GENERAL MANAGER NF RAILWAY MALIGAON Vs. NASIM KHAN

JUDGEMENT

(1.) learned senior counsel appearing for the NF Railways and Mr. C. Baruah, learned senior counsel assisted by Mr. PJ Saikia for the respondent.

(2.) The facts, in brief, are that the respondent Md Nasim Khan, herein after referred as the contractor for the purpose of convenience, entered into a contract work with the appellant-NF Railway, herein after referred as the Railways, for extension of Carriage and Wagon Department. There was a written agreement in between the parties executed on 19.2.81. The work, however, could not be completed within the due date or extended date. There was allegations and counter allegations as regards the causes for non fulfilment of the contract work and we do not propose to enter into the same at this stage. The contractor, thereafter, filed Misc (Arb) Case No.7 of 1988 under section 8 (2) read with section 20 (3) of the Arbitration Act and the Arbitrator was appointed by the Court. The said Arbitrator Mr. Guna Gogoi, thereafter, gave his award and the said award was made Rule of the Court vide the impugned order dated 13.3.1997 in MS No.14 of 1997. The appellant- Railways have challenged the said order in this appeal.

(3.) The learned counsel for the Railways has submitted that for non completion of the contract work, the contract work was determined and thereafter the work was measured by the Railways with notice to the contractor, but in spite of notices, the contractor did not attend the measurement. The contractor was thereafter asked to sign final bill vide letter dated 20.8/9.83. The above letter shows that 30.9.83 was fixed for witnessing the measurement and signing of final bill. However, the contractor refused to attend the same. Thereafter, the final bill was prepared and the contractor had knowledge and information about the same. It is submitted that when the final bill was prepared, nothing had been left for the Arbitrator as per the arbitration clause and hence, the appointment of the Arbitrator was not in accordance with law.