STATE OF JHARKHAND Vs. B.M.S. ASSOCIATES

JUDGEMENT

(1.) The present writ petition has been preferred for quashing the order dtd. 15/2/2019 passed by the Civil Judge (Senior Division-II), Seraikella in Money Suit No.07 of 2010(S), whereby the learned court below has appointed Vijay Kumar Srivastava, retired In-charge Chief Engineer, Rural Works Department, Government of Jharkhand as an arbitrator by recalling the earlier order dtd. 20/1/2018 whereby Late Anil Kumar, retired Chief Engineer, Government of Jharkhand was appointed as sole Arbitrator.

(2.) The factual background of the case, as stated in the writ petition, is that the respondent filed a suit being Money Suit No.07 of 2010 in the Court of Sub-Judge, Seraikella against the petitioners seeking a decree of Rs.56,17,093.00, as detailed in schedule A, B and C of the plaint and also for cost of the suit. The petitioners filed an application before the said Court on 12/10/2012 through Additional Government Pleader (AGP) for referring the matter to an arbitrator under Clause 23 of the conditions of contract of the agreement, whereupon the court below vide order dtd. 22/4/2015 appointed Superintending Engineer, Subarnrekha Canal Circle, Jamshedpur (petitioner no.3/defendant no.3) as an arbitrator. The respondent filed a petition on 24/11/2017 under Sec. 151 CPC for modification of the order dtd. 22/4/2015, stating that after insertion of a new provision i.e. Sec. 12(5) by way of amendment in the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as 'the Act, 1996'), which had come into force with effect from 23/10/2015, the Superintending Engineer, Subarnrekha Project could not have acted as an arbitrator. Subsequently, the petitioners filed rejoinder to the petition filed by the respondent on 12/1/2018 through the Government Pleader (GP), praying, inter alia, to recall the order dtd. 22/4/2015 and to appoint any other person as neutral arbitrator for which the petitioner had no objection. Thereafter, the petitioners and the respondent filed a joint petition before the court below providing name of an arbitrator to decide the dispute, whereupon the court below vide order dtd. 20/1/2018 appointed one Anil Kumar, retired Chief Engineer, Government of Jharkhand as an arbitrator. In the meantime, the petitioners filed the present writ petition on 16/8/2018 with a prayer to quash the order dtd. 20/1/2018 passed by the Civil Judge (Senior Division-II), Seraikella. The petitioners also filed an application under Sec. 16 of the Act, 1996 before the Arbitrator, raising objection to his jurisdiction, which was rejected vide order dtd. 10/8/2018. The said arbitrator thereafter died on 11/10/2018. The respondent then filed an application under Sec. 42 of the Act, 1996 for appointment of a new arbitrator. The said application was allowed by the court below vide order dtd. 15/2/2019, appointing one Vijay Kumar Srivastav, retired In-charge Chief Engineer, Rural Works Department, Government of Jharkhand as new arbitrator. Thereafter, the petitioners filed amended writ petition praying, inter alia, to quash of the order dtd. 15/2/2019.

(3.) Mr. Sachin Kumar, learned A.A.G.II, appearing on behalf of the petitioners submits that on conjoint reading of Clause 20 (engineer's decision) of the General Conditions of Contract (GCC), as mentioned in the tender document relating to residual earth work from k.m. 9.0236 to k.m. 9.144 of Subarnrekha Left Main Canal and Clause 23 of the Conditions of Contract as mentioned in Agreement no.1 F2 of 19992000 relating to the aforesaid work, it would appear that the Superintending Engineer has been vested with certain powers as an 'inhouse procedure' to resolve the dispute relating to matters of technical consideration in course of execution of the contract. Clause 20 of GCC further makes it clear that the Superintending Engineer's final authority does not include decisions regarding sum due to or from the contractor or for extension of time. It is submitted that by no stretch of imagination, the said Clause 23 can be said to be an agreement clause of arbitration to arbitrate between the parties. It is also submitted that for any arbitration agreement to be binding in nature upon the parties, the same must be in writing and the parties should have specifically agreed to settle their disputes by arbitration. An arbitration agreement cannot be interfered by implication. It is further submitted that during pendency of the present writ petition, a notice under Sec. 34(5) of the Act, 1996 has been served to the respondent as precautionary measures and as such the same may not be taken into consideration by this Court for deciding the present writ petition.