SUPERINTENDING ENGINEER FISHING HARBOUR PROJECTS CIRCLE NAGERCOIL Vs. ANDHRA CIVIL CONSTRUCTION COMPANY

JUDGEMENT

(1.) THIS appeal is preferred against the order passed by the learned Single Judge in Application No. 6413 of 1991 in O. P. No. 37 of 1989 dated 10. 3. 1992 to refer two additional issues to arbitration for adjudication by a retired Chief Justice of Gujarat High Court.

(2.) THE respondent in Application No. 6413 of 1991, viz. , superintending Engineer, Fishing Harbour , is the appellant. THE respondent is Andhra Civil Constructions. It is averred in the petition filed by the respondent herein that they entered into a contract with the appellant for the construction of a rubble-cum-dolosse protection (eastern breakwater) at the Chinnamuttom Fishing Harbour in Kanyakumari and an agreement dated 15. 7. 1984 was entered into between the parties. THE above work was completed on 30. 9. 1987. During the course of execution of work, certain disputes arose between the applicant and the respondent and as there wasan arbitration clause and wanted to refer the dispute to arbitration. However, the appellant herein filed O. P. No. 37 of 1989 before this Court, under Sec. 33 of the Arbitration Act contending that the disputes could not be referred to arbitration. During the hearing of the above o. P. , both parties filed a memo before the learned Single Judge of this Court, for the appointment of Justice P. R. Gokulakrishnan (Retired Chief Justice of the gujarat High Court),as the sole arbitrator to hear and decide the disputes between the parties. Accordingly, as per an order dated 18. 2. 1991, the learned single Judge appointed Justice P. R. Gokulakrishnan as the sole arbitrator and the arbitration proceedings started with regard to the disputes between the parties. Later, the respondent Andhra Civil Constructions Company, filed another application-Application No. 6413 of 1991-for referring two additional issues for arbitration, viz. , (1) the liability, if any, for the payment of excise duty on dolosses is that of the respondent and is not the Government bound to discharge such liability and help the contractor indemnified against the same and (2) Whether the respondent is liable to refund the security Deposit of Rs. 5. 56 lakhs to the applicant to the arbitration of mr. Justice P. R. Gokulakrishnan"

(3.) THE learned counsel has also contended thai there are specific provisions under the contract to refer such disputes to arbitration. THE copy of the contract has not been placed before us and the learned counsel has not pointed out any provisions in the said contract. In any event, as we have taken the view that the statutory liability cannot be decided by any outside authority, viz. , the arbitrator and it ought to be decided only by the authorities specified under the Act and we, therefore, reject the contention of the learned counsel for the respondent.