TMI Blog1999 (7) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-1997. It is contended by the applicant that while the execution of the work was in progress the 1st respondent illegally and unilaterally terminated the agreement on 5-1-1999, It is also contended that the 1st respondent did not resort to the decision of the adjudicator specified under Clause 36(1) of the agreement or referring the matter to the arbitrator as specified in Clause 25(1) of the agreement and unilaterally terminated the contract. Therefore it is necessary to appoint an arbitrator to adjudicate the entire disputes between the applicant and the 1st respondent relating to the contract. 2. The respondents have resisted this arbitration request on several grounds. The main objection raised by the 1st respondent is that the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid daily at the rate specified in the Contract Date together with reimbursable expenses of the types specified in the contract data and the cost shall be divided equally between the Employer and the Contractor, whatever decision is reached by the Adjudicator. Either party may refer a decision of the Adjudicator to an Arbitrator within 28 days of the Adjudicator's written decision. If neither party refers the dispute to arbitration within the above 28 days, the Adjudicator's decision will be final and binding. 25.3 The arbitration shall be conducted in accordance with the arbitration procedure published by the institution named and in the place shown in the Contract Data. Therefore, it is clear that Clause 25 lays down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Conciliation Act is perfectly maintainable as it is in compliance of the provisions of Arbitration and Conciliation Act, 1996 and the scheme framed thereunder. 6. As already noted, the scheme provided under the agreement Ext. P4 is reference of the dispute to the decision of the Engineer, if not satisfied by the Engineer's decision, to refer the same to the adjudicator and if dissatisfied with the decision of the adjudicator, to refer the dispute to the arbitrator in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The contract data appended to the agreement which form part of the agreement shows that the Engineer as well as the adjudicator are named in the contract. The adjudicator named in the contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, according to the applicant the only remedy available to the applicant is to resort to arbitration proceedings under the provisions of the Arbitration and Conciliation Act as provided under Clause 25 of the agreement and there is no necessity for the applicant to comply with the other requirements of decision by the Engineer, if dissatisfied, refer the dispute to the adjudicator and move for the appointment of an arbitrator, if dissatisfied with the decision of the adjudicator. This contention of the applicant cannot be accepted. When the parties to a contract agree to any special mode for resolution of the disputes arising out of the agreement and they are bound to comply with the mode prescribed under the agreement. Without resorting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicator, but they have prevented the adjudicator from proceeding with the adjudication, questioning the very authority of the adjudicator. Therefore, it is clear that the applicant did not refer the dispute for decision by the Engineer and prevented the adjudicator from adjudicating the disputes as per the terms of the agreement. The applicant has no case that the 1st respondent has waived the steps provided in the agreement preceding the coming into operation of the arbitration clause in the agreement. On the other hand, the contentions raised by the applicant and the 1st respondent establish that the 1st respondent has been asserting that the applicant should follow the preceding steps before enforcing the clause regarding arbitration inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suggests that the parties intended to enter into an arbitration agreement for deciding all the questions and disputes arising between them through arbitration and thereby excluding the jurisdiction of ordinary civil Courts. Such reference to arbitration is required to be preceded by a decision of the Superintending Engineer and a challenge to such decision within 28 days by the party feeling aggrieved therewith. The steps preceding the coming into operation of the arbitration clause though essential are capable of being waived and if one party has been its own conduct or the conduct of its officials, disabled such preceding steps being taken, it will be deemed that the procedural prerequisites were waived. The party at fault cannot be permi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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