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Jiwnani Engineering Works Pvt. Versus Union Of India (Uoi)

1977 (3) TMI 168 - CALCUTTA HIGH COURT

Special Suit No. 62 of 1976 - Dated:- 17-3-1977 - Sabyasachi Mukharji, J ORDER Sabyasachi Mukharji, 1. This is an application under Section 20 of the Arbitration Act, 1940. Jiwnani-Engineering Works Pvt. Ltd., the plaintiff herein carried on and still carries on business as Railway Contractor and Engineer having its office at 75/C, Vivekananda Road, Calcutta. Pursuant to an invitation to tender by the defendant, the South Eastern Railway, the plaintiff duly submitted a tender for execution of ea .....

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ent. Final bill prepared by XEN as per actual cross-section vide pages 2115 to 2135 of M. B. No. 2/BKD/KCP-3,66,923 Cft @ ₹ 76.23 p. per 1000 Cft. ₹ 25,683.44 (This amount should have been ₹ 27,208.24 as per contractor's claim." 2. The arbitrators held sittings on the said disputes and thereafter referred the matter to an Umpire and the Umpire has made the award on 24th May, 1975 directing the South Eastern Railway to pay to the plaintiff a sum of ₹ 75,802/-and a .....

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y the letter dated 27th April, 1975. The said letter was to the following effect : "To The General Manager, S. E. Railway/GRC/Cal-43, Dear Sir. Sub : Earthwork, Bridgework and turfing in Section 5 under Agreement No. CE/PD/54/64. Against the above-noted Agreement, we have been paid less with regard to the item of earth-work-information and filling done between the two banks as well as on account of Shrinkage. This quantity comes to 11,59,765 Cft. and in terms of payment dues outstanding com .....

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m interest at 12 per cent till our dues are paid. The aforesaid claims are not in the pending reference before the Umpire Sri K. Balachandran, Addl. Chief Engineer (G), S. E. Rly/GRC, Calcutta-43, for which arbitration of some other claims are before him. Kindly either allow the aforesaid claims or refer the same for adjudication in an Arbitration Reference in terms of the Arbitration Clause No. 63 of General Conditions of the Contract. This may please be treated as 'Urgent'. Thanking yo .....

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It was also submitted that the present claim was part of the original claim in respect of which award has been made by the Umpire. It was, then, submitted that the present application was belated. It would be advisable to deal with the last question first, viz. whether the claim is belated. 5. On behalf of the respondent, it was submitted that the work had been completed in or about 1968 and the instant application was made on the 24th May, 1975. It was, therefore submitted that under Article 1 .....

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ision, Article 137 would apply to an application under Section 20 of the Arbitration Act, 1940 and, therefore, the present application was barred. In this connection, reference must be made to the arbitration Clause 63 which is to the following effect : "Clause 63(1). Demand for Arbitration.- In the event of any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in quest .....

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arbitration. Such demand for arbitration shall specify the matters which are in question, dispute or difference, and only such dispute or difference of which the demand has been made and no other, shall be referred to arbitration. (2) Obligations during pendency of arbitration work under the contract shall, unless otherwise directed by the Engineer, continue during the arbitration proceedings, and no payment due or payable by the Railway shall be withheld on account of such proceedings provided .....

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ication has been made on 9th Dec., 1976. From that point of view it appears to me that the right to apply to this Court under Section 20 had not become barred. It was, then, contended on behalf of the respondent that in any event the claim sought to be referred to arbitration was belated and barred by limitation. There is a good deal of substance in the contention that the claim now sought to be referred to arbitration is barred by limitation. But the Supreme Court has observed in the case of Wa .....

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e of the views of the Supreme Court in the cases mentioned before that application under Section 20 of the Arbitration Act, 1940 would not be governed by the limitation prescribed by the Limitation Act. But the Supreme Court was there dealing with the question whether in any application under any Act other than Civil Procedure Code, Article 137 of the Limitation Act would be applicable or not. The Supreme Court was not dealing in the last mentioned case with the question whether the contention t .....

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tention is whether the claim sought to be raised could be allowed to be raised at this time. This question involves two different considerations. First, whether this present claim had been in fact raised before or was part of the previous claim and secondly, whether, if It was not part of the previous claim, it could be referred again afresh. On behalf of the plaintiff reliance was placed on the decision in the case of Kerorimall v. Union of India, . There P. C. Mallick, J. held that the same di .....

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ought to be raised by one party to be not within the reference and, therefore, he had no jurisdiction to decide it, then it could not be said that the arbitrator had adjudicated the dispute. If there had been no such adjudication of the dispute it could not be held that the subsequent reference to the dispute was bad and was not permissible, In such a case the subsequent reference could not be held to be illegal on the ground of res judicata or principles analogous thereto. Learned Judge referre .....

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of the reference of the arbitration which determined the issues which the arbitrator had to decide. Accordingly, if a particular issue was included in the terms of reference, the claimant would be estopped by the doctrine of res judicata from raising that issue in the subsequent arbitration proceedings, The first consideration, therefore, is to find out whether the claim now sought to be raised had been raised or was part of the reference made before. It appears that the claim raised before was .....

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sal of disputes between the parties. In my view, therefore, this claim which is now sought to be raised was part of the claim raised before. It is difficult to determine on what basis the Umpire has awarded the amount for claim for earthwork, entertaining a new claim for earthwork may require modification or alteration of the awarded amount. That is not possible. The claim adjudicated upon was claim for earthwork, the present claim is also a claim for earthwork. Therefore, both on the authority .....

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me is barred or not in this case. Arbitration is a procedure for speedy disposal of disputes between the parties. A claim which could have been raised and which had not been raised, in my opinion, should be considered to be barred even though the provisions of Order 2 Rule 2 of the Code of Civil Procedure in terms do not apply to arbitration proceedings in appropriate cases. In the judgment of the Calcutta High Court referred to in the case of Kerorimal v. Union of India, (supra) Mallick J. was .....

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