PUNJAB STATE Vs. SAT RAM

JUDGEMENT

(1.) The applicant, State of Punjab, entered into a contract with the respondent, Sat Ram, to carry out certain work, and after the execution of the work the respondent made a claim of Rs. 1,400/- against the applicant. There was a counter-claim by the applicant in the amount of Rs. 639/3. The claim and the counter-claim arose out of the dispute arising out of the same contract. The arbitrator made his award on February 6, 1961, dismissing the claim of the respondent, but saying nothing about the counter-claim of the applicant.

(2.) Afterwards the applicant made an application under Section 8 of the Arbitration Act, 1940 (Act 10 of 1940), for the appointment of a new arbitrator to arbitrate upon its counter-claim, and that application has been dismissed by the learned trial Judge under his order of March 12, 1964, on the ground that as the arbitrator left the counter-claim of the applicant undetermined, the case falls under Section 16(1)(a) of Act 10 of 1940, with the result that the only course open to the applicant was to approach the Court against the award under that section. He is of the opinion that no fresh application for appointment of an arbitrator under Section 8 of that Act lies.

(3.) It is obvious that if there was a claim before the arbitrator by the respondent and there was a counter-claim by the applicant, which arose out of a dispute concerning the same contract, then, if the arbitrator left undetermined the counter-claim of the applicant, the proper thing was to have recourse to Section 16 of Act 10 of 1940. But the learned counsel for the applicant points out that on the claim of the respondent award was given by the arbitrator on February 6, 1961, while the counter-claim was made by the State on July 10, 1962, which counter-claim was then filed by a separate order. The learned counsel urges that to a situation like this Section 16 of Act 10 of 1940 has no application and in this I must agree with him. But the applicant fails on another ground that when the dispute arising out of the contract came before the arbitrator on the claim of the respondent and the applicant did not make any counter-claim, it cannot subsequently make any claim arising out of the same dispute, and it not having made the claim at the proper time, it must be taken that there was no legal claim that it had against the respondent which could be urged before the arbitrator. At the time of the first arbitration, or rather the only arbitration, the whole dispute about the contract was before the arbitrator, and it was not open to the applicant to withhold a part of the dispute for subsequent or second arbitration. It not having made the counter-claim at the time of the arbitration, it is not estopped from making the same claim by a fresh application. This revision application is dismissed with costs, counsel's-fee being Rs. 32/-.