JUDGMENT : 1. Instructions produced before this Court today is taken on record. 2. Present application has been filed seeking appointment of a neutral Arbitrator in terms of the powers vested in this Court by virtue of Section 11 (6) of the Arbitration and Conciliation Act, 1996 (in short 'the Act'). 3. The averments, in brief, are that Opposite Parties through tender invited bid for maintenance contract of EOT Cranes, DSA and EOT Track Measurement and Repairing with Spares. In pursuance to the said tender, the applicant also gave his bid and was declared successful. Subsequently, a Letter of Acceptance was issued by the Opposite Parties and subsequent thereto, an agreement was entered into between the parties on 18.4.2015. A copy of the agreement is filed as Annexure-3. Arbitration clause is provided under Condition No. 26 of the tender document, which is as under; "26.1 In the event of any question, dispute or difference arising under these conditions or any special conditions of contract, or instructions to tenderers or in connection with this contract (except as to any matter the decision of which is specifically provided for by these conditions or instructions to tenders or the special conditions) the same shall be referred to the sole arbitration of a Gazetted Railway Officer appointed to be the 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 his duties as a Railway servant had 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. 26.2 In the event of the arbitrator dying neglecting or refusing to act, or resigning or being unable to act for any reason or his award being set aside by the court for any reason, it shall be lawful for the authority appointing the arbitrator to appoint another arbitrator in place of the out going arbitrator in the manner aforesaid. 26.3 It is further a term of this contract that no person other than the persons appointed by the authority as aforesaid should act as arbitrator and that if for any reason that is not possible the matter is not to be referred to arbitration at all. 26.3 It is further a term of this contract that no person other than the persons appointed by the authority as aforesaid should act as arbitrator and that if for any reason that is not possible the matter is not to be referred to arbitration at all. 26.4 The arbitrator may from time to time with the consent of all the parties to the contract enlarge, the time for making the award. 26.5 Upon every and any such reference, the assessment of the cost incidental to the reference and award respectively shall be at the discretion of the arbitrator. 26.6 Subject to as aforesaid, the Arbitration Act 1940 and the rules there under and any statutory modification thereof, for the time being in force, shall be deemed to apply to the arbitration proceedings under this clause. 26.7 Work under the contract, if reasonably possible if so decided by the Engineer, may continue during the arbitration proceedings and no payment due to or payable by the Engineer shall be with held on account of such proceedings. 26.8 The venue of arbitration shall be the place from which the contract is issued, or such other place as the arbitrator at his discretion may determine. 26.9 In this clause the authority to appoint the arbitrator includes, if there be no such authority, the offer, for the time being discharging the functions of that authority, whether in addition to other, functions or otherwise." 4. The contention is that after the completion of the contract, certain amounts were not being paid, as such, a dispute arose between the parties and pursuant to the arbitration clause, a request was made on 31.8.2020 for payment of the due amount along with the request that in case the payment was not being made, the matter may be referred before the Arbitrator in terms of the arbitration clause. 5. The applicant claims that once again he was informed vide letter dated 23.9.2020 that no claims are pending and all the claims have been forfeited by the Opposite Parties. Certain other allegations were also levelled against the applicant. 6. The applicant claims that once again on 1.10.2020, the applicant requested the Opposite Parties that as dispute has arisen between the parties, the matter may be referred to the arbitration as per the arbitration clause in the agreement. Certain other allegations were also levelled against the applicant. 6. The applicant claims that once again on 1.10.2020, the applicant requested the Opposite Parties that as dispute has arisen between the parties, the matter may be referred to the arbitration as per the arbitration clause in the agreement. It is stated that as no Arbitrator was appointed in terms of the request so made on 1.10.2020 within a period of 30 days as mandated under Section 11 (4) of the Act and thus, the applicant has approached this Court for appointment of an Arbitrator. 7. Sri Rajnish Kumar Rai, Advocate appearing on behalf of Opposite Parties, on instructions, states that on 3.12.2020, one Sri Harsh Kumar, a retired employee of the railways has been appointed as an Arbitrator in terms of the request of the applicant dated 1.10.2020 and thus, this application is liable to be rejected. He further argues that agreement in question includes the General Conditions of Contract (in short 'GCC') which provides for a manner of appointment of arbitrator. 8. Clause 64 of the GCC is quoted as under: 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) (a) 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 or difference, 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. Only such dispute or difference, 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) (ii) (b) The parties may waive of the applicability of sub-section 12 (5) of Arbitration and Conciliation (Amendment) Act, 2015. If they agree or such waiver in writing after having arisen between them in the formation under Annexure XII of these conditions.” "64. (3) Appointment of Arbitrator: ………..................................................................... 64. (3) (a) (ii) In case not covered by the Clause 64(3)(a)(i), the Arbitral Tribunal shall consist of a Panel of three Gazette Railway Officers not below JA Grade or two Railway Gazette 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 at least four (4) names of Gazette 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………”. 9. On the strength of the said clause as referred above, Sri Rajnish Kumar Rai argues that in terms of the proviso to Section 12(5) of the Act, once there is an express waiver the bar contained under Section 12(5) of the Act would not apply. He further fortifies his submission to state that retired employees would not fall within the rigours of Section 12 (5) of the Act as they are included in the panel of Arbitrators and in terms of the GCC, there is an express agreement with regard to the appointment of the retired employees and thus, the contention of counsel for the applicant does not merit acceptance. 10. Sri Rajnish Kumar Rai submits that the Diesel Locomotives Works (in short DLW) is an organisation within the Indian Railways and is governed by the Indian Railways. 