ORDER : Heard Mr. Kshitij Sharma, learned counsel for the petitioner. Also heard Mr. H.S. Ahluwalia, learned counsel, appearing for the respondents. 2. By this application under Section 11(6) of the Arbitration and Conciliation Act, 1996, (for short’ ‘the Act of 1996’), the petitioner prays for appointment of an Arbitrator in connection with a Contract Agreement No.19/CEE/CON/SECR/BSP/2015, dated 07.12.2015, entered into by the petitioner and the respondent No. 3, for executing a contract of “Conversion of 33KV overhead line (of CSEB) to underground cable at PP Yard Bhilai in SEC Railway, Raipur Division”. 3. The Contract Agreement provides that the Indian Railways Standard General Conditions of Contract would be applicable to the Contract Agreement unless specifically mentioned otherwise. Clause 64. (3)(a)(ii) of the General Conditions of the Contract provides for appointment of an Arbitrator in respect of claims over Rs.25 lakhs. 4. There was a dispute relating to release of payment to the petitioner and in connection with a letter dated 10.05.2018, issued by the respondents informing the petitioner that the petitioner had failed to start the work and had also not applied for extension and further informing that in the event of petitioner not mobilizing men and machinery within a period of seven days, steps would be taken to terminate the Contract Agreement. By letter dated 15.05.2018, the petitioner prayed for release of payments and short close the contract. No action having been taken by the respondents, the petitioner by letter dated “22.04.2018” had demanded for appointment of an Arbitrator. Obviously, that date was wrongly recorded as under the heading “Ref”, reference was made to the letter dated 10.05.2018. From the postal receipt, it is seen that the letter was sent on 16.05.2018. 5. A letter dated 31.05.2018 was sent by Deputy General Manager (G) to the petitioner on the subject of modification to Clause 64 of General Conditions of Contract, 2014 for implementation of the Arbitration and Conciliation (Amendment) Act, 2015 and asking the petitioner to send option pursuant to introduction of section 12(5) of the Act of 1996 in the prescribed format so as to enable the respondents to take necessary steps in connection with appointment of an Arbitrator. 6. It will be appropriate to extract the relevant extract of the letter dated 31.05.2018: “Reg: Modification to Clause 64 of General Conditions of Contract – 2014 for implementation of Arbitration and Conciliation (Amendment) Act 2015 Ref: 1. 6. It will be appropriate to extract the relevant extract of the letter dated 31.05.2018: “Reg: Modification to Clause 64 of General Conditions of Contract – 2014 for implementation of Arbitration and Conciliation (Amendment) Act 2015 Ref: 1. Your letter No.RGS/2018-19/SECR-CA-19-2016/326 dated 22.04.2018 2. Railway Board’s letter No. 2015/CE-I/CT/ARB/18 dated 11th November, 2016 In connection with your representation under reference 1, it is to state that in the light of Modification to Clause 64 of General Conditions of Contract -2014 some new sub clauses have been incorporated by the Railway Board, out of which two clauses i.e. Clause 64.(1)(ii) (b) and Clause 64.(3)(b) are re produced as under: Clause 64.(1)(ii)(b): “The parties may waive off the applicability of subsection 12(5) of Arbitration and Conciliation (Amendment) Act 2015, if they agree for such waiver, in writing after dispute having arisen between them, in the format given under Annexure XII of these conditions”. Clause 64.(3)(b): Appointment of Arbitrator where applicability of Section 12(5) of A&C Act has not been waived off: “The Arbitral Tribunal shall consist of a panel of retired Railway Officer, retired not below the rank of SAG Officer, as the arbitrators. For the purpose, the Railway will send a panel of at least (4) names of retired Railway Officer(s) empanelled to work as Railway Arbitrator duly indicating their retirement date to the contractor within 60 days when a written and valid demand for arbitration is received by the GM. Contractor will be asked to suggest to General Manager at least 2 names out the panel for appointment as contractor’s nominee within 30 days form 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 form the receipt of the names of the contractor’s nominee.” In view of the above modification, it is requested to please arrange to send your option duly filed in the prescribed format to this office at the earliest since, it is very much essential for taking further necessary action in connection with appointment of arbitrator as requested, if found feasible. Encl: Prescribed format & Rly Board’s letter dtd. 11.11.16.” 