SIKAND CONSTRUCTION CO Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) THIS is a petition pending since April, 1975 under Section 20 of the Arbitration Act, 1940 for filing of the arbitration greement contained in Contract dated 27th April, 1965, relating to construction of State Bank of India Building at Parliament Street, New Delhi, for appointment of arbitrator and reference of disputes mentioned in Annexure A to the petition, to him.

(2.) THE petitioner, is alleged, to have completed the construction work but the State Bank of India, respondent, did not make payment. He claims Rs. 7,25,228.31 p. besides interest on account of the following tems of work :

(3.) THERE is no indication of a judicial hearing by the architects referred to in clause (37). The architects under this clause are to decide the disputes in writing but if either the employer or the con tractor, i.e., the respondent bank and the petitioner respectively, is dissatisfied with the decision of the architects, eitherparty may within 28 days after receiving the notice oF decision of the architects give ill writing notice to the other party through the architects requiring hat much matters in dispute be arbitrated upon. It is furthcr required by this clause that such written notice shall specify the matters in dispute. The disputes are required to be referred to a Fellow of the Indian Institute of Architects. The arbitrators have been conferred absolute power to open up, review and revise any decision of the architects and to determine all matters in dispute which may be submitted to them. Thus, clause (37) confers absolute power upon the arbitrators without any restriction. The arbitrators by their decision may override any one and all the decisions of the architects. Moreover, if a matter is not placed before the architects for decision in accordance with first part of clause (37) consequences for not following this procedure have not been provided for either in clause (37) or in any other clause of the contract', and. as such, the first part of clause (37) of the conditions of contract is only directory and not mandatory. Even in a case where the employer .e. the bank or the contractor i.e. the petitioner has not followed the procedure for getting the decision of the architects for any reason whatsoever, the employer or the contractor is not debarred from invoking arbitration. The employer and the contractor in all circumstances can invoke the arbitration referred to in clause (37). The intention of the parties to the contract is to get settled disputes of any nature whatsoever through the architects or the arbitrators. Clauses (35) and (37) of the conditions of contract provide the machinery for settlement of the various disputes between the employer and the contractor. Some of the disputes which come under clauses (2), (4), (8), (14), (20). (a), (b), (d), (f) and (h), (28), (32) and (38) a're finally decided by the architects and ars not open to review before the arbitrators but all other disputes of any nature whatsoever are subject to final decision and review of the arbitrators. Tf for any reason the architects do not take initiative or do not decide a matter when referred to by any of the partics or no referenece is made to architects for "decision, it does not mean that the arbitrators have no power to decide the dispute.