for e-tender and General Condition of tender and [iv] Payment as per clause 27.0 of instruction of tenderer for e-tender and General Condition of tender, will be permitted” and further submitted that such deviation cannot be made even in respect of price variation Clause as per the Clause no.9.0 of Special Condition of Contract of tendered document. 3. 3. My attention is further invited to price variation formula as Clause 9.0 to its note in particular which provides that any offer with different PVC formula or quoting different base month or linkage with different indices or fixed rate etc. as compared to the PVC formula provided with the tender will be summarily rejected. 4. The learned Counsel for the railway has invited my attention to a clause in the tender document which shows that the decision of the President of India in regard to material and raise escalation under this clause shall be final and not be subject matter of legal dispute or arbitration. The dispute is not at this stage of a decision to be taken by the President of India. Prima facie, the tender document reveals that the offer of the petitioner company against the tender was accepted as per the terms and conditions mentioned there under and subject to IRS condition of contract applicable in the case and other terms and condition as per tender document. Now learned counsel for the petitioner has adverted to the arbitration clause at 2900 of Indian Railways Standard Conditions of Contract (Latest) which provides as under : “2009. Arbitration. (a) In the event of any question, dispute or difference arising under these conditions or any special conditions of contract, or in connection with this contract (except as to any matters the decision of which is specially provided for by these or the special conditions) the same shall be referred to the sole arbitration of a Gazetted Railway Officer appointed to be the arbitrator, by the General Manager in the case of contracts entered into by the Zonal Railways and Production Units; by any Member of the Railway Board, in the case of contracts entered into by the Railway Board and by the Head of the Organisation in respect of contracts entered into by the other Organisations under the Ministry of Railways. The Gazetted Railway Officer to be appointed as arbitrator however will not be one of those who had an opportunity to deal with the matters to which the contract relates or who in the course of their duties as railway servant have expressed views on all or any of the matters under dispute or difference. The award of the arbitrator shall be final and binding on the parties to this contract.” 5. The award of the arbitrator shall be final and binding on the parties to this contract.” 5. This Court at this stage finds prima facie case and dispute having arisen between the parties to the contract. The petitioner has prayed for an order restraining the respondent and its servants, agents and/or assigns from receiving any payment under the Bank Guarantee No.30130 IGL 0000 217 dated January 17, 2017 and amendment to the Bank Guarantee dated January 25, 2017 from the Union Bank of India, Dharmatalla Branch and has accordingly, prayed for stay of operation of invocation of letter no. CE/TP/SER/2016/006 dated September 26, 2017 and has prayed for interim order of injunction in terms thereof against the respondent and its agents from taking any steps in respect of the purported termination letter dated September 15, 2017 and/or the invocation letter dated September 26, 2017. 6. To my mind, the Railway authority ought to have referred to arbitration instead of invocation of the bank guarantee as per the letter dated 26.09.2017 at annexure ‘U’. Accordingly, there shall be an interim order of injunction restraining the respondent and its agents from invoking the Bank Guarantee No. 30130 IGL 0000 217 dated January 17, 2017 and so also thereby an order of stay of operation of the notice cancelling the tender dated September 20, 2016 for a period of six weeks. 7. Affidavit in opposition shall be filed within four weeks after the reopening of this Court and two weeks thereafter for affidavit-in-reply, if any. 8. Let the matter be placed before the regular Court. 9. Urgent certified photocopy of this order is applied for, be given to the parties subject to compliance with all requisite formalities.