TMI Blog2015 (1) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... ” but arbitrable. Whether the Arbitrator could have decided the issues which were not arbitrable – Held that:- Arbitration arises from a contract and unless there is a specific written contract, a contract with regard to arbitration cannot be presumed - Section 7(3) of the Act clearly specifies that the contract with regard to arbitration must be in writing - the disputes which have been referred to in Clause 39 of the contract are concerned, it was not open to the Arbitrator to arbitrate upon the said disputes as there was a specific clause whereby the said disputes had been “excepted” - when the law specifically makes a provision with regard to formation of a contract in a particular manner, there cannot be any presumption with regard to a contract if the contract is not entered into by the mode prescribed under the Act - If a non-arbitrable dispute is referred to an Arbitrator and even if an issue is framed by the Arbitrator in relation to such a dispute, there cannot be a presumption or a conclusion to the effect that the parties had agreed to refer the issue to the Arbitrator - the respondent authorities had raised an objection relating to the arbitrability of the afore sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special item has come to the notice. In case the contractor fails to attend the meeting after being notified to do so or in the event of no settlement being arrived at the Railway shall be entitled to execute the extra works by other means and the contractor shall have no claim for loss or damage that may result from such procedure. Provided that if the Contractor commences work or incurs any expenditure in regard thereto before the rates are determined and agreed upon as lastly mentioned, then and in such a case the Contractor shall only be entitled to be paid in respect of the work carried out or expenditure incurred by him prior to the date of the rates as aforesaid according to the rates as shall be fixed by the Engineer. However, if the contractor is not satisfied with the decision of the Engineer in this respect he may appeal to the Chief Engineer within 30 days of getting the decision of the Engineer supported by the analysis of the rates claimed. The Chief Engineer's decision after hearing both the parties in the matter would be final and binding on the contractor and the Railway. Clause-63. All disputes and differences of any kind whatsoever arising out of or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t acceptable to the contractor but the contractor accepted the same under protest. 8. In addition to the aforestated dispute with regard to determination of the rate at which the contractor was to be paid for the extra work done by it, there were some other disputes also and in order to resolve all those disputes, Respondent No.5, a former Judge of the High Court of Andhra Pradesh, had been appointed as an Arbitrator. 9. The learned Arbitrator decided all the disputes under his Award dated 21.9.2002 though the contractor had objected to arbitrability of the disputes which were not referable to the Arbitrator as per Clause 39 of the Contract. Being aggrieved by the Award, Union of India had preferred an appeal before the Chief Judge, City Civil Court, Hyderabad under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act ) and the said appeal was allowed, whereby the Award was set aside. 10. Before the City Civil Court, in the appeal filed under Section 34 of the Act, the following two issues had been framed :- (a) Whether the dispute was in relation to an excepted matter and was not arbitrable? (b) Whether the claimant was en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were not arbitrable. Some of the disputes which had been referred to in Clause 39 were specifically not arbitrable and in relation to the said disputes the contractor had to negotiate with the concerned Engineer of the respondent and if the contractor was not satisfied with the rate determined by the Engineer, it was open to the contractor to file an appeal against the decision of the Engineer before the Chief Engineer within 30 days from the date of communication of the decision to the contractor. 17. In the instant case, there was no finality so far as the amount payable to the contractor in relation to the extra work done by it is concerned, because the said dispute was never decided by the Chief Engineer. In the aforestated circumstances, when the disputes had been referred to the Arbitrator, the disputes which had been among excepted matters had also been referred to the learned Arbitrator. 18. Upon perusal of the case papers we find that before the learned Arbitrator, the contractor did object to the arbitrability of the disputes covered under Clause 39, but the Arbitrator had decided the said issues by holding that the same were not excepted matters but arbitrab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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