H CANDOLKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition filed under Article 226 and 227 of the constitution of India takes exception to the order dated 20. 09. 2001, passed by the learned Additional Civil Judge, Senior division, Panaji in Special Execution Application No. 36/2000/b, by which order the said application filed by the petitioner came to be dismissed.

(2.) THE factual matrix giving rise to the filing of the above petition is as follows: the petitioner was awarded the contract of 6 nos. Type-B and 6 nos. Type C staff quarters at Ratnagiri by the executive Engineer, Postal Civil Division, Nasik road. The estimated value of the said work was Rs. 33,26,878. 47. The said work order came to be issued on 03. 10. 1992. The respondents herein rescinded the said contract on 21. 04. 1993 on the ground that the petitioner was not proceeding with the work with due diligence. On such rescission, the petitioner by his letter dated 23. 07. 1994 raised seven claims totally amounting to rs. 6,61,000/- plus interest at 21% from 21. 04. 1994. By the said letter the petitioner called upon the Executive Engineer to pay all the amounts within 15 days of the said claim and that on his failure to do so, the disputes or the differences will be considered to have arisen between the parties. By his letter dated 10. 08. 1994, the Executive Engineer disputed the claim made by the petitioner. The Superintending Engineer in turn, by his letter dated 05. 09. 1994 claimed compensation of rs. 2,04,929. 30 from the petitioner allegedly under clause 2 of the said contract. The petitioner by his letter of the next date i. e. 06. 09. 1994 called upon the Executive Engineer to appoint a suitable person to be the Sole Arbitrator within a period of 15 days, from the date of receipt of the said letter to refer the matter for adjudication and settlement of the disputes and differences that have arisen between the parties. The said letter of the petitioner was received by the Executive Engineer on 12. 09. 1994. However, the Executive Engineer failed to appoint an Arbitrator as demanded by the petitioner. Though no action was taken in respect of the appointment of the Arbitrator, the petitioner was informed that if the amount is not paid, the same would be recovered from the petitioner's security deposit under clause 25 of the Contract. The petitioner by letter dated 28. 09. 1994 which was in response of the said letter denied any liability to pay any compensation.

(3.) THE petitioner thereafter filed Special Civil Suit no. 208/1994/a in the Court of the Civil Judge, Senior Division, panaji under Section 8 r/w Section 20 of the Arbitration Act, 1940. This was done by the petitioner on 18. 11. 1994. In the said suit an order came to be passed on 30. 08. 1997 whereby the plaint was ordered to be returned to the petitioner for presentation in the proper Court. In terms of the said permission granted, the petitioner re-presented the plaint on 29. 09. 1997 in the Court of the Civil Judge, Senior Division, ratnagiri and the said suit came to be registered as Civil Suit no. 213/1997. In the said suit, an order came to be passed on 15. 10. 1998 by the learned Civil Judge, Senior Division appointing one Shri G. R. Karandikar, retired Superintending engineer, Irrigation Department, Goa as the Sole Arbitrator to decide the dispute between the parties. On 07. 07. 1999, the respondent no. 1 herein under which the Postal Department functions filed an application challenging the jurisdiction of the arbitrator to enter upon the reference. The said objection was withdrawn on 30. 07. 1999 and the respondent no. 1 submitted to the jurisdiction of the said Arbitrator and participated in the said arbitral proceedings. The said Sole Arbitrator Shri Karandikar passed his award on 15. 11. 1999 for a sum of Rs. 6,32,320/- with interest thereon at 18% per annum from 21. 04. 1993 till payment. The petitioner thereafter in terms of the Arbitration act 1940, applied to the Court at Ratnagiri for making the award, the Rule of the Court. The Ratnagiri Court on 22. 05. 2000, passed a decree making the award, the Rule of the court. The respondents thereafter on 08. 08. 2000 paid an amount of Rs. 13,80,083/- towards the amount due under the said Award. Under the said Award the actual amount due was rs. 15,77,917/- as per the petitioner. Since the decree was not satisfied fully, the petitioner applied to the Ratnagiri Court to transfer the decree to the Panaji Court, so that the balance of the amount could be recovered by the petitioner by following the procedure as laid down under Order 21 of the Civil Procedure code by attachment and sale of the immoveable properties of the Assistant Engineer, Postal Civil Sub division, Porvorim. The ratnagiri Court passed an order on 25. 07. 2000 transferring the decree to the Panaji Court for execution. The petitioner thereafter, filed an application on 17. 10. 2000 being Special execution Application No. 36/2000/b in Panaji Court for execution of the remaining part of the decree. The respondents herein filed reply on 10. 07. 2001 objecting to the Execution application. The principle ground on which the execution was objected to by the respondents was that the appointment of the arbitrator by the Ratnagiri Court was without jurisdiction in terms of the new Act and therefore, the decree passed by the ratnagiri Court making the award of the Arbitrator the rule of the Court was a nullity.