STATE OF KERALA Vs. SIEY VARGHESE

JUDGEMENT

(1.) THE appellants in these two appeals are the State of Kerala and the Superintending Engineer, Irrigation Circle , Calicut (we shall refer to them as the "state" ). THE respondent in either appeal it the contractor who entered into an agreement with the State on 8-9-198 0. THE appeals are filed under S. 39 (1) (iv) of the arbitration Act, 1940 against the judgments of the learned Subordinate Judge, Trivandrum in O. S. (Arb.) Nos. 373 and 376 of 1983. THE learned judge ordered in each case that the arbitration agreement be filed, notwithstanding the State's contention that the agreement did not contain an arbitration clause. THE learned judge held that the Madras Detailed Standard Specifications (the "m. D. S. S ") including Clause. 73 relating to arbitration have been incorporated in the contract and the parties have thus agreed to refer their differences to arbitration.

(2.) SHRI P. Krishnamoorthy, appearing for the State, submits that the parties have agreed not to refer their differences to arbitration, and the arbitration clause in M. D. S. S. has been excluded by a specific provision of their agreement.

(3.) THE agreement contains the following recital: "and WHEREAS the Contractor has also signed the copy of the Madras Detailed Standard Specifications and addenda volume thereto maintained in the Irrigation, Calicut Division Office in acknowledgement of being bound by all the conditions of the clauses of the Standard Preliminary specification and all the Standard Specifications for items of works described by a Standard Specification number in Schedule. "