PRESIDENT OF INDIA Vs. KESAR SINGH

JUDGEMENT

(1.) KESAR Singh who will be desscribed in this order as the Contractor entered into four contracts No. CEW -I6 of 195657 for supply of chorpoys at Jammu, contract No. CWEJ -16 for work on TC at Z station and contract CWEJ -9 of 56, 57, TC at Z station. He tendered for supply of 14438 chorpoys at the rate of Rs 19 alongwith mosquito nets including clumps and gutties on 8 -12 -56. This tender was accepted by the Chief Engineer Western Command on 28 -11 -56 and the supply had to be completed by 31 -12 -57. The contractor was asked to suspend the work by the Engineer in charge vide his No. 8333A/142/E8 under condition No. 6 of IAGW -1815 -Z The work remained suspended for some time. Later on in so called deviation of the previous contract another letter was sent to the Contractor by the Executive Engineer OC. Works Sections, No. 8412/334/E8, 969 Works section dated 21 -3 -58 wherein it was stated that the contractor had supplied 1882 chorpoys with mosquito net frames with gutties and clumps. He was further directed not to manufacture any more chorpoys with mosquito frames, gutties and clumps upon the supplies already made The balance of 12557 charpoys would be supplied without mosquito net frames. The rate for omission of mosquito net frames, gutties and clumps would be 4 33 per set. The contractor was further asked to confirm his agreement to the rate or forward his objections within seven days of that letter.

(2.) NECESSARY amendment was to issue as soon as the rate was agreed to by the contractor. This was replied to by the contractor. This was replied to by the contractor on 30th March, 3rd April 1958 (page 79 of the register). The contractor was prepared to accepted a reducton of Rs. 1.50 as against Rs 4.33 suggested by the Engineer on account of the omission of the mosquito net frames. He received a wireless message to attend the office on 9 -8 -58 and settle the rate amicably. On 22 -5 -58 the contract was cancelled with effect from 29 -5 -58. (Letter on page 92 of the register). A reduction of Rs. 4.49 per set was suggested by the Military authorities (page 95). In reply to this the contractor by means of his letter dated 9th Sept. 58 informed the OC 969 Works Section that he had already submitted the rate of mosquito net frames. The rate was arrived at, agreed to and decided after prolonged discussion with the OC 969 Works and the BSO Mr. Jarath. The question of initiating a new rate did not at all arise. What was to be deducted on account of the omission of the mosquito net frames namely clumps and gutties from the cots supplied by the contractor remained undecided upto the last. The contractor brought a suit for a permanent injunction against the Union of India the CE Western Command, the Commarder Works Engineer. 133 Work Section, the OC 969 Works Section with respect to all the four contracts mentioned above in the court of the Sub -judge Jammu. The relief claimed by the contractor was four -fold: (1) that the defendants be restrained from carrying on any of the works of the contract, (2) that the defendants be restrained from refusing to accept supplies under the said contract, (3) that the defendants be restrained from refusing to make the 90% payments to the plaintiff for the works done and the supplies made and (4) general relief.

(3.) THE defendants appeared in that suit. They prayed that the proceedings in the suit be stayed under S. 34 of the Arbitration Act. The Court by its order dated 16 -8 -58 stayed that suit and allowed the parties to go to arbitration. Later on Mr. M. L. Raheja, Superintending Engineer Engineer -in -chiefs branch, New Delhi was appointed as the sole arbitrator of the dispute between the contractor and the Union of India in terms of the arbitration clause in the agreement, by the Engineer -in -Chief, Army Hqrs. New Delhi, vide his letter dated 29th August 58. An objection was taken by the contractor that as there were four contracts, a single arbitrator could not be appointed. Consequently, Mr. Raheja was appointed an arbitrator for contract No. CEW -16 of 56, 57 for supply of Charpoys at Jammu. The arbitrator held several proceedings in the case in the month of Feburary 1963 and finally gave his award on 19th April 1963. By this award he has directed the contractor Kesar Singh to pay to the Union of India a sum of Rs. 71140 85 and has awarded Rs. 9559 to the contractor against the Union of India, leaving a net balance of Rs. 61581.64 payable by the contractor to the Union of India.