JUDGMENT : 1. An application under Section 11 of the Arbitration and Conciliation Act, 1996 (for short “the Act of 1996”) has been filed to seek appointment of an independent Arbitrator. 2. The appointment of independent Arbitrator is sought in reference to the dispute arose on execution of work pursuant to an arbitration agreement. A reference of Clause 63 and 64 of the General Conditions of Contract has been given for appointment of Arbitrator. 3. Learned counsel for applicant submits that despite a clause for arbitration and notice for appointment of Arbitrator to resolve the dispute, the non-applicants failed to nominate an independent Arbitrator thus present application has been filed. A reference of letter dated 18th March, 2017 has been given. A dispute was raised with a request to refer it to the Arbitrator. The non-applicants sent a letter on 22nd February, 2018, disclosing names of four ex-employees. It is with a direction to select two out of it to be appointed as Arbitrators. 4. The letter dated 22nd February, 2018 to nominate Arbitrators was sent after expiry of period of 30 days and otherwise, it is hit by Section 12(5) of the Arbitration and Conciliation (Amendment) Act, 2015 (in short “the Amendment Act of 2015”). The named persons were the employees of the Railways. The Seventh Schedule appended to the Amendment Act of 2015 makes ex-employees ineligible for being appointed as Arbitrators. It is thus not only that names of the Arbitrators were sent subsequent to the period of 30 days of the notice but they are otherwise hit by Section 12(5) of the Amendment Act of 2015. 5. To support the arguments, a reference of the judgment of this court in the case of Parmar Construction Company Vs. The Union of India, reported in 2017 (4) WLC (Raj.) 780 has been given apart from judgment of the Apex Court in the case of TRF Limited Vs. Energo Engineering Projects Limited, reported in (2017) 8 SCC 377 . A prayer is, accordingly, made to allow the application under Section 11 of the Act of 1996 and nominate an independent Arbitrator to resolve the dispute between the parties. 6. Learned counsel for non-applicants has opposed the application. A reference of Clause 63 and 64 of the General Conditions of Contract has been given to show procedure for appointment of an Arbitrator. 7. 6. Learned counsel for non-applicants has opposed the application. A reference of Clause 63 and 64 of the General Conditions of Contract has been given to show procedure for appointment of an Arbitrator. 7. It is submitted that a claim was made by the applicant vide letter dated 18th March, 2017 with a request to accept it and release the amount so withheld by the Railways. A prayer for giving reasonable opportunity of hearing for settlement of the dispute was also made. 8. As per Clause 63 of the General Conditions of Contract, a claim needs to be decided within a period of 120 days on its receipt. Clause 64(1)(i) of the General Conditions of Contract provides that if a dispute is not settled or decision on it is not given within 120 days, then before expiry of the period of 180 days, the parties shall demand in writing for reference of the dispute or difference for arbitration. 9. It is submitted that no letter or notice was sent by the applicant for appointment of Arbitrator after expiry of the period of 120 days. In view of the above, the applicant failed to apply the procedure given for appointment of Arbitrator. The Railways still advised to choose any of the ex-employees as an Arbitrator vide their letter dated 22nd February, 2018. The applicant failed to name anyone out of four. In view of the above, present application is not maintainable as the applicant failed to apply the procedure given for appointment of Arbitrator. 10. The argument of learned counsel for applicant regarding expiry of period of 30 days for nomination of Arbitrator has also been contested. It is submitted that when a notice for appointment of Arbitrator was not given as per the procedure under the General Conditions of Contract, the question of expiry of period of 30 days would not arise so as to seek appointment of Arbitrator under Section 11 of the Act of 1996. In view of the above, the first argument raised by learned counsel for applicant is not tenable. 11. It is also stated that Section 12(5) of the Amendment Act of 2015 has no application in the present matter. The ex-employees do not fall in any of the categories given in Fifth or Seventh Schedule appended to the Amendment Act of 2015. 11. It is also stated that Section 12(5) of the Amendment Act of 2015 has no application in the present matter. The ex-employees do not fall in any of the categories given in Fifth or Seventh Schedule appended to the Amendment Act of 2015. The issue in reference to Section 12(1) of the Amendment Act of 2015 should not be determined by this court by pre-supposing a degree of relationship of Arbitrator to hold them to be not independent. The issue aforesaid can be decided by the Arbitrator if an objection is raised by any of the parties. The court while deciding the application under Section 11 of the Act of 1996, should not travel on other issues which lies in the domain of an Arbitrator. The court cannot be substituted for an Arbitrator. In view of the above, argument in reference to Section 12(5) of the Amendment Act of 2015 may not be decided by this court. It may be left for the Arbitrator to decide it, if the Arbitrator fails to disclose his independence or it is questioned by any of the parties. A prayer is, accordingly, made to dismiss the application. 12. I have considered rival submissions made by learned counsel for the parties and perused the record. 