NATIONAL SPORTS COUNCIL Vs. A LATIF AND COMPANY

JUDGEMENT

(1.) This Rule was obtained by the employer by making a revision application under section 115 of the Code of Civil Procedure against an order dated 19-11-1998 passed by Subordinate Judge 5thCourt, Dhaka in Arbitration Miscellaneous Case No. 16 of 1998 by which an arbitrator was appointed by the Court for each of the parties.

(2.) Opposite party, the contractor, made an application under section 8(2) of the Arbitration Act, 1940, hereinafter referred to as the Act, for appointment of arbitrators for each of parties under clause 50 of the contract. His case, in short, is that the was awarded the contract for construction of office-hostel building of the Rajshahi Divisional Womens Sports Complex and on 30-05-1996 the work order was issued to him pursuant to the contract dated 12-02-1996 as executed by both parties. The work was stipulated to be completed within 270 days. But the employer took 9 months to hand over the site to him. On 06-03-1997 physical layout of the work was fixed up. After construction of three foundation piles, those failed load test for faulty design as supplied by the employer. Then, the employer decided to go for mat foundation and changed the design but ultimately did not supply any revised design. No work under the contract then proceeded. As a result, the contractor suffered loss to the tune of more than one crore. He addressed several letters to the employer requesting for arbitration as per terms of Clause 50 of the contract. Getting no response, he then served a notice dated 08-02-1998 under section 8(1) of the Act upon the employer requesting them for appointment of an arbitrator for arbitration of a claim for Taka 1,01,41,242.00 on account of loss, etc. The employer did not give any reply to that and the contractor was constrained to make an application under section 8(2) of the Act before the above Court for appointment of arbitrators for the parties for arbitration of the dispute.

(3.) The employer opposed the application by filing a written objection. It was mainly contended therein that there was no cause of action for the contractor for making the application. The work under the contract having not commenced, there was no scope for invoking the arbitration clause 50 of the contract. Under the contract, there might be some change in the design and the contractor was obliged to do the work. He also informed his readiness by his letter dated 01-06-1997 to do the work as per changed design which was necessitated for unavoidable circumstances. The employer addressed various letters requesting the contractor for holding discussion, but he preferred to make the application. After the work order was issued, the contractor killed time on various pretexts. The contractor never made any demand of loss nor there was any scope given to the employer to deny such claim. Even in his statutory notice, he could not assert that he ever made the demand for payment of any money and the employer denied any such claim. He made the demand for payment of money for the first time in his application under section 8(2) of the Act. Such claim must be premature. Moreover, his notice was motivated and intended to bring upon the employer undue pressure, and also hamper the work itself which is a part of the national plan for development of the sports.