GOYAL BUITUMINS INDIA Vs. JAIPUR DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) AGGRIEVED by the Order dt. 14.10.2005 passed by the District Judge, Jaipur City, Jaipur, two different petitions, namely, the Civil Miscellaneous Appeal and the Civil Writ Petition have been filed before this Court. Since both the parties are aggrieved by the same Order, both the petitions are being decided by this common judgment.

(2.) THE brief facts of the case are that vide letter dt. 31.01.1991, the Jaipur Development Authority (henceforth to be referred as 'the JDA ', for short) had granted the work of providing and fixing street light on Tonk Road from Gopalpura Junction to Durgapura and upto Jawahar Circle, Jaipur within a period of four months to the Goyal Buitumins India (henceforth to be referred as 'the appellant ', for short). According to the work -order, the work was to begin on 15.02.1991 and was to be completed by 14.06.1991. However, due to certain reasons beyond the control of the appellant; the work could not be completed till 15.10.1993. However, the work was completed to the satisfaction of the JDA. However, because certain differences and dispute did arise between the parties, on 23.08.1995, the appellant sent a notice to the JDA for appointment of an Arbitrator in accordance with Clause -23 of the Agreement. On 23.01.1996, Mr. K.B.L. Seth (retired S.E. of PWD) was appointed as the Sole Arbitrator. However, after Mr. Seth shifted from Jaipur, Mr. Hariom Prakash (Chief Engineer of PWD) was appointed as the Sole Arbitrator vide letter dt. 02.02.2001. Before the learned Arbitrator, the appellant raised seven claims. The JDA filed its reply to the claims. After the pleadings were complete, the Arbitrator framed five issues. After going through the oral and documentary evidence, vide award dt. 02.08.2001, the learned Arbitrator awarded a compensation of Rs. 2,81,840/ - along with 15% interest from 05.05.1995 till 02.08.1995. The interest was calculated as Rs. 2,64,225/ -. He further directed that in case the compensation amount is not paid within a period of three months, the compensation, shall be paid @ 15% interest per annum till date of actual payment or date of decree whichever is earlier. Thus, a total compensation of Rs. 5,54,065/ - was granted to the appellant. While the appellant moved an application for making the said award a rule of the Court, the JDA filed its objection against the said award before the District Judge, Jaipur. After hearing both the parties, vide Order dt. 14.10.2005, the learned District Judge partly allowed the objections. Although, he rejected most of the objections, he reduced the interest from 15% to 9% per annum and made the interest effective from 02.08.2001 the date of the award, instead of from 05.05.1995. Since both the parties were aggrieved by the said order, while the appellant has filed the appeal before this Court, the JDA has filed the writ petition before this Court. During the course of argument in the appeal, Mr. J.M. Saxena, the learned Counsel for the JDA, pointed out that the JDA has filed a writ petition against the same impugned order. Therefore, vide order dt. 18.10.2006, this Court directed that both the appeal and the writ petition be clubbed together. As stated above, since both the cases emanate from the challenge the same impugned order, it is in the interest of justice to decide both the cases by this common judgment.

(3.) ON the other hand, Mr. Arvind Gupta, the learned Counsel for the appellant, has vehemently argued that although Section 85 of the Act of 1996 clearly repeals the Act of 1940, but Sub -section (2) states that, ''notwithstanding such repeal the provisions of the said Act shall apply in relation to the arbitration proceedings which commended before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force ''. Therefore, the pertinent date is ''the date for commencement of arbitration proceedings ''. According to Section 21 of the Act of 1996, ''unless and otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for the dispute to be referred to arbitration is received by the respondent ''. In the present case, the said notice was sent on 23.08.1995, i.e. a date much before the coming into effect of the Act of 1996. Hence, according to Section 85(2), the Act of 1940 would govern the arbitration proceedings.