BILDRITE CONSTRUCTION CO Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is an application under section 20 of the Jammu and Kashmir Arbitration Act with a prayer that the arbitration agreement between the parties may be ordered to be filed in the court and an arbitrator ordered to be appointed with directions to enter into he reference and settle the dispute between the parties by an award.

(2.) INTERALIA the following averments have been made in the application : "The plaintiff is a Partnership concern which carries out civil engineering contracts in different parts of the country. It has its head office in Calcutta and a branch office in Srinagar. Shri Bimal Dutta holds a general power of attorney on behalf of the plaintiff and in that capacity is authorised to file the present application for and on behalf of the applicant company. That the construction of Forebay -cum -Spillway in Lower Jehlum Hydel Project Baramulla of which defendant No, (2) is the Chief Engineer was allotted to the applicant firm in the year 1974. Major part of the work had been completed by the applicants by August, 1975. That during the night intervening the 27th and 28th of August, 1975 there was a cloud burst accompanied by heavy rain in Bimyar Nullah Catchment area, as a result of which the nullah changed its course carving out a new channel for itself nearly 25 feet deep and 100 feet long through the canal below the Bimyar super passage and then into the forebay depositing huge quantity of debris brought by the flowing torrents of water. That considerable damage/loss was caused to the material on spot, machineries etc belonging to the applicants/plaintiff due to the flood and cloud burst as sated in the proceeding para involving extra financial strain on the applicants to complete their allotted work in time. That at the request of the department the clearance of the deposited slush and debris from the floor of the Forebay was done by the plaintiff as an additional work after the corss -section of deposits had been measured by the Department of which defendant No. 2 is the Chief Engineer, jointly with the plaintiff " That at the request of the department the plaintiff also supplied 4200 empty bags of cement and 1020 labourers for diverting the Nullah over the partly constructed superpassage. That an agreement in writing dated 2 -6 -1973 entered into between the parties provides that any dispute between the parties during and after the construction of the work shall be referred to sole arbitrator to be appointed by mutual agreement of the parties.

(3.) THE respondents have submitted their objections interalia on the following grounds : - That the present application is not maintainable under law No such dispute exists which can be referred to the arbitrator. The clause 4 51 of the agreement lays down as under : CLAUSE NO. 4.51 -FORCE MAJEAURE CLAUSE: - The completion schedule is subject to the operation of the FORCE MAJEURE clause which for the purpose of this contract is defined as acts of God, War, civil commotion, sabbotage, Acts of Legislature, fires, floods, earth quakes, explosions or other catestrophies, epidemic quarantine, restrictions, strikes and other serious labour trouble, embargoes or other transportations delay as are beyond the control of the contractor for which only extension in time considered reasonable by the department shall be granted and the contractor will have no claim for compensation or increase in rates etc. or charges for resorting damages to the work plant or materials."