13. It is a case where an agreement was entered between the parties, which are otherwise governed by General Conditions of Contract. When a dispute arose between the parties, a notice/letter was sent by the applicant on 18th March, 2017 to seek its settlement. It was with the request to accept the claims made therein. The Railways, in response to notice, sent a letter dated 22nd February, 2018 indicating names of four ex-employees, who can be appointed as Arbitrators. The applicant, vide letter dated 28th February, 2018, refused to select any of the persons in reference to Section 12(5) of the Amendment Act of 2015 and filed this application. 14. The applicant has mainly raised two issues to seek appointment of an independent Arbitrator. The first issue is about delay in nomination of the Arbitrator. It is submitted that no one was appointed as an Arbitrator within a period of 30 days from the date of receipt of notice sent by the applicant thus this court gets jurisdiction to appoint an independent Arbitrator. 15. The first issue is about delay in nomination of the Arbitrator. It is submitted that no one was appointed as an Arbitrator within a period of 30 days from the date of receipt of notice sent by the applicant thus this court gets jurisdiction to appoint an independent Arbitrator. 15. It is a settled law that if an independent Arbitrator is not appointed within 30 days from the date of notice, the court gets jurisdiction under Section 11 of the Act of 1996 to appoint an independent Arbitrator. It is when request for appointment of the Arbitrator is after applying the procedure. This court needs to examine facts of the case for the aforesaid and, for that, Clause 63 and 64 of the General Conditions of Contract are quoted hereunder for ready reference: “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 its completion and whether before or after the determination of the contract, shall be referred by the contractor to the GM and the GM 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, 57A,61(1), 61(2) and 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’ (matter not arbitrable) 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. 64.(1) Demand For Arbitration: 64.(1) (i)- 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 “excepted 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, given by the Railway, shall be referred to arbitration and other matters shall not be included in the reference. 64.(1)(iii)- (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 alongwith all the relevant documents and the relief or remedy 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. (d) Place of Arbitration: The place of arbitration would be within the geographical limits of the Division of the Railway where the cause of action arose or the Headquarters of the concerned Railway or any other place with the written consent of both the parties. 64.(1) (iv)- No new claim shall be added during proceedings by either party. However, a party may amend or supplement the original claim or defence thereof during the course of the arbitration proceedings subject to acceptance by Tribunal having due regard to the delay in making it. 64.(1) (iv)- No new claim shall be added during proceedings by either party. However, a party may amend or supplement the original claim or defence thereof during the course of the arbitration proceedings subject to acceptance by Tribunal having due regard to the delay in making it. 64.(1)(v)- 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 Railway that the final bill is ready for payment, he/they will be deemed to have waived his/their claim(s) and the Railway shall be discharged and released of all liabilities under the contract in respect of these claims. 64.(2) Obligation During 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 of such proceedings, provided, however, it shall be open for Arbitral Tribunal to consider and decide whether or not such work should continue during arbitration proceedings. 64.(3) Appointment of Arbitrator: 64.(3) (a)(i)-In cases where the total value of all claims in question added together does not exceed Rs.10,00,000(Rupees ten lakh only), the Arbitral Tribunal shall consist of a Sole Arbitrator who shall be a Gazetted Officer of Railway not below JA Grade, nominated by the General Manager. The sole arbitrator shall be appointed within 60 days from the day when a written and valid demand for arbitration is received by GM. 64.(3)(a)(ii)-In cases not covered by the Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a Panel of three Gazetted Railway Officers not below JA Grade of 2 Railway Gazetted Officers not below JA Grade and a retired Railway Officer, retired not below the rank of SAG Officer, 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 which may also include the name(s) of retired Railway Officer(s) empanelled to work as Railway Arbitrator to the contractor within 60 days from the day when a written and valid demand for arbitration is received by the GM. 16. Contractor will be asked to suggest to General Manager at least 2 names out of the panel for appointment as contractor’s nominee within 30 days from the date of dispatch of the request by Railway. 16. Contractor will be asked to suggest to General Manager at least 2 names out of the panel for appointment as contractor’s nominee within 30 days from the date of dispatch of the request by Railway. The General Manager shall appoint at least 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. GM shall complete this exercise of appointing the Arbitral Tribunal within 30 days from the receipt of the names of contractor’s nominees. 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 of other departments of the Railway for the purpose of appointment of arbitrator. 