RAJ BROTHERS CALCUTTA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is a contractor by profession who entered into a contract agreement bearing No. CESZ/ MISM/12 of 82-83 for the provision of swimming pool (Olympic size) at Missamari with the opposite party/respondents and petitioner completed the execution of the work and construction of it but some disputes arose between the parties and accordingly as per provisions of contract agreement IAPW 2249, the disputes were referred to arbitration of one Shri S.K. Rao, sole Arbitration but according to the petitioner he was not a competent officer to act as a sole Arbitrator and in that view of the matter, the petitioner filed an application for the removal of the said Arbitrator and restraining him from proceeding of the arbitration and the said application was registered as (ARB) Misc. Case 71/95 and the Court allowed the petitionvide order dated 19-9-1995 and subsequently, Brig TK Mittal, Chief Engineer, was appointed as the sole Arbitrator who entered into reference and passed his Award on 30-9-1999 and the said Arbitrator Brig TK Mittal to his office letter dated 3-11-1999 bearing No. 17456/TKM/102/E8 addressed to the Chief Engineer. Shillong Zone. Spread Eagle Falls, Shillong, forwarded the original Award and connected documents for filing the same in the registry of the District Court, Tezpur, Assam but the said Chief Engineer on the contrary, rather illegally filed a petition under S. 14 of the Arbitration Act, 1940, with a signed copy of the Award in the Court of Asstt. to Deputy Commissioner, Shillong, being Misc. (ARB) Case No. 85 (T) 99 and Court of Asstt. to Deputy Commissioner has issued show cause notice to the parties.

(2.) Mr. S.R. Sen, learned senior counsel for the petitioner argued that by the virtue of the office latter dated 3-11-1999 as in Annexure I to this petition and also the letter of authorisation for filing the award in the District Court at Tezpur and letter addressed to the Court in original on behalf of the Arbitrator, the Chief Engineer, Shillong Zone, Spread Eagle Falls, Shillong, ought to have filed the original award in the Court of the Asstt. District Judge, Sonitpur, Tezpur and not in the Court of the Asstt. to Deputy Commissioner, Shillong, in view of the provisions of law laid down under S. 14 (2) of the Arbitration Act. Referring to a decision of the Apex Court reported in AIR 1981 SC 2075. Mr. Sen, learned senior counsel submitted that no law will come to rescue it as it ousted the jurisdiction of other Courts including the Court of Asstt. to Deputy Commissioner except the court of Asstt. District Judge, Sonitpur, Tezpur, as a reference was made to the Court of the Asstt. District Judge, Sonitpur, pertaining to the eligibility and validity of the appointment of one Arbitrator namely S.K. Rao for the related dispute between the parties and the Court of Asstt. District Judge, Sonitpur, granted injunction order to and in favour of the present petitioner restraining the said Arbitrator to act and decide the dispute but the matter has become infructuous in view of the appointment of a new Arbitrator namely Brig TK Mittal. It is also argued by Mr. Sen that the second agreement was executed at Sonitpur and the work site is also situated at Sonitpur under CWE, Tezpur. As the original award is to be filed before the District Court at Tezpur as per office letter and order of 3-5-1999 issued by the Brig. filing of the signal award in the Court of the Asstt. to Deputy Commissioner by the Chief Engineer, Shillong Zone, Spread Eagle Falls, cannot be entertained as the Asstt. to Deputy Commissioner has no jurisdiction to entertain it.

(3.) At the hearing, Mr. S.C. Shyam, learned Addl. CGSC for the respondents submitted, that the Chief Engineer concerned has jurisdiction and authority to file the signed award in the Court of the Asstt. to Deputy Commissioner in view of the provisions of law laid down under S. 14, 34 (1) of the Arbitration Act and, apart from it, the original agreement was executed between the parties at Shillong and as such, the Asstt. to Deputy Commissioner has ample jurisdiction to decide the matter and there is no illegality or infirmity in filing the said signed award in the Court of Asstt. to Deputy Commissioner at Shillong. Mr. Shyam, learned Addl. SGSC also submitted that the signed award was already filed by the Chief Engineer concerned who is competent to do so in the Court of the Asstt. to Deputy Commissioner earlier on 5-11-1999 before the office letter dated 3-11-1999 as in Annexure I issued by Brig TK Mittal was received by the Chief Engineer concerned and the Chief Engineer concerned received the said letter of 3-11-1999 only on 15-11-1999. Mr. Shyam also relied upon the decision of the Apex Court reported in AIR 1981 SC 2075 and contended that in that case, the Apex Court held that the award was to be submitted before the Supreme Court itself as the Supreme Court had appointed the Arbitrator but, in the instant case the Arbitrator was appointed by the Government and he was not appointed by the Court and, as such, there shall be no illegality or infirmity in filing the award at Shillong Court having jurisdiction to entertain it as the original agreement was entered amongst the parties at Shillong for the said work, and, as such, the facts of the present case is quite different from that of the facts of the case involved in the Apex Court.