KOTHARI AND ASSOCIATES Vs. STATE OF GUJARAT

JUDGEMENT

(1.) R.A.MEHTA J. This Revision Application arises from dismissal of an application for referring the dispute to arbitration. The dispute is refused to be referred on the ground that it is barred by the provisions of O. 2 R. 2 C.P.C. Therefore the question is whether the provisions or principles of O. 2 R. 2 C.P.C apply to an application under the Arbitration Act.

(2.) The petitioner is a Construction contractor for certain work at Ukai dam. The work order was given on 17/01/1973 and the work was to be completed within 18 months i.e. before 16/07/1974. However the work was completed on 30/09/1975 and this excess period of 14 months was alleged to be due to delay on the part of the opponent government. The petitioner claimed that the government had extended the time to the detriment of the petitioner. It appears that the final bill was paid on 22/05/1979 and the security deposit was returned on 23rd August 1979. On 7/10/1980 the petitioner addressed a letter making further request and ultimately filed Civil Misc. Application No. 112 of 1981 on 27/03/1981 The petitioner submitted that the work had been completed by the applicant in all aspects and the final bill had been prepared and paid to the applicant on 22-5-1979. However according to the petitioner since the final bill did not represent the true and correct payments the same was accepted by the applicant under protest. The applicant also stated that during the progress of the work certain claims rights and disputes arising out of the contract had been put up from time to time. The plaintiff-petitioner has claimed rights and raised disputes and item No. 1 was as follows:

(3.) On 14/06/1982 the present Civil Misc. Application No. 196 of 1982 was filed for referring other disputes to arbitration. After narrating the contractual relationship and other averments in the same terms in paras 1 to 3 the petitioner made the following claims rights and disputes: (i) On account of overhead due to prolonging of work amounting to Rs. 3 41 805.6 ps. plus 18% interest p.a. from the date of completion of the work till its payment. (ii) On account of dewatering amounting to Rs. 2 59 200 plus 18 interest p.a. from the date of completion of the work till its payment. (iii) On account of penalty recoveries and cube testing charges amounting to Rs. 14 698.2 ps. plus 18% interest p.a. from the date of completion of the work till its payment. (iv) On account of overstay of capital and machinery amounting to Rs. 1 71 825 plus 18% interest p.a. from the date of completion of the work till its payment. (v) On account of delay in releasing security deposit and final bill amounting to Rs. 69 959.1 ps. The learned trial Judge has rejected the application by his order dt. 11/11/1982 on the ground that the claim was barred under the provisions of O 2 R. 2 C.P.C. It was argued on behalf of the Government in the trial court that the applicant had filed previous Civil Misc Appln. No. 112 of 1981 wherein he omitted to claim in respect of the present claim and therefore he is precluded from making the same claim by way of a subsequent application. On behalf of the applicant it was argued that since this was an application under the Arbitration Act and since it was not a suit the provisions of O. 2 R. 2 C.P.C. are not attracted. The trial court observed that there can produce one or more awards in the case of the execution of the work done after making a reference about the previous items of the work already executed. Relying on the judgment in the case of Munshi Ram v. Banwarilal AIR 1962 S.C. 903 the learned trial Judge held that C.P.C. is applicable to proceedings in court under the Arbitration Act and on the analogy of said decision the learned trial Judge held that the provisions of O. 2 R. 2 C.P.C would be attracted in the instant case and as the applicant failed to raise the same disputes in his previous application the same are barred under O. 2 R. 2 of C.P.C.