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 re-constituted Tribunal may, at its 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 power 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 cause to be done all such things as may be necessary to enable the Arbitral Tribunal to make the award without any delay. The Arbitral Tribunal should record day to-day proceedings. The proceedings shall normally be conducted on the basis of documents and written statements. The Arbitral Tribunal should record day to-day proceedings. The proceedings shall normally be conducted on the basis of documents and written statements. 64.(3) (a)(v)-While appointing arbitrator(s) under Sub-Clause (i),(ii) & (iii) above, due care 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 relates or who in the course of his/their duties as Railway servant(s) 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. The analysis and reasons shall be detailed enough so that the award could be inferred therefrom. 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 of a Tribunal and interpretation of a specific point of award to Tribunal within 60 days of receipt of the award. 64.(3) (b)(iii)-A party may apply to Tribunal within 60 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 three Members, any ruling on award shall be made by a majority of Members of Tribunal. In the absence of such a majority, the views of the Presiding Arbitrator shall prevail. 64.(5) Where the arbitral award is for the payment of money, no interest shall be payable 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 Railway Board from time to time and the fee shall be borne equally by both the parties. 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 Railway Board from time to time and the fee shall be borne equally by both the parties. Further, the fee payable to the arbitrator(s) would be governed by the instructions issued on the subject by Railway Board from time to time irrespective of the fact whether the arbitrator(s) is/are appointed by the Railway Administration or by the court of law unless specifically directed by Hon’ble court otherwise on the matter. 67.(7) Subject to the provisions of the aforesaid Arbitration and Conciliation Act 1996 and the rules thereunder and any statutory modifications thereof shall apply to the arbitration proceedings under this Clause.” 17. Clause 63 of the General Conditions of Contract provides that all disputes arising out of the contract should be referred to the General Manager for its determination. The decision thereof would be given within a period of 120 days. Clause 64(1)(i) of the General Conditions of Contract provides that if the Railway fails to make a decision within a period of 120 days then the Contractor, after expiry of period of 120 days but within 180 days of his claim, shall demand in writing reference of dispute to the Arbitrator. In view of the above, the first step, to be taken by any of the parties to seek arbitration, is given under clause 64(1)(i) of the General Conditions of Contract. 18. In the instant case, the applicant failed to follow the procedure given under the agreement. The aforesaid is reflected from their notice/letter dated 18th March, 2017 to make a claim. The last three paras of the said letter are quoted hereunder for ready reference: “We therefore request your honour to kindly accept our Claim which we are submitting as per Clause 63 & 64 of the General Conditions of Contract with the Railway and settlement the dispute by releasing our withheld payment and other related payments as mentioned in the Claim. We will thankful for kind Co-operation and early action in this regards. We therefore request your honour to kindly accept our Claim which we are submitting as per Clause 63 & 64 of the General Conditions of Contract with the Railway and settlement the dispute by releasing our withheld payment and other related payments as mentioned in the Claim. We will thankful for kind Co-operation and early action in this regards. We therefore request your honour to kindly accept our Claim which we are submitting as per Clause 63 & 64 of the General Conditions of Contract with the Railway and settlement the dispute by releasing our withheld payment and other related payments as mentioned in the Claim. We will thankful for kind Co-operation and early action in this regards. Considering the representation and claim You are requested to take decision as contemplated under clause 63 within the time specified in the clause 63 & 64, after giving reasonable opportunity of hearing to us. In case the Claims raised by us are not acceptable to Railway, kindly appoint Sole Arbitrator under the provisions of the Arbitration and conciliation Act 1996 and oblige.” 19. The paras quoted above show a request to accept the claims and release the amount, as a consequence thereupon. In the last para, a prayer is made to appoint an Arbitrator, if claims are not accepted. The request to appoint an Arbitrator cannot be taken in consonance to Clause 64 (1)(i) of the General Conditions of Contract. 20. As per the clauses referred and quoted above, the Contractor needs to wait for a period of 120 days to seek reference of dispute for arbitration after raising the claim. The appointment of Arbitrator cannot be without waiting for decision of the Railways within a period of 120 days. If the decision is given or it is not settled within a period of 120 days, a notice for appointment of Arbitrator needs to be given in writing thereafter, which has not been done in this case. The claim and notice for appointment of Arbitrator cannot be composite. It has to be separate in reference to clause 63 and 64(1)(i) of the General Conditions of Contract. In view of the above, I do not find that procedure given in the agreement for appointment of Arbitrator has been followed by the applicant. 