UNION OF INDIA Vs. NALINI RANJAN GUHA

JUDGEMENT

(1.) This is an application under section 34 of Indian Arbitration Act for stay of the suit No. 4307 of 1950 (Nalini Ranjan Guha Vs. Union of India) . The matter arises in this way : On the 1st of May, 1945, the respondent to this application had entered into a contract for the construction of hutments for 1,500 labourers at Ganoodih with the Governor-General of India in Council, being contract No. 18/SEB. In the said contract particulars of the constructions which had to be done by the contractor were set out and they contained 10 items. There was an arbitration clause in the said contract which runs as follows :

(2.) Under clause 29 of the said agreement it was provided that the expression "works" or "work" was used in these conditions shall unless there be something either in the subject or context repugnant to such construction be construed and taken to mean the works by or by virtue of the contract contracted to be executed whether temporary or permanent and whether original, altered, substituted or added. Under clause 12 of the said contract it was provided that the Engineer-in-charge shall have power to make any alterations in or omissions from, additions to or substitution for the original specifications, drawings, designs and instruction that may appear to him to be necessary or advisable during the progress of the work and the contractor shall be bound to carry out the work in accordance with any instructions which may be given to him in writing signed by the Engineer-in-charge and such alterations, omissions, additions or substitutions shall not invalidate the contract.

(3.) The plaintiff in suit No. 4307 of 1950 which is sought to be stayed on this application has placed his claim on the following basis : In paragraphs 1 and 2 of the plaint he has referred to the contract and has pleaded that in terms of the said contract the plaintiff commenced the construction of the works and duly completed the same in Oct., 1944. In para 3 of the plaint he has alleged that during the progress of the main work the plaintiff was instructed by the Governor General in Council and/or his servants and agents to execute divers extra works within the main contract as also works beyond and distinct from the work and or items mentioned in the said contract. Particulars of all such works have been set out in Annexure A to the plaint. In the said annexure the plaintiff has placed all extra works which he had to do in two groups, namely, (1) Additional works within the main contract works and (2) Additional works beyond and distinct from the main works. The substantial claim of the plaintiff in the suit relate to the second ground, namely, the additional works beyond and distinct from the main works and Rs. 42,855 has been claimed on that basis. In para. 11 of the plaint the plaintiff has also based his claim on the ground of fraud on the part of the defendant and or its agents in including the plaintiff to commence to execute such works. The plaintiff has set out the particulars of such fraud in the sub-paragraphs of the said paragraph 11 and in para. 12 the plaintiff has alleged that in the premises the defendant has been guilty of fraud and is liable to pay damages for such fraudulent representation and inducement.