G. RAJENDRABABU Vs. THE SUPERINTENDING ENGINEER, FISHING HARBOUR

JUDGEMENT

(1.) The above appeal is directed against the judgment and decree is C.S. No. 208 of 1996 (A.A.) of Jayasimha Babu, J. The plaintiff is the appellant. The appellant filed C.S. No. 208 of 1996 under Sec. 20of the Arbitration Act to direct the defendant -respondent to file in this Court the Original Agreement No. CR15/86 -87 dated 7 -11 -1986 and appoint an arbitrator to hear and decide the disputes between the plaintiff and defendant and make an order of reference to him of the dispute enumerated in para 10 above of the affidavit of the appellant.

(2.) Pursuant to the tender invited by the respondent for the construction of quay -wall and side walls of ship way with quarried rubble backfill and reclamation of fishing harbour at Chinnamuttom in Kanyakumari District, the appellant submitted their tender and the above work was awarded to the plaintiff by the respondent dated 23 -7 -1986 for a total value of Rs. 2,17,37,265/ - Both the parties entered into an agreement dated 7 -1 -1986 wherein the terms and conditions of the above work have been set out. The appellant could not commence the work immediately due to various factors. This apart, the appellant had quoted their rights for the work in the year 1985 and due to no fault of them, the contract work had been prolonged to 1990 though the original contract was for 18 months. However, the defendant sought to terminate the appellant's contract on 25 -9 -1990 even though the appellant was in no way responsible for the delay in the work. According to the appellant the termination is illegal and unjustifiable and that the respondent is liable to pay the appellant the damages, losses and expenses caused to them by means of the said breach. So, the appellant filed O.S. No. 175 of 1990 before the Subordinate Judge, Nagercoil for declaration of the cancellation of the contract as illegal and for consequential reliefs.

(3.) A Commissioner was appointed to assess the quantities of works done by the plaintiff -appellant and the said Commissioner by his report dated 1 -3 -1995 has assessed the work done by the appellant in respect of the above contract. In the meanwhile, the respondent prepared a final bill in respect of the above work on 15 -3 -1995 mentioning the figures which according to appellant are totally incorrect. One of the major aspects of the final bill relates to seigniorage charges on materials used in the work and the respondent has sought to recover the same from the appellant in spite of the fact there is no provision in the contract authorising such deductions. The appellant therefore addressed the respondent on 19 -3 -1995 stating their objections to the final bill prepared by the respondent for which the respondent had sought a reply on 7 -4 -1995. According to the appellant by virtue of the letters exchanged between the parties, disputes have arisen between the appellant and the respondent and the agreement between the parties provides for arbitration of all disputes as set out in the page 3 of the Articles of Agreement read with clause 4.56 of Special Conditions of Contract. Accordingly, the appellant filed the above suit under Sec. 20 of the Act seeking the nomination of an Arbitrator to hear and decide the disputes between the appellant and the respondent and as enumerated in paragraph 10 of the affidavit filed in C.S. No. 208 of 1986 (AA).