21. A notice for appointment of Arbitrator in consonance to clause 64(1)(i) of the General Conditions of Contract has not been given. The application can be dismissed on the aforesaid ground itself with the liberty to the applicant to proceed in the matter in consonance to terms of agreement to seek appointment of Arbitrator. 21. A notice for appointment of Arbitrator in consonance to clause 64(1)(i) of the General Conditions of Contract has not been given. The application can be dismissed on the aforesaid ground itself with the liberty to the applicant to proceed in the matter in consonance to terms of agreement to seek appointment of Arbitrator. In absence of notice for appointment of Arbitrator after applying the procedure given under clause 63 and 64(1)(i) of the General Conditions of Contract, this court would not get jurisdiction after expiry of period of 30 days of the notice dated 18th March, 2017. The first issue is decided accordingly. 22. The second issue raised by the applicant is in reference to letter sent by the Railways on 22nd February, 2018. Names of four retired employees, to be nominated as Arbitrators, have been given. The designation of the ex-employees has also been given in the letter sent by the Railways. The issue has been raised in reference to Section 12(1) and 12(5) of the Amendment Act of 2015. 23. Before adverting to the aforesaid, I find that when the application under Section 11 of the Act of 1996 itself is not maintainable, the issue in reference to Section 12(1) and 12(5) of the Amendment Act of 2015 remains premature. However, on the request of the parties, I am dealing with the issue at this stage. 24. According to the learned counsel for applicant, an ex-employee cannot be nominated as an independent Arbitrator. It is hit by Section 12(1) and 12(5) of the Amendment Act of 2015. For ready reference, Section 12 of the Act of 1996 and Section 12 of the Amendment Act of 2015 are quoted hereunder: Pre-amended: “12. Grounds for challenge. - (1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality. (2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him. (3) An arbitrator may be challenged only if- (a) Circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or (b) He does not possess the qualifications agreed to by the parties. (3) An arbitrator may be challenged only if- (a) Circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or (b) He does not possess the qualifications agreed to by the parties. (4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.” Post-amended: “12. Grounds for challenge. - (1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances,- (a) such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality; and (b) which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a period of twelve months. Explanation 1.-The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator. Explanation.-2-The disclosure shall be made by such person in the form specified in the Sixth Schedule. (2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him. (3) An arbitrator may be challenged only if- (a) Circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or (b) He does not possess the qualifications agreed to by the parties. (4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made. (5) Notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject-matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator: Provided that parties may, subsequent to disputes having arisen between them, waive the applicability of this sub-section by an express agreement in writing.” 25. The Amendment Act of 2015 would be applicable to the present case in view of Section 26 of the Amendment Act of 2015. 26. It provides for application of the amending Act on those proceedings which have already commenced as per Section 21 of the Act of 1996. The commencement of the proceedings is to be taken from the date when a notice for appointment of Arbitrator is given by the party. In view of the aforesaid, the amended provisions would apply to all the cases which commenced prior to the date of amendment. 27. In the instant case, the notice for appointment of Arbitrator was given on 18th March, 2017 i.e. even subsequent to the Amendment Act of 2015, thus amended provision would apply. Section 12(5) of the Amendment Act of 2015 starts with non-obstante clause thus irrespective of what has been agreed by the parties, contrary to the amending provision, if a person falls in the relationship specified in the Seventh Schedule, shall be ineligible to be appointed as Arbitrator. The proviso, however, excludes those cases where subsequent to the dispute, the parties have waived applicability of sub-section (5) of Section 12 by an express agreement in writing. 28. The question for my consideration is as to whether an ex-employee of the Railways falls in any of the categories given under the Seventh Schedule. For ready reference, Clause 1 of the Seventh Schedule, which has been referred by the counsel, is hereunder: “Arbitrator’s relationship with the parties or counsel 1. The arbitrator is an employee, consultant, advisor or has any other past or present business relationship with a party.” 29. The clause of the Seventh Schedule has been referred by the applicant to show that a past employee having business relationship with the party cannot be appointed as Arbitrator. I am unable to accept the aforesaid argument in reference to clause 1 of the Seventh Schedule. It does not talk about an ex-employee but refers to an employee, which means a person in service of the organisation. The clause even talks about consultant and the advisor. Clause 1 excludes any other person having past or present relationship with the party. The past and present relationship should be of business with a party and is a separate category because an advisor, consultant and the employee do not involve in the business relationship with the parties. They form different categories. Clause 1 excludes any other person having past or present relationship with the party. The past and present relationship should be of business with a party and is a separate category because an advisor, consultant and the employee do not involve in the business relationship with the parties. They form different categories. If the legislature intends to exclude even the ex-employee to be nominated as Arbitrator, it would have been in specific terms in the Seventh Schedule. This court cannot substitute the provision by inserting a word, which otherwise does not exist. 