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2017 (5) TMI 1622 - HC - Indian LawsWorks Contract - nomenclature of agreement - Whether, any agreement by whatever name called, if it falls within the meaning and definition of work contract as defined under Section 2(I) of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 has to be referred for adjudication before the M.P. Arbitration Tribunal constituted under Section 3 of the 1983 Adhiniyam? Held that:- In the case of Kamini Malhotra (Supra), the learned single Judge considered the definition of 'works contract'. In addition, the meaning of word "building" was also considered. It was held that the definition of works contract is in wide spectrum. Its a definition of wide amplitude and application - the nomenclature of agreement is immaterial. Any agreement by whatever name called, if it falls within the meaning and definition of "works contract" as per Adhiniyam of 1983, it must be treated as a works contract - By applying an artistic linguistic engineering, an agreement can be worded in a unique or a different manner. It may have a different nomenclature but these factors will not determine its real nature. Whether, in view of statutory provisions of Section 7 of the Adhiniyam of 1983, the matter has to be referred to the M.P. Arbitration Tribunal constituted under Section 3 of the 1983 Adhiniyam, even in cases where the parties have incorporated a clause in agreement regarding resolution of dispute by some other forum or under the Arbitration and Conciliation Act, 1996? - Held that:- Sub-section (1) makes it clear that the aggrieved party to a works contract may refer its dispute in writing to the Tribunal irrespective of the fact whether there exists any agreement between the parties which contains an arbitration clause or not. Indisputably, the Adhiniyam of 1983 was held to be intra vires - The jurisdiction to decide a 'dispute' in a case of a works contract is with the Tribunal constituted under the Adhiniyam of 1983 - In view of statutory mandate contained in Section 7(i) of the Adhiniyam, the parties to a works contract needs to approach the Tribunal for resolution of their 'dispute'. Whether, the substituted definition of work contract in the M.P. Madhyastham Adhikaran Adhiniyam, 1983 by Act No. 7 of 2017 is clarificatory and is applicable to the pending or future contracts? - Held that:- Since intention behind the amendment is to clarify that concession agreement will also fall within the definition of works contract, it will be an amendment by which earlier definition is "substituted" and not "superseded". In other words, there is a difference between "supersession" and "substitution" of a provision - the amendment by Act No. 7 of 2017 is clarificatory in nature and is applicable to pending and future contracts. Any other ancillary issues arising out of the reference order - applicants/appellants advanced an alternative submission. It is contended that even if concession agreement is treated to be a works contract, the remedy under the Adhiniyam of 1983 can be invoked only when there exists a "dispute" between the parties - Held that:- The unamended definition of dispute includes "any difference" relating to "any claim" valued at ₹ 50,000/- or more. In our view, the words "any difference"" and "any claim" are much wider than the words used in the amended definition which confined the dispute to the "claim of ascertained money". The Legislature has definitely restricted the definition of dispute by consciously employing the words dispute means "claim of ascertained money". In unamended definition, any difference relating to any claim which was valued at ₹ 50000/- or more arising out of the execution or non-execution of works contract or part thereto was recognised as a dispute. Whereas, in the amended definition 'dispute' is confined to "claim of ascertained money". There is a remarkable difference in the language employed in both the definitions - thus, even if the present agreement is treated as a works contract, the Tribunal will have no jurisdiction to decide the difference between the parties unless it falls within the statutory definition of "dispute" under the Act of 1983 - A conjoint reading of section 2(d) and section 7 of the Adhiniyam makes it clear that a reference to the Tribunal can be made and entertained only when it is in relation to "the dispute". This ancillary issue is answered accordingly. Reference disposed off.
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