JAMADAR SINGH Vs. ENGINEER IN CHIEF

JUDGEMENT

(1.) In this application filed under S. 11(6) of the Arbitration and Conciliation Act (hereinafter referred to as 'the Act'), the petitioner prays for revocation of the authority of the respondent No. 3 being the appointed Arbitrator and for appointment of an Arbitrator for reference of the disputes and differences to him with a direction to make and publish the award.

(2.) The petitioner's case is that he was awarded three contracts for earth work vide agreement Nos. 44F2 of 1986-87, 42F2 of 1986-87 in Bagodar Branch Canal and 3F2 of 1986-87 of Right Bank Canal. The estimated cost of the above works were Rs. 3,77,460/-, Rs. 4,17,907.72 paise and Rs. 4,78,417/- respectively. The petitioner's case is that with respect to the agreement No. 44F2 of 1986-87 the work to the tune of Rs. 2,33,083/- was completed by the petitioner for which the bill was prepared after taking measurement on 19-7-90 by the competent and authorised officers. The bill so prepared was duly checked and passed but payment has not been made to the petitioner. Rather the work was stopped as per unilateral decision of the Department and as such, the execution of the work could not be proceeded further. It is stated that as against the agreement No. 44F2 some extra item of work was got done by the petitioner at the request of the respondents as per the recommendation of the officers. So far agreement No. 44F2 of 1986-87 is concerned the petitioner's case is that the total work amounting to Rupees 1,30,681/- was completed by him as per the terms of the agreement but only a sum of Rs. 47,544/- was paid and the balance amount is still lying due since the year 1990. With regard to agreement No. 3F2 of 1986-87 it is stated that the work was completed well within stipulated period amounting to Rs. 4,92,877/- and the petitioner was already paid a sum of Rs. 4,54,123/- against the bill but a sum of Rs. 38,754/- is still lying due. The petitioner stated that he filed a representation on 1-12-90 and 6-2-91 for payment of his bill but despite several correspondences made between the respondents in the year 1991 the amount could not be paid. The petitioner filed several representations in 1991 and ultimately filed a writ application in 1997 being CWJC No. 3195 of 1997 (R) for payment of the entire dues. The said writ application was dismissed on 2-11-98 on the ground that contract being a non-statutory one and on account of delay. The petitioner then filed second writ application for the extra items of work being CWJC No. 3198/97(R) but the same was ultimately withdrawn. It is contended that after withdrawal of the writ application the petitioner served Advocate's notice on all the respondents ventilating his legal and genuine grievances but nothing was done at the instance of the respondents. The petitioner, therefore, claims that dispute and differences exists which needs adjudication through arbitration under the provisions of the aforesaid Act.

(3.) A counter-affidavit has been filed in this case denying and disputing the claim of the petitioner. It is stated that there is no dispute existed between the parties and, therefore, the question of reference does not arise. Moreover, it is merely a money claim for which the petitioner has already moved this Court twice and both the writ applications were dismissed and now he is trying to take recourse of the said Act. It is further stated in the counter-affidavit that the work was not stopped as per the unilateral decision of the Department. It is stated that the work carried out by the petitioner up to 1990-91 instead of completing it in 1987-88. The work was still incomplete till 19-7-90. The bill submitted by the petitioner was passed by the authorities for Rs. 2,33,083 but the same could not be paid for want of fund.