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TMI Blog2013 (4) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... ements dated 3rd February, 2000 is reproduced herein below: "In case of dispute between the parties, it is agreed that all the disputes of any nature will be settled by arbitration in terms of the arbitration clause reproduced herein. "Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions herein before mentioned and as to the quality of workmanship, or materials used or as to any other question, claim, right, matter or thing whatsoever in any way arising out, relating to the contract, designs, drawings, specifications, estimates, instructions orders or these conditions or otherwise concerning the work, or the execution or failure to exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, in our opinion, the party cannot be said to have waived his right or acquiesced himself to the jurisdiction of the court. What is, therefore, material is as to whether the petitioner has filed his first statement on the substance of the dispute or not, if not, his application under Section 8 of the 1996 Act, may not be held wholly unmaintainable. We would deal with this question at some details, a little later. 5. Learned counsel for the plaintiff states that the dispute between the parties in the present case pertains only to the agreement dated 3rd February, 2000 and that too with regard to risk purchase. She submits that the arbitration clause is not attracted to the present case inasmuch as the dispute between the parties pertains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are unable to accept this view. Clause 25 which is the arbitration clause starts with an opening phrase excluding certain matters and disputes from arbitration and these are matters or disputes in respect of which provision has been made elsewhere or otherwise in the contract. These words in our opinion can have reference only to provisions such as the one in parenthesis in clause 2 by which certain types of determinations are left to the administrative authorities concerned. If that be not so, the words "except where otherwise provided in the contract" would become meaningless. We are therefore inclined to hold that the opening part of clause 25 clearly excludes matters like those mentioned in clause 2 in respect of which any dispute is l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the opinion that Clause 6 does not pertain to excepted matters. Clause 6 of the agreement only empowers the defendant to purchase goods at the risk and cost of the plaintiff. 11. Clause 6 confers no finality on any authority to decide or adjudicate the dispute between the parties. 12. In Vishwanath Sood (supra) the Supreme Court held that arbitrator could not decide those disputes which had to be decided by a third party and whose decision was final and binding on the parties. 13. Undoubtedly in the present case the Superintending Engineer has computed the amount payable by the plaintiff as compensation but in the opinion of this Court there is no clause in the contract which attaches any finality to the Superintending Engineer's d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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