7. The petitioner replied by its letter dated 16.07.2018, the relevant portion of the same reads as follows: “1. Clause 64.(1)(ii)(b) You are aware that as per the relevant arbitration clause in the General Conditions of Contract, the power to appoint an arbitrator is vested with the General Manager, SECR. The only safeguard to the contractor, in order to ensure an appointment of an independent arbitrator, is provided for in Section 12 of the Arbitration and Conciliation Act, 1996 (as amended). In such a situation, if the applicability of Section 12(5) is waived off, the contractor’s interest will remain vulnerable at the hands of the appointing authority. 2. Clause 64.(3)(b) The terms of this clause are also not acceptable since although the arbitrators suggested are retired railways officers, it does not dilute the fact that they may be interested in the dispute since they have been employees of SECR. In certain cases, it may also be possible that they may be acting in some supervisory role with the SECR. Therefore, in view of the above, it is requested that the General Manger may appoint a sole arbitrator in our matter, whose appointment is strictly as per the schedules attached to Section 12 of the Arbitration and Conciliation Act, 1996 (as amended) within 30 days of receipt of this letter.” 8. Mr. Sharma submits that there is no dispute that there was an Arbitration Clause in the General Conditions of the Contract. It is contended by him that in view of coming into force of Section 12 (5) of the Act of 1996, the petitioner was asked as to whether it is agreeable to waive off Section 12(5) which provides that in terms of Seventh Schedule, amongst others, an employee will be ineligible to be appointed as an Arbitrator. The clause relating to Arbitration as laid down in the General Conditions of the Contract visualizes appointment of employees of the respondents as Arbitrators and it was in that context petitioner was asked to inform as to whether it was willing to waive off the applicability of Section 12(5) of the Act of 1996. 9. The clause relating to Arbitration as laid down in the General Conditions of the Contract visualizes appointment of employees of the respondents as Arbitrators and it was in that context petitioner was asked to inform as to whether it was willing to waive off the applicability of Section 12(5) of the Act of 1996. 9. Though after coming into force of Section 12(5) of the Act of 1996, the respondents had modified the manner and method of appointment of an Arbitrator, which was reflected in the letter dated 31.05.2018, the same would not be applicable to the petitioner in absence of any agreement entered into by the petitioner and Railways, Mr. Sharma contends. Even otherwise, after the petitioner had expressed its unwillingness to waive off the applicability of Section 12(5) of the Act of 1996, the respondents did not furnish a panel of 4 names for selecting two Arbitrators by the petitioner, according to their modified mode of appointment of Arbitrator, and as such, the petitioner has made out a case for appointment of an Arbitrator by this Court, he submits. 10. Mr. Ahluwalia, on a pointed question being asked by the Court as to whether in terms of Clause 64.(3)(b) as indicated in the letter dated 31.05.2018, the Railways had sent a panel of 4 names of Retired Railway Officers empanelled to work as Railway Arbitrator to the petitioner within 60 days from the date when the petitioner had expressed its inability to waive off Section 12(5) of the Act of 1996, he fairly submits that till now, no names have been sent. 11. When admittedly the respondents failed to act in terms of newly introduced Arbitration Clause, it will not be necessary to go into the question posed by Mr. Sharma that the new arbitration clause could not have been incorporated in the General Conditions of the Contract without their being any agreement in between the petitioner and the respondents, and I leave the question open to be decided in an appropriate case. 12. In view of the above discussion, I am of the opinion that the petitioner has made out a case for appointment of an arbitrator. 13. Hon’ble Mr. Justice Dhirendra Mishra, retired Judge of this High Court, is appointed to act as the Sole Arbitrator. 14. The Registry is directed to communicate this order to Hon’ble Mr.Justice Dhirendra Mishra, in His Lordship’s address. 15. 13. Hon’ble Mr. Justice Dhirendra Mishra, retired Judge of this High Court, is appointed to act as the Sole Arbitrator. 14. The Registry is directed to communicate this order to Hon’ble Mr.Justice Dhirendra Mishra, in His Lordship’s address. 15. The remuneration of the Arbitrator shall be settled with the mutual consent of the parties. 16. The arbitration application is allowed.