EXECUTIVE ENGINEER Vs. BICHITRANANDA BEHERA

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 28-1-2005 passed by the learned District Judge, koraput at Jeypore in Arbitration Petition no. 2 of 2004 restraining the appellants from terminating the work order issued in favour of the respondents and also restraining the respondent No. 2 from tampering with the structure made, in an application under section 9 of the Arbitration and Conciliation Act, 1996.

(2.) THE facts leading to filing of the application under Section 9 of the Act are that the respondent No. 1 had been awarded the work of construction of a cement structure of 30 feet height near the Sabari Lake complex at Damanjodi and the structure was to be of a Dinosaur. According to the said respondent No. 1 the officer-in-charge of the work changed the proposed structure with regard to its height and directed the respondent no. 1 to increase height of the structure up to 58 feet on the assurance that the respondent No. 1 shall be paid escalation for the additional work. In terms of the work order, the respondent No. 1 was paid Rs. 27,375/ -. After construction of 2/3rd of the structure, since no sanction was made for supply of iron rod and cement, the respondent No. 1 was forced to stop the work and submitted an application for approval of additional payment of Rs. 37,000/ -. Though the appellants assured the respondent No. 1 that payment would be made after completion of the work, suddenly on 8-7-2004 the work was terminated and balance work was given to the respondent No. 2 for completion. According to the respondent No. 1 he is to get Rs. 45,000/- from the appellants and without payment of the said amount and finalising the bills, the work has been illegally terminated. On the basis of such allegation, an application under Section 9 of the act was filed for the relief stated earlier and the Court also restrained the appellants from terminating the contract and/or allowing the respondent No. 2 from completing the balance work.

(3.) MISS Ratho, learned counsel appear-ing for the appellants challenges the impugned order on the ground that the basic requirements for grant of injunction having not been fulfilled, the Court below could not have allowed the application of the respondent No. 1. According to the learned counsel the contract was for completion of the structure within a specified time. Respondent No. 1 failed to complete the structure in time and as a matter of fact delayed the construction unnecessarily even though running bills had already been paid to him. In view of the conduct of the respondent No. 1, the appellants had no other option except terminating the contract and handing over balance work to the respondent No. 2. Learned counsel further submitted that the claim of the respondent No. 1 as disclosed in the application under Section 9 of the Act is Rs. 45,000/ -. If the respondent No. 1 invokes arbitration clause and raises its claims, same can be decided in the arbitral proceeding by an Arbitrator. For non-payment of any amount as alleged, no injunction order can be passed thereby prohibiting the appellants from completing the work. It was further contended by the learned counsel that though an order of injunction was passed in January, 2005, till now the respondent No. 1 has not invoked arbitration clause for initiation of arbitral proceeding. Learned counsel relied upon some decisions in support of her contention. Learned counsel appearing for the respondent no. 1 submitted that if the balance work is allowed to be completed, it will be difficult to find out to what extent the respondent No. 1 had worked and accordingly even if the respondent No. 1 invokes arbitration clause, the Arbitrator shall never been in a position to known the extent of work done by the respondent No. 1 and accordingly it will be difficult on the part of the Arbitrator to pass an award.