SURESH CHANDRA PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is an application under Sections 7 and 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act). The petitioner is a contractor to whom the works connected with the construction of H. L. Bridge over river Tikera were entrusted. The date of agreement is not indicated, but it must have been some time at the end of the year 1978 or the beginning of the year 1979. From the copy of the agreement, Annexure -1, it is not possible to discover the date thereof. But, it is pleaded in the petition that the date of commencement of the work was 25.1.1979, and the date of completion was 25.4.1979. Thus, the contract period was three months. According to the petitioner, he applied for extension of time up to 31.3.1980, but the same was not acceded to by the opposite parties. Though amounts had been paid towards the bills submitted by the petitioner, the final payment has not been made to him. The petitioner had submitted a bill along with the letter dated 19.10.1979 and the same had been received by opposite party No. 1 on 22.10.1979. The amount was not paid. After about 20 years, the petitioner sent a final demand notice enumerating the claims and demanding payment within 15 days of receipt of the notice. There was no response from the opposite parties. In that situation, the petitioner had sent a notice through his Advocate invoking Clause 11 of the contract. The Superintending Engineer of the Circle concerned did not act as envisaged in Clause 11 of the contract. Hence, the petitioner approached this Court under Sections 7 and 11 of the Act. The present petition was filed on 19.4.2000.

(2.) THE petitioner pleads that there was an arbitration clause wherein it has been specified that in case of a dispute, a reference will be made to the Arbitration Tribunal constituted by the Arbitration (Orissa Amendment) Act, 1982 (Orissa Act 3 of 1983). But, since the Arbitration Act, 1940 to which an amendment had been made by Orissa Act 3 of 1983, had been repealed by the Arbitration and conciliation Act, 1996, the Tribunal constituted by the Orissa Act, Act 3 of 1983, even though continues to exist to deal with pending matters, has been stripped of its future jurisdiction. Hence, the petitioner was entitled to have an Arbitrator appointed under Section 11 of the Act of 1996. It may be noted here that the arbitration clause as amended provides that any dispute arising out of the contract shall be referred to the Arbitration Tribunal, Bhubaneswar constituted by the State Government, which shall consist of three members. It also sets out the qualifications of the members.

(3.) IN his rejoinder, the petitioner reiterated that the dispute arose out of the agreement executed in the year 1978 -79, and that the opposite parties had not prepared the final bill and had not settled the claim of the petitioner. The petitioner had executed additional work. It was not correct to say that he had not attended the office of the opposite parties. In response to his letter in that behalf, opposite party No. 1 had called for the relevant files. The petitioner had been requesting the authorities all these years to act. The petitioner had hoped that the authorities would disburse the amounts to him. The Arbitration Act, 1940 was not applicable in view of Section 85 (1) of the Arbitration and Conciliation Act, 1996. The petitioner was entitled to move this Court under Sections 7 and 11 of the Act as the opposite parties have not paid the dues of the petitioner towards his final bill. The petitioner was, therefore, entitled to relief.