ASHOKA BUILDCON PVTLTD Vs. VADILAL DAIRY INTERNATIONAL LTD

JUDGEMENT

(1.) The Appeal is directed against the rejection of the application filed by the present appellant before the Civil Judge, Senior Division, Nashik, for appointment of an arbitrator to settle certain disputes between the appellant and the respondent arising out of the contract for construction.

(2.) Admitted facts are that the present respondent-defendant is a Public Limited Company. Previously it was known as "M/s. Super Milk Makers Pvt. Ltd." M/s. Super Milk Makers Pvt. Ltd. Issued tender on 28-4-1993 for the civil work for the construction of a factory building and other works at Integrated Dairy Project on a plot at MIDC Industrial Area at Sinnar, District Nashik. The plaintiff/appellant submitted the tender on 28-4-1993 and it was accepted on 9-6-1993. The work order was actually issued on 25-6-1993 and as per the terms of the contract, the work was to be completed within a period of 15 months from the date of work order. The appellant started the work as per the contract. It appears that 21 R.A. Bills were cleared and dispute arose thereafter. Admittedly, the work was not completed within the stipulated period of 15 months and on 15-10-1994, the present respondent, who had succeeded M/s. Super Milk Makers Pvt. Ltd., issued a letter terminating the contract and the appellant was directed to stop the work. After that, R.A. Bill No. 23 was also not cleared. On 30-3-1995, the appellant addressed a letter to the respondent with a copy to the architects, requesting the architects to certify the claims of the appellant for payment immediately and also to ensure that the claim amounts were paid to the appellant by the defendant within 15 days from the date of notice. In the said claim, the plaintiff had called upon the defendant and/or their architects to certify, settle and pay all the claims. However, by letter dated 24-4-1995, the respondent rejected/refused to pay the claims of the appellant/plaintiff. According to the appellant, disputes and differences arose between the appellant and the respondent after refusal of the respondent to clear the bills. According to the appellant, when such disputes arose, they could be referred to the sole arbitrator to be nominated by the Architect, namely. Mr. Praveen J. Parekh of M/s. J. P. Parekh & Sons, Architects, as per clause 37 of the General Conditions of the Contract. Therefore, on 2-5-1995, the appellant addressed a letter to the Architect to nominate the sole arbitrator and to refer the disputes to the said arbitrator. Similar notice was issued to the respondent on 15-5-1995. However, the Architects by reply dated 15-5-1995 rejected the request of the appellant to refer the disputes to arbitration. It was contended by the Architects that all the disputes would fall within the "excepted" items as per clause 19 of the Special Conditions of Contract read with clause 36 of the General Conditions of Contract, under which the decision of the Architect would be final and binding on the parties.

(3.) Therefore, the appellant filed Suit No. 288 of 1995 in the Court of Civil Judge, Senior Division, Nashik under section 20 of the Arbitration Act, 1940 for appointment of the arbitrator and to refer the disputes to the arbitrator. The suit/application filed by the present appellant was contested by the respondent on the same grounds as were given by the Architects in their letter dated 14-6-1995. The Civil Judge, Senior Division, Nashik, passed the impugned order dated 29-8-2002 and dismissed the application holding that the disputes fall within clause 19 of the Special Conditions of the Contract and within exclusive jurisdiction of the Architect. Hence, this Appeal.