STATE OF ORISSA Vs. GOBIND CHOUDHURY AND SONS

JUDGEMENT

(1.) THIS application in revision is directed against an order of the Subordinate judge, Berhampur allowing an application under Sections 8 (2), 11 (1) and 12 (2)of the Arbitration Act filed by opposite party praying to refer a certain dispute between the parties to the arbitration of Sri S. K. Palit, retired Chief Engineer of the government of Orissa. The opposite party who is a contractor had been entrusted by Government with the construction of a bridge over the river Rushikulya near purushottampur in Ganjam district. He completed the construction of the bridge proper minus the super-structure. As certain disputes arose between the parties regarding rates of payment, the matter was referred to the arbitration of Shri S. K. Palit, a retired Chief Engineer of the Government of Orissa who, in due course, passed an award. It is the" common case of both the parties that in the award so passed, Shri Palit not only gave his decision in regard to rates for the work already completed but also indicated the rates at which the Contractor should be paid for the superstructure. When that award was sought to be enforced, the State of Orissa contended inter alia that the award of the Arbitrator in so far as it related to the super-structure was outside the scope of the reference. It is the case of both the parties that the matter relating to that award is pending decision in this Court in first Appeal No. 140 of 1987.

(2.) MEANWHILE, at a conference held at the Secretariat which was attended amongst others by the Secretary, Works Department, the Chief Engineer, Roads and Buildings and the opposite party, it was agreed that the construction of the super-structure of the Rushikulya bridge at Purshottampur should be completed by the opposite party for which he should execute a fresh agreement. Accordingly, the opposite party undertook and completed the work. As disputes arose between the parties regarding payment for this work, the opposite party served a notice dated 2nd march 1968 on the Executive Engineer, Roads and Buildings Berhampur Division, requesting him to refer the dispute to the arbitration of Shri S. K. Palit, and as obviously this was not complied with, he filed the application under Sections 8 (2), 11 (1) and 12 (2) of the Arbitration Act in the Court of the Subordinate Judge, berhampur. That application was contested by the State Government on the main ground that as the present dispute is connected with the dispute which is the subject matter of f. A. No. 140 of 1967 pending in this Court, the application is not maintainable. The learned Subordinate Judge held that the previous dispute which is the subject matter of F. A. No. 140 of 1967 arose out of an agreement between the parties for construction of the bridge minus the superstructure whereas, the present matter arises out of the subsequent agreement for construction of the super-structure of the bridge and that as such the previous award of 1965 which is the subject matter of F. A, 140/67 has nothing to do with the present dispute. In this view of the matter, he allowed the application and directed the parties to file a panel of names for consideration of the Court regarding appointment of an arbitrator. It is against this order, that the present revision application has been filed.

(3.) IT is clear from the letter dated 10-8-66 addressed by the opposite party to the secretary, Works Department, Government of Orissa, which is on record, that the work of construction of the super-structure over the bridge is a work independent of the construction of the bridge minus the super-structure, although the contractor for both the works has been the same person. The previous award passed by Sri S. K. Palit has not been produced in this case and it is therefore not known under what circumstances Sri Palit in the previous award, had given certain directions regarding the rates at which payment should be made for the superstructure which admittedly had not been constructed by the time the award was given. During the course of the argument in this case, Sri R. N. Misra appearing for the opposite party stated that he on his part is prepared to abide by the award already given by Sri Palit regarding the super-structure, if it is the contention of the State that both the items of work are inter-connected and that what Shri Palit has decided about the super-structure is binding on the parties. The learned Counsel appearing for the petitioner was not however agreeable to such a course. Shri Misra also indicated that if the present application for arbitration regarding the super-structure is allowed, he would not dispute the contention of the State in the First appeal that Sri Palit's award regarding superstructure may be ignored. Apart from the fact that the stand which the State took in the Court below, that the present arbitration proceeding would not be maintainable in view of Sri Palit's award in the previous dispute, is inconsistent with the stand taken by the State in the previous proceeding that the award so far as it relates to the super-structure is beyond the scope of the previous reference. I agree with the finding of the learned Subordinate Judge, having regard to the correspondence on record that the work relating to the superstructure is distinct and separate from the work of the construction of the bridge minus the superstructure.