10. Sri Rajnish Kumar Rai submits that the Diesel Locomotives Works (in short DLW) is an organisation within the Indian Railways and is governed by the Indian Railways. He further submits that the proposed Arbitrators are the retired employees of railways and do not stand disqualified by virtue of Clause 1 of the Seventh Schedule read in consonance with Sections 12 (1) and 12 (5) of the Act, to which the counsel for the applicants submits that the proposed Arbitrator would clearly fall within scope of Clause 1 of the Seventh Schedule as he is an retired employee with the railways under which the respondent organization functions. 11. He further placed reliance on the judgment of the Supreme Court in Central Organisation for Railway Electrification Vs. M/s ECI-SPIC-SMO-MCML (JV), A Joint Venture Company dated 17.12.2019 passed in Civil Appeal Nos. 9486-9487 of 2017 (arising out of the SLP (C) Nos. 24173-74 of 2019). Based upon the said judgment, he argues that Supreme Court had duly considered Clause 64 of the GCC and argues that there is an express agreement in terms of the proviso to Section 12(5) of the Act and thus, the contention of the counsel for the applicant merits rejection on that count. He further argues that in the said very judgment, the question of non-appointment of Arbitrator within 30 days was also considered and repelled by the Supreme Court. 12. Refuting the submissions, the counsel for the applicant specifically argues that in the request dated 31.8.2020, a specific denial was made with regard to the right of appointment of an Arbitrator, whose names finds mention in Schedule 7 of the Act and thus, he argues that there was no waiver in terms of proviso to Section 12 (5) of the Act. He further argues that on a plain reading of Section 12(5) of the Act read with the proviso makes it clear that two conditions are required for waiver of the bar under Section 12(5) of the Act namely that there should be an express agreement in writing specifically and the said agreement in writing should be subsequent to the dispute having arisen. In the present case, he argues that even if for the sake of arguments, it is presumed that Clause 64 of the GCC would amount to waiver in terms of the proviso to Section 12(5), the same falls short of the requirement of the proviso as, admittedly, the same has not been executed subsequent to the dispute having arisen in between the parties. He has strongly placed reliance on the judgment of the Supreme Court in the case of Bharat Broadband Network Limited Vs. United Telecoms Limited, (2019) 5 Supreme Court Cases 755 wherein the Supreme Court had considered the scheme of Section 12(5) and the proviso to Section 12(5) and had specifically held as under: "20. This then brings us to the applicability of the proviso to Section (12)5 on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section (12)5 will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section (12)5 refers to an “express agreement in writing”. The expression “express agreement in writing” refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states: “9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.” 13. It is thus necessary that there be an “express” agreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. It is thus necessary that there be an “express” agreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12 (5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khan’s invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khan’s appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrator’s attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16 (2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also incorrect in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The judgment under appeal is also incorrect in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khan’s appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate." 14. After hearing the parties what is to be considered by this Court is whether the appointment of Arbitrator, as informed by Sri Rajnish Kumar Rai on 3.12.2020 is a valid appointment or not and whether the Court can appoint an neutral arbitrator in exercise of its powers under Section 11 (4) and 11 (6) of Act. 15. A peculiar situation has arisen as the counsel for the parties have relied upon the Supreme Court judgment dealing with the issue in the case of Bharat Broadband Network Limited (Supra), wherein the Supreme Court had clearly considered the scheme of Section 12(5) read with Seventh Schedule of the Act to hold (i) that a person who is disqualified cannot be appointed as an Arbitrator unless there is an agreement in writing with regard to the specific named Arbitrator; (ii) the said agreement in writing should be subsequent to the arising of the dispute in between the parties; (iii) and such agreement in writing should be in conformity with Section 9 of the Contract Act. 16. The said judgment although was considered by the Supreme Court in the judgment in the case of Central Organisation for Railway Electrification (Supra), however, on a reading of the said judgment, there appears to be no discussion with regard to the agreement (in the present placed Clause 64 (3)(b) of the GCC) being subsequent to the arising of the dispute or not. 17. In view of the fact that the judgment in the case of Central Organisation for Railway Electrification (Supra) does not consider the scope of the proviso to Section 12 (5) as to whether the GCC is subsequent to the arising of the dispute or not, I am bound by the judgment of the Supreme Court in the case of Bharat Broadband Network Limited (Supra) which specifically deals with the issue. The Supreme Court in the case of Central Organisation for Railway Electrification (Supra) had dealt with the issue of expiry of 30 days from the date the railway, on appointment of Arbitrator, and has held that in view of the manner of appointment prescribed under Clause 64 of the GCC, the period of 30 days would have no applicability. I have already held that following the judgment in the case of Bharat Broadband Network Limited (Supra) that Clause 64 of the GCC is in not an express agreement in writing in conformity with Section 9 of the Contract Act and is also not subsequent to the arising of dispute, as such, the procedure prescribed therein would also having no applicability. The mandate of the Act as contained under Section 11 (4) is extremely clear as the time for appointment of Arbitrator is only restricted to 30 days. Admittedly, the arbitrator has not been appointed within 30 days. Thus, I have no hesitation to hold that the applicant is right in approaching this Court for appointment of an Arbitrator in exercise of the powers under Section 11 (4) and 11 (6) of the Act. Accordingly, I appoint Justice Shashi Kant Gupta (R/o Judges Bungalow No. 25, Drummond Road, Prayagraj/9 Elgin Road, Civil Lines, Prayagraj (Mobile No. 9415216833) as an Arbitrator. 18. Office is directed to seek consent of the learned Arbitrator by the next date in terms of mandate of Section 11 (8) of the Act. List this case on 7.1.2021.