TMI Blog1985 (1) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Arbitrator and for appointment of some other impartial Arbitrator for decision of the dispute between the parties on the pleas that under the arbitration agreement the disputes had to be referred to the Arbitration of Superintending Engineer of the Circle and the applicant submitted the claim before the said Arbitrator in which all details were mentioned and a total claim of ₹ 1,05,984/- was made against the Board. The Arbitrator did not proceed with the matter and allowed the four months' time to expire, which amounted to misconduct and hence order of the Court was sought for appointment of another Arbitrator. 2. The application was contested by the Board and the following issues were framed: 1. Whether the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case that decision is not applicable because here the second application was filed before the first application was withdrawn and to these facts the provisions of Order 23, C.P.C. are not attracted in view of Ram Mal v. Upendra Dutt AIR 1928 Lah 710 and Mangi Lal v. Radha Mohan AIR 1930 Lah 599. The earlier application was filed on 6th Oct, 1982 and the present application was fixed on 26th Oct., 1982 and the first application was withdrawn vide order dt. 18-11-1982. The learned counsel for the Board could not show if aforesaid two decisions were ever dismissed from or overruled. The aforesaid two Lahore decisions clearly say that if second suit if filed before the first suit is withdrawn then O. 23, C.P.C. is not attracted and the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed strictly according the specifications attached. 5. In matter of dispute the case shall be referred to the Superintending Engineer of the Circle, whose order shall be final. 6. All work executed shall be paid for according to measurements taken by or under the orders of the officer in charge of the work, and not according to the quantity given in any estimate . Shri Munishwar Puri appearing for the Board has strenuously argued that these are the conditions for the carrying out of the work order and power has been bestowed either on the officer-in-charge or on the Superintending Engineer of the Circle for deciding certain matters but none of the conditions shows any arbitration clause. The Court below had referred to conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed between the parties if the officer concerned was to settle any dispute between the parties if the officer concerned was to settle any dispute between the parties on being referred to him. He was given authority to supervise and to have administrative control over the work. It was also taken notice of that the clause reproduced above was under the marginal note of 'direction of work'. So, while the work was to go and any question was to arise about the interpretation of meaning of the specifications, decision and instructions, the matter had to be decided by the Superintending Engineer, for the time being and if during the contract any difficulty to find out the meaning arose, at different times, during the posting of the diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below and hold that there was an arbitration agreement between the parties. 7. Adverting to the remaining points arising in this issue, it is categoric stand of the contractor that he submitted his claim Exhibit. All to the Superintending Engineer, Bhakra Dam Circle, Nangal, requesting him to adjudicate the dispute between the parties on the basis of arbitration agreement and after giving detailed facts in 14 paras 10 items of claim were mentioned and sought an award of ₹ 1,05,984.00 along with 18 per cent interest per annum, from the date of reference till realization. This was not controverted. The Arbitrator did not enter into reference and kept quiet till the application was moved in the Court. It has to be seen whether this a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies to the agreement cannot ask the Arbitrator to arbitrate or that it would be an illegal reference. If the Arbitrator is satisfied that he is the Arbitrator under the agreement he will be duly bound to call upon the opposite party to file their counter-claim and then to proceed to arbitrate the matter in accordance with law. If he fails to proceed with the arbitration and allows 4 months' time to pass, it may be a fit case for his removal and for appointment of another Arbitrator. 8. In view of Laxminarayan Samantaray's case and Guru Nanak Trunk House's case (supra) the decision of the Court below on issue No. 3 is hereby reversed and it is held that reference of dispute by the contractor to the Superintending Engineer, Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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