K. K. JOHN Vs. STATE OF GOA

JUDGEMENT

(1.) HEARD Mr. S. G. Desai, learned Senior Counsel appearing for the appellant and Mr. M. Salkar, learned Government Advocate appearing for the respondent.

(2.) THE above appeal challenges the judgment dated 04.03.2005 passed by the learned Ad-hoc Additional District Judge, South Goa, Margao, in Arbitration Suit No. 1/2004.

(3.) SHRI G. Desai, learned Senior Counsel appearing for the appellant has taken me through the impugned judgment and pointed out that the learned District Judge has framed three points for determination with ard to the objections raised by the respondent under Section 34 of the Arbitration and Conciliation Act, 1996. The learned Senior Counsel has pointed out that the first two points for determination are irrelevant in view of the order passed earlier by the learned Civil Judge Senior Division, Margao, relying upon the judgment of the learned Single Judge of this Court to the effect that the Arbitration and Conciliation Act, 1996 was applicable by interpreting a similar clause which is found in the agreement executed between the parties. The learned Senior Counsel further pointed out that once it is held that the objections raised by the appellant are governed by the provisions of the Arbitration and Conciliation , 1996, the learned Judge was not justified to consider whether such objections were to be dealt with in terms of the provisions of 1996 Act. The learned Senior Counsel further points out that the judgment relied upon by the learned Single Judge was on the basis of the judgment of the Apex Court which held in similar circumstance that the provisions of 1996 Act would be applicable. The learned Senior Counsel as such submits that the learned Judge was not justified to consider the objections filed by the respondent under 1940 Act when according to him the rights of the parties would be governed by 1996 Act. The learned Senior Counsel as such submits that on this ground alone the impugned judgment deserves to be quashed and set aside. The learned Senior Counsel dealing with the merits of the dispute raised by the parties points out that the respondent have unilaterally terminated the agreement executed between the parties when according to him such termination was not at all justified. The learned Senior Counsel further submits that the learned Judge has erroneously accepted the objections filed by the respondent on an erroneous consideration that there was no formal agreement executed between the parties with regard to the work order. The learned Senior Counsel further submits that once tender was accepted by the respondent, a legal contr was enforced and as such, merely because the formal contract was not executed by itself was not proper for the learned District Judge to uphold that the objections raised by the respondent. The learned Senior Counsel further submits that it is well settled that in case of breach of contract, the respondent would be liable to pay the damages/compensation to the appellant, and relied upon the judgments of the Apex Court in (2009) 5 SCC 678 in the case of Madhya Pradesh Housing Board V/s Progressive Writers and Publishers; (2011) 10 SCC 573 in the case of MSK Projects India (JV) Limited Vs State of Rajasthan and another and (1984) 4 SCC 59 in the case of M/s A. T. Brij Paul Singh and others V/s State of Gujarat. The learned Senior counsel has pointed out that the damages in such circumstances can fix at 10% to 15% and according to the learned Senior Counsel, the Arbitrator was justified to award such damages at the rate of 10% on the value of the work. The learned Senior Counsel as such submits that the learned District Judge was not justified to uphold the objections raised by the respondent and as such the impugned judgment passed by the learned District Judge deserves to be quashed and set aside.