J.B.CONSTRUCTION COMPANY Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal has been preferred by the Plaintiff under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) questioning the legality and propriety of the judgment and decree dated 12.01.2012 passed in Civil Suit No.16-B/2010 whereby the learned trial Court has dismissed the suit holding it to be not maintainable.

(2.) Briefly stated the facts of the case are that the Plaintiff being a partner of M/s. J.B.Construction Company instituted a suit claiming refund of 432 number of fish plates or refund of Rs.1,30,000/- in lieu thereof by submitting, inter alia, that he is the railway contractor and has entered into an agreement with the Defendants, Railway Department, on 22.11.2002 for the completion of work of execution of various pathway works in connection with 18 kms. CTR/TSR (16 kms. With Track Relaying Train and 2 kms. Manually) and other miscellaneous works worth Rs.41,17,405/- and the dispute, which has arisen between the parties was decided by the arbitrator vide its award dated 12.02.2007. According to the Plaintiff, the alleged fish plates (432 in number) have already been deposited by him with the Railway Department prior to passing of the alleged award on 21.11.2006, yet a sum of Rs.1,30,032/- has been recovered from him owing to non-deposit of the same. Further contention of him is that despite the issuance of notice on 04.12.2008 seeking refund of those fish plates or in lieu thereof for recovery of Rs.1,32,032/-, recovered illegally from him based upon the said award, no reply was ever given by the Railway Department, which compelled him for the institution of the suit in the instant nature, instituted on 05.05.2009.

(3.) While contesting the aforesaid claim, it is pleaded by the Defendants that since the arbitrator has already passed the award on 12.02.2007 after considering the dispute raised by the Plaintiff as per the terms and conditions stipulated in the alleged agreement and since the same has already attained its finality and, as the Plaintiff has failed to question the same under Section 34 of the Arbitration and Conciliation Act, 1996 (for brevity, the 'Act of 1996'), therefore, the suit as framed is not maintainable and deserves to be dismissed.