CENTRAL COALFIELDS LIMITED RANCHI Vs. DUTTA CONSTRUCTION

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and award dated 23.2.1993 passed by the then Subordinate Judge, 1st Court, Ranchi, in Miscellaneous Case No. 4 of 1989.

(2.) THE respondent entered into a contract with the appellant for construction of Intake Well -cum -Raw Water Pump House at Jarangdih. The work order was issued to the respondent on 16.10.1969. Although the work order for the approved work comprised in the agreement was executed between the parties on 25.10.1969, the work order had already been issued to the respondent on 16.10.1969. The respondent started the execution of the work. However, some dispute arose between the parties subsequently with respect to the shifting of sites and other modification in its design and the nature of the work to be undertaken as per the agreement. The work site was originally at the river bed of Damodar but afterwards it was changed to a place on the river bank. According to the respondent, on this account of shifting of place and modification in the designs, he had to execute the work at a height of 41 foot from the ground level instead of 30 foot. The claim of the respondent was that he wanted to modify/increase the price of the work and for settlement and negotiation over the same, but when no settlement had been arrived at, the respondent filed an application under Sec. 20 read with Sec. 8 of the Arbitration Act (the Act) before the Subordinate Judge, 1st Court, Ranchi, for appointment of an arbitrator as per Clause (9) of the agreement which runs as follow: If any dispute, question or controversy, the settlement of which is not herein specifically provided for, shall any time arise between the National Coal Development Corporation Limited and the contractor/contractors, touching this agreement or any clause of anything herein contained on the construction thereof or any matter connected with this agreement or the operation of the same or the rights or duties or liabilities of either party, then and in every such case, either party, shall forthwith give to the other notice of such difference and such dispute or difference shall be referred to an arbitrator nominated by the Managing Director of the National Coal Development Corporation Limited and the award of such arbitrator shall be final and binding on the parties. Progress of the work shall not be suspended or delayed on account of the reference of any dispute or difference to arbitration under this clause.

(3.) ACCORDING to the respondent, when on notice also, the appellant did not abide by the terms of the agreement for appointment of an arbitrator, then a petition was filed for appointment of an arbitrator as contemplated under Sec. 20/8 of the Act. Against that petition, the appellant filed written statement and raised objections. According to the appellant, the claims of the plaintiff -respondent were inadmissible under proviso to Clause 3 of the General terms and conditions and had not been made in the manner and within the time prescribed by the agreement and, as such, the claim was barred and not maintainable. The nature of the objections in essence was for the time being the essence of contract, work had to be completed within a period of 12 months, and, therefore, the plaintiff -respondent was not entitled to any extra claims as made by him. It was also contended that the claims of the plaintiff -respondent being barred by limitation had already been repudiated and, as such, there was no scope for appointment of arbitrator. The learned Sub -Judge after hearing the parties, allowed the petition and appointed the arbitrator to settle the difference which had arisen between the parties. Against that order, miscellaneous appeal was filed before this Court being M.A. No. 7 of 1976 (R). The repudiation of claim and the point of limitation as raised had been turned down by this Court also and held that the order of the Sub -Judge referring the difference which comes within the purview of the arbitration clause of the agreement had rightly been referred to the arbitrator. Then both the parties submitted to the jurisdiction of the arbitrator and the sole arbitrator Sri. W. Dasgupta, Chief Design Engineer (Civil) Mecon India submitted his award and the same was filed in the Court for making a rule of the Court. The objection was filed by the appellant -Central Coalfields Limited under Sec. 30 read with Sec. 33 of the Act. The said objection has been registered as Miscellaneous Case No. 4 of 1989. The respondent also filed rejoinder to the objection raised.