TMI Blog1999 (1) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... neer "shall be the exclusive judge upon all matters relating to the construction, incidents and the consequence of these presents, and of the tender, specifications, schedule and drawings of the contract, and in regard to the execution of the works or otherwise arising out of or in connection with the contract, and also as regards all matters of account, including the final balance payable to the contractor, and the certificate of the engineer for the time being, given under his hand, shall be binding and conclusive on both parties. Since Clause 24 does not contemplate any arbitration, the application of the appellant under Section 8 of the Arbitration Act, 1940 was misconceive. The appeal is, therefore, dismissed though for reasons some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clause-24 : Except as provided in Clause 23 hereof the decision of the Managing Director of the U.P.S.I.C. shall be final, conclusive and binding on both the parties to the contract upon all questions relating to any claim, right, matter or thing in any way arising out of or relating to the contract or these conditions or concerning abandonment of the contract by the contractor and in respect of all other matter arising out of this contract and not specifically mentioned herein." There were disputes between the appellant and the respondent in connection with the payments to be made under the terms of the said contract and in connection with the work of the said contract. The appellant made an application under Section 8 of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or failure to execute the same. Under Clause 24, except as provided in Clause 23, the decision of the Managing Director of the respondent shall be final, conclusive and binding on both the parties to the contract upon all questions relating to any claim, right, matter or thing in any way arising out of or relating to the contract and in respect of all other matters arising out of the contract and not specifically mentioned in the said Clause. Therefore, in respect of certain claims the decision of the Executive Engineer is final and binding on both the parties to the contract. While in respect of the remaining matters, the decision of the Managing Director of the respondent is final, conclusive and binding on both the parties to the contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a clause that on certain questions the decision of an engineer, architect or another expert shall be final. The decision given in such cases by the engineer etc., is not an award. As pointed out by Bernstein, such a person is under no obligation, unless the contract otherwise provides, to receive evidence or submissions and is entitled to arrive at his decision solely upon the results of his own expertise and investigations. The procedure involved is not arbitration, and the Arbitration Act does not apply to it. The primary material on which such person acts is his own knowledge and experience, supplemented if he thinks fit by (i) his own investigations; and/or (ii) material (which need not conform to rules of `evidence') put up before him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to the contract upon all questions relating to the meaning of specifications, drawings and instructions hereinbefore mentioned and as to the quality of workmanship or materials used on the work, or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract........ or otherwise concerning the works or the execution or failure to execute the same..........." This Court held that this clause did not spell out any intention to refer any disputes and differences between the parties to arbitration. The wording of the clause in the present case is very similar to the wording which was interpreted as not an arbitration clause in the above case. Both the above judgments of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-forming an administrative rather than a judicial function, and when doing so there may often be no formulated dispute before him at all. He has been described as a "preventer of disputes" in contradistinction to an Arbitrator whose function can only arise once a dispute is in existence. He is not under the same obligation to afford the parties or their representatives a full hearing and receive evidence from them. Thus each contractual provision may need to be carefully scrutinised to see into which category the person named falls. In the present case the Managing Director is more in the category of an expect who will decide claims, rights, on matters in any way pertaining to the contract. The intention appears to be more to avoid dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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