VIPINBHAI R PAREKH Vs. GENERAL MANAGER WESTERN RLY
HIGH COURT OF GUJARAT
Vipinbhai R Parekh
General Manager Western Rly
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(1.) The contract between the parties which contained clause was brought to an end by the plaintiff. The other acted upon the representations made by the plaintiff in his Both the sides treated the contract as concluded and having been terminated. Even in such a situation much time after the termination of the contract can a dispute which may fall within the scope of arbitration clause be referred to an arbitrator as claimed by the plaintiff? This is the question which is required to be answered in this first appeal filed by the original plaintiff who had filed an application under sec. 20 of the Arbitration Act and whose application has been rejected by the trial court.
(2.) The facts in brief leading to this appeal are as follows:
The Railway Administration invited tenders some time in April 1973 for the construction work for building additional accommodation in Railway Staff College at Baroda. The plaintiff appellant herein filled in the tender and the same was accepted and the parties entered into an Agreement No. Ds/22 dated 21/06/1973 The plaintiff commenced work on 22/06/1973 It is not disputed that the work was closed on 19/10/1974 and thereafter in December 1974 the plaintiff gave no claim certificate Exh. 43. Before giving this certificate the plaintiff had written two letters Exhs. 37 and 39 to the Railway Administration. It appears that letter Exh. 37 was written prior to the date of Exh. 43 i.e. some time prior to December 1974 There is no specific date mentioned in the judgment nor the parties were able to give the correct date of this Exhibit. However from the context it appears that either it must be in December 1974 or some time prior to December 1974). This letter Exh. 37 is discussed in paragraph 18 of the judgment of the trial court and it is stated that the appellant plaintiff represented that if the Railway Administration was not willing to execute the work the same may be closed on Railway account immediately and his final dues be paid. Another letter Exh. 39 is dated 16/07/1974 In this letter the appellant plaintiff stated that in case the Railway Administration decides to finalise the contract at this stage due to paucity of funds or for any other reasons he was prepared to accept that position as well. However he put a condition that in that eventuality the Railway Administration should purchase the entire material lying at the site at the current market rate. Thereafter it appears that the parties have settled their accounts and as stated above in December 1974 the appellant plaintiff gave no claim certificate Exh. 43. The contents of the certificate have been reproduced in paragraph 13 of the judgment of the trial court which read as follows:
" ....... I have no other claim outstanding against the Western Railway for work done or for labour or materials supplied or on any other account and the payment of this bill shall be final settled of and claims in respect of work to which agreement/work order No. Ds/22 dated 21-6-73 with the Railway relates."
There appears to be some typing mistakes but it is the verbatim reproduction from the judgment of the trial Court. However there is no dispute with regard to the fact that such a certificate which brought about final settlement of all claims between parties was given.
(3.) After the aforesaid certificate was given the entire amount as per the final bill was paid to the appellant and that was some time in December 1974. Thus far there is no dispute. However on 13/10/1977 the appellant wrote a letter addressed to the General Manager Western Railway and claimed that he was entitled to receive damages from the opponent as according to him the Railway had committed breach of contract and that he was entitled to damages from the Railway Administration. Therefore he requested that the matter be referred to the Arbitration. The letter was replied to by the Railway Administration on 22/04/1978 and the Railway Administration rejected the request made by the appellant inter alia on the ground that the appellant had already given no claim certificate Exh. 43. Hence the appellant plaintiff filed an application under sec. 20 of the Arbitration Act and prayed that the dispute be referred to an Arbitrator and the Arbitrator be directed to file the award in court.;
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