30. The question is required to be considered even in reference to sub-section (1) of Section 12 of the Amendment Act of 2015. The purpose of amending the provision to bring Section 12(5) seems to have an independent Arbitrator, who may have no interest in any of the parties and, more specifically, in relation to the subject matter in dispute, which may likely to give rise to justifiable doubts as to his independence or impartiality. 31. The question herein comes as to whether the issue in reference to Section 12(1) of the Amendment Act of 2015 can be decided by this court while adjudicating the application under Section 11 of the Act of 1996. It is moreso when the Arbitrator is yet to be appointed. The issue about his independence cannot be determined by pre-supposing the appointment of Arbitrator in the present case when the applicant has been given choice to select two, out of four persons named by the non-applicants. It is otherwise a question to be determined by the Arbitrator, if a challenge is made under Section 12(3) of the Amendment Act of 2015. Sub-sections (1) and (2) of Section 12 of the Amendment Act of 2015, otherwise, require a disclosure by the Arbitrator in writing any circumstances referred under sub-section (1) and it is also subject to challenge by the party by invoking Section 12(3) of the Amendment Act of 2015. 32. I am unable to accept the challenge in reference to Section 12(5) of the Amendment Act of 2015 in this case. If any of the persons named by the non-applicants discloses his relation with other party, obviously, he would be ineligible to continue as an Arbitrator. 32. I am unable to accept the challenge in reference to Section 12(5) of the Amendment Act of 2015 in this case. If any of the persons named by the non-applicants discloses his relation with other party, obviously, he would be ineligible to continue as an Arbitrator. The past relationship should not be for the sake of it but to show interest in the party in relation to subject matter in dispute, whether financial, business, professional or any other kind. The issue in reference to Section 12(1) is left on the applicant to raise it by invoking Section 12(3) of the Amendment Act of 2015, if thought appropriate. 33. Herein, again, a question would come in reference to clause 63 and 64 of the General Conditions of Contract. As per clause 64(3)(a)(i), the appointment of the Arbitrator has to be made by the General Manager. It is not a case where the General Manager himself has been named as Arbitrator or his nominee so as to become ineligible for nomination of an Arbitrator. 34. The aforesaid issue is touched in view of the recent judgment of the Apex Court where if clause for arbitration provides named Arbitrator or his nominee and in case named Arbitrator is ineligible to be appointed as Arbitrator then he is made ineligible even for nomination of Arbitrator. 35. Clause 64(3)(a)(i) of the General Conditions of Contract indicates power of the General Manager to appoint an Arbitrator. He himself has not been named as Arbitrator so as to become ineligible for nomination of the Arbitrator. It would apply in those cases where clause for arbitration makes the General Manager himself to be an Arbitrator or his nominate. The clause would be hit by Section 12(5) of the Amendment Act of 2015 unless parties agree in writing, otherwise, as per proviso given thereunder. The aforesaid analogy would not apply in a case where the General Manager himself is not an Arbitrator but he has been given authority to nominate an Arbitrator. In that case, the competence would remain with him to appoint an Arbitrator, who is not falling in any of the degrees given under Seventh Schedule appended to the Amendment Act of 2015. The General Manager, while exercising his authority, would appoint an independent Arbitrator having no interest in the party, more specifically in the matter in dispute. In that case, the competence would remain with him to appoint an Arbitrator, who is not falling in any of the degrees given under Seventh Schedule appended to the Amendment Act of 2015. The General Manager, while exercising his authority, would appoint an independent Arbitrator having no interest in the party, more specifically in the matter in dispute. In view of the above, the difference has to be made between two type of cases given above to adjudge the competence for nomination of an Arbitrator. 36. In the instant case, the General Manager himself is not an Arbitrator so as to treat him to be ineligible even to nominate an Arbitrator. 37. In view of the discussion made above, I do not find application under Section 11 of the Act of 1996 to be maintainable at this stage. The applicant is thus given liberty to pursue his cause for appointment of Arbitrator by applying the procedure given under the agreement and, otherwise, if he selects any of the persons, so named by the non-applicants in their letter dated 22nd February, 2018, he would be entitled to make challenge by invoking Section 12(3) of the Amendment Act of 2015. However, the issues in reference to Seventh Schedule and Section 12(5) of the Amendment Act of 2015 have been determined in this case to avoid any confusion and to have clarity. 38. The arbitration application is disposed of with the aforesaid.