BUILDERS ASSOCIATES Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) THIS is an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 seeking constitution of an Arbitral Tribunal for resolution of the dispute between the parties.

(2.) PETITIONER claims to be an establishment engaged in work of Construction or other Civil engineering works. Respondent the Executive Engineer is said to have issued a notice inviting offer for construction of 30 bedded hospital and staff quarters at Prabhat Pattan, District Betul. The total cost of the work was Rs. 103.87 Lacs. Petitioner participated in the process of tender. The tender of the petitioner was accepted and work order was issued and accordingly work was allotted to the petitioner. Annexure A/1, A/2 and A/3 are the documents evidencing the aforesaid facts. It may be taken note of that Clause 29 of the tender documents which form part of the agreement contemplates an arbitration clause and it stipulates that if any dispute exists it shall be first referred to the Sub Engineer, thereafter an appeal has to be filed before the Chief Engineer and on rejection of the same the matter goes to the arbitration board. However, now after constitution of M.P. State Arbitration Tribunal a statutory Tribunal, the functioning of the arbitration Board is discharged by the said Tribunal and in cases of works contract the disputes are referred to the aforesaid Tribunal by virtue of the provisions as are contained in the M.P. Madhyastam Adhiniyam, 1983. Be it as it may be, it is the case of the petitioner that after the work was entrusted to the petitioner the respondents committed delay in providing the lay out plan for the hospital and the staff quarters and the land was not made available, as a result work could not be commenced in time. It is seen that due to various acts of commission and omission on the part of the authorities concerned, certain disputes have arisen and therefore, petitioner raised a claim before the Superintending Engineer which was rejected. The appeal filed by the Chief Engineer has also met with the same fate and therefore, this application has been filed.

(3.) SHRI Shekhar Sharma, learned counsel for the petitioner refuted the aforesaid and pointed out that a dispute can be referred to the M.P. State Arbitration Tribunal, only if three conditions as are stipulated in Section 2(1)(d) of the Adhiniyam of 1983 are fulfilled. It is stated that one of the condition stipulated is that the claim should be for an ascerted money valued at Rs.50,000/- or more. It is stated that in the present case as the dispute is with regard to an unascerted money, the matter cannot be referred to the Arbitration Tribunal and therefore, this application is maintainable. In support of the aforesaid contention, Shri Shekhar Sharma invites my attention to certain judgments rendered by Division Bench of this Court in Civil Revision No.136/98 decided on 24.6.96 M/s Progressive Construction Pvt. Ltd. Vs. M.P.E.B. Jabalpur and Miscellaneous Appeal No.1031/99 M.P. Housing Board Vs. Satish Kumar Raizada to contend that if the amount in question is not ascertained, the jurisdiction of the Tribunal under the Adhiniyam of 1983 is not attracted.