STATE OF KERALA Vs. P.A. JACOB

JUDGEMENT

(1.) FIRST Respondent was the contractor for the work "P.I.P.R.B. Circle, formation of Kaviyoor Branch Canal. 3rd reach from Ch: 2,300 M -3576M - including C.D. works". The agreement was executed between the parties on 24th November 1976. Disputes arose during the progress of the work and those disputes were referred to Chief Engineer (Arbitration), Thiruvananthaputam. Chief Engineer (Arbitration) on 22nd May 1978 passed a "nil" award. Respondent filed O.P. (Arb.) No. 59/78 under Section 30 of the Arbitration Act, 1940, hereinafter referred to as 'the Act', to set aside the award. The Subordinate Judge's Court, Alappuzha, set aside the award by order dated 16th July 1980. Respondent then filed O.P. (Arb.) No. 85/84 before the Subordinate Judge's Court, Alappuzha Under Section 20 of the Act for referring the disputes to a fresh arbitrator appointed by Court. This petition was transferred to the Subordinate Judge's Court, Pathanamthitta where it was renumbered as O.P. (Arb.) 54/85. The Court by judgment dated 25th September 1987 appointed Shri Sankaragankah, retired District Judge as sole arbitrator. That order was challenged by the Government before this Court in M.F.A. No. 94/88. A Bench of this Court by judgment dated 3rd March 1989 appointed Shri K. Ramakrishnan Nair, retired Chief Engineer (PWD) as the sole arbitrator. The arbitrator entered on reference on 22nd March 1989. He passed an award on 15th July 1989 on disputes (1) and. (3) in the following terms:

(2.) THE arbitrator then filed the Award before the Subordinate Judge's Court, Pathanamthitta under Section 14 of the Act. The prayer of the Government to set aside the award was rejected by that Court. Thereupon it passed a judgment and decree in terms of the award on 30th November 1989. The judgment and decree were challenged before this Court in M.F.A. 355/90 on the ground that the Court below had no jurisdiction to receive the award and entertain it under Section 17 of the Act because the award ought to have been filed in the High Court in view of the fact that the arbitrator was appointed by this Court. M.F.A. 355/90 was allowed and the judgment and decree passed by the Subordinate Judge's Court were set aside. That Court was directed to return the award and the necessary records to the arbitrator for filing the same before this Court. In compliance with that judgment, the arbitrator filed the award and connected records before this Court and it is numbered as O.P.(Arb.) No. 7282 1990. Notice under Section 14(2) of the Act was served on the Petitioner. Thereupon Petitioner filed application under Sections 16, 30 and 33 of the Act for setting aside the award on disputes (1) and (3) passed by the arbitrator. Petitioners' application is O.P. No. 8642/90.

(3.) POINT No. (i). - When the claimant raised a dispute regarding the amount payable to him, it was referred to the Chief Engineer (Arbitration) as per the terms of the agreement. He entered on reference and passed a 'nill' award on 22nd May 1978. It was a non -speaking award. That award was challenged by the claimant before the Subordinate Judge 's Court in OP. (Arb.) 59/78. On 16th July 1980 the Subordinate Judge 's Court set aside the award. On 9th May 1983 the claimant moved the Chief Engineer (Arbitration) to revive the claim. He took the view that he had no jurisdiction to re -entertain the claim as he became functus officio on passing the first award. In view of this stand taken by the Ch Engineer (Arbitration) in his order dated 2nd June 1984, the claimant moved the Subordinate Judge 's Court under Section 20 of the Act for appointing an arbitrator. That court by order dated 25th September 1987 referred the dispute to Shri Sankaraganakan, retired District Judge, for arbitration. State challenged that order before this court in M.F.A. 94/88. Before this court it was contended that the matters in dispute cannot be referred to a second arbitrator. Dealing with this issue this court observed: