UNION OF INDIA Vs. VIDYAWATI CONSTRUCTIONS COMPANY ALIAHABAD

JUDGEMENT

(1.) G. P. Mathur, J. This appeal has been preferred against the judgment and order dated 25-4-1990 of Civil judge, Al lahabad given in proceedings under Sec tion 20 of the Arbitration Act by which the defendant- appellant Union of India has been directed to refer claims Nos. 1 to 11 to the sole arbitrator to be appointed by it who should be an Engineer-officer outside the department.

(2.) THE case of the plaintiff-respon dent in brief is as follows. THE plaintiff is a registered partnership firm and is doing construction business. THE defendant No. 3 Chief Engineer, Lucknow Zone M. E. S. invited tenders for special repairs at C. O. D. Chheoki, Allahabad. THE tender submitted by the. plaintiff was accepted on 7-9-1982 and the plaintiff complete the work as per terms and conditions of the agreement and the general terms and con ditions of the contract within the stipu lated time i. e. , 30-9-1983. THE defendant No. 3 did not pay full amount to the plain tiff as claimed by it. In para 9 of the plaint the details of the various items of dispute have been enumerated. In spite of several letters and reminders the Engineer in Chief Army Head Quarters, defendant No. 2 who is the person to appoint an ar bitrator as per terms of the contract failed to appoint an arbitrator for setting the claim of the plaintiff and therefore, the necessity of filing a petition under Section 20 of the Arbitration Act arose. THE relief claimed in the plaint is that the defendants be directed to file the original agreement of contract entered between the plaintiff and defendant No. 1 at Lucknow for the work to be done at C. O. D. Chheoki, Al lahabad and further the Court may ap point an arbitrator or defendant be directed to appoint an arbitrator to settle the dispute.

(3.) THE principal submission of learned Counsel for Union of India (defendant No. 1) is that after filing of the plaint but before the notice thereof had been received by the appellant, an ar bitrator had been appointed and there fore, the suit had become infructuous and the same was liable" to be dismissed. In this connection it may be noticed that the suit was filed on 10-5-1988 on which date the learned Civil Judge passed an order for registering the same and issuing summons to the defendants fixing 2-11-1988 for filing of written statement and 14-11-1988 for framing of issues. In the written state ment, which was filed on 2-5-1989, it was pleaded in para 8 that Engineer-in-Chief Army Head Quarter, New Delhi, vide his letter No. 13600/cc/445/e 8, dated 5th September, 1988 had referred claims Nos. 4 to 11 of the plaintiff tor arbitration to Sri R. J. Kumareson, Chief Surveyor of Works. THE record of the trial Court shows that on 16-11-1983 the plaintiff-respondent Vidyawati Construction Co. moved an ap plication stating that a reference had been made to Sri R. J. Kumareson, Chief Sur veyor of Works, vide letter dated 5-6-1988 but the whole dispute had not been referred to him and that Sri Kumareson (arbitrator) had issued a letter dated 25-10-1988 to the plaintiff to file claim before him by 30-1w988 and as the whole dis pute had not been referred to the ar bitrator an injunction be issued restrain ing the arbitrator not to proceed with the case till further orders of the Court. After hearing Counsel for the plaintiff, the learned Civil Judge passed an order dated 30-11-1988 that the arbitrator Sri R. J. Kumareson may give his award on the claims made by the plaintiff which had been enumerated in para 9 of the plaint and in case the defendants, Union of India, had any objection to such a course of ac tion, the arbitrator may stay the proceed ings till further orders of the Court. By the same order Court issued notice to defen dants fixing l5-2-1989for objections.