EXECUTIVE ENGINEER PWD AND IWT DEPARTMENT RAMNAGAR DIVISION, RAMNAGAR Vs. P.V. ARAVIND PWD CONTRACTOR NO. 74/A, 12TH MAIN 27TH CROSS, BSK 2ND STAGE BANGALORE-70

JUDGEMENT

(1.) PETITIONER has sought for quashing the order dated: Nil, passed by the Sole Arbitrator vide Annexure -C. By the impugned order, the Arbitrator has negatived the contention of the petitioner that the claim of the claimant is barred by limitation and that there is no arbitration clause as such found in the agreement entered into between the parties. The records reveal that the respondent herein approached this Court by filing CMP.No.1/2008 under Section 11(5) of the Arbitration and Conciliation Act, 1996 (for short hereinafter referred to as the 'Act') praying for appointment of Arbitrator. The statement of objections were not filed by the State Government. After hearing the counsel for the petitioner in CMP as well as the learned Government Advocate, this Court appointed Mr. B. Dayanand, Retired Chief Engineer, PWD as Sole Arbitrator to enter into the dispute and pass the award as per law. While concluding so, this Court has observed that there is an arbitration clause in the agreement entered into between the petitioner and the respondent known as "General Rules and directions for the guidance of Contractors". In view of the existence of contract between the parties and as the arbitration clause was not disputed by the petitioner herein at the time of disposal of CMP, the Arbitrator came to be appointed. The said Arbitrator Mr. B. Dayanand continued the proceedings for about 15 sittings. Unfortunately, he died prematurely. Thereafter, this Court passed one more order on 17.10.2011 appointing Mr. P. Periasami as the Sole Arbitrator on the application of the respondent. Said Mr. P. Periasami has also conducted the proceedings for about 10 sittings. Thereafter, the contention was taken by the petitioner before the Arbitrator that there is no arbitration clause in the agreement entered into between the parties and that the dispute is stale, inasmuch as it is time barred. Both the contentions are considered by the Sole Arbitrator and are rejected by the impugned order.

(2.) THERE cannot be any dispute that in the absence of any arbitration clause, the matter cannot be referred to the Arbitrator. So also there cannot be any dispute that any stale claims cannot be granted by the Arbitrator. But in the matter on hand, the Sole Arbitrator held that there is an arbitration clause in the agreement entered into between the parties and that the dispute is not time barred. There cannot be any dispute that the Arbitrator may rule on his own jurisdiction, including ruling on any objection with respect to the existence and validity of arbitration agreement. The person aggrieved by the rejection of his objection by the Arbitral Tribunal on its jurisdiction or the other matters referred, has to wait until the award is made, to challenge that decision/award in accordance with Section 34 of the Act before the Civil Court. Thus, the petitioner should not have rushed to this Court questioning the impugned order.