Decided on February 25,1970

Build India Construction Co. Appellant
UNION OF INDIA (UOI) Respondents


Syed Sadat Abdul Masud, J. - (1.) This is an application under Sec. 20 of the Indian Arbitration Act for filing an arbitration agreement and also for appointment of an arbitrator. The Petitioner's case is that by three agreements in writing dated June 7, 1966, May 16, 1967 and June 26, 1967, between the Petitioner and the Respondent No. 1, the Petitioner agreed to perform certain construction works at Santragachi, Howrah, outside the jurisdiction of this Court. The said agreement or contracts contained an identical arbitration clause whereby the disputes and differences between the parties were agreed to be referred to the sole arbitration of the person appointed by the Additional Chief Engineer, Central Public Works Department, in charge of the work at the time of the disputes or if there be no Additional Chief Engineer, the administrative head of the Central Public Works the time of such appointment. It is alleged that the Petitioner has executed considerable part of the Respondent's work under the said three contracts. It is further alleged that disputes and differences arose between the parties in respect of the said three contracts. In para. 6 of the petition the Petitioner has stated that, the Union of India refused to appoint a proper arbitrator to adjudicate upon the said disputes and differences. In the said paragraph references have been made to certain letters copies of which have been annexed to the petition. The Petitioner has now made this present application for adjudication of the said disputes and differences between the parties.
(2.) Mr. A. P. Choudhury, on behalf of the Petitioner, has submitted that, admittedly, there is an arbitration agreement in respect of the said - three contracts and the Union of India has not appointed Arbitrators in terms of the arbitration clause and, as such, he had to make the present application. Relying upon Gannon Dunkerly If. Co. v/s. Union Carbide (India) Ltd. : A.I.R. 1962 Cal. 360 (367) he has argued that the said agreement should not only be filed in this Court but the Court should appoint an independent Arbitrator from the members of the Bar. The learned Counsel has argued that under Sec. 20(4) of the Act it is the Court's mandatory, duty to appoint an arbitrator where the arbitrator in terms of the arbitration clause has not been appointed. According to him, in the present case, there has been no appointed arbitrator and, as such, the Court should appoint an arbitrator on its own.
(3.) Mr. Tarun Bose, on behalf of the Respondent, has challenged the maintainability of this application on various grounds. Firstly, he has stated that, in the facts of the present case, reference has already been made and an Arbitrator has been appointed and, as such, application under Sec. 20 of the Act does not lie. Secondly, it is argued that the Petitioner made an application for an injunction in this Court restraining the Respondents from getting the contracts performed by other contractors. That application was dismissed with costs. Accordingly, this application is barred by the principles of constructive res judicata. His third contention is that the Petitioner has wrongly impleaded K. P. Sinha as Respondent No. 2. The said Mr. K. P. Sinha is not a party to the contracts between the Petitioner and the Union of India. He has, therefore, argued that the application is bad for misjoinder of parties. Fourthly, by the letter dated June 7, 1968, the Petitioner has given a notice under Sec. 8(1) of the Indian Arbitration Act, 1940, requesting the latter to appoint an arbitrator within 15 days. The Petitioner, having proceeded under Sec. 8(2) of the Act, is debarred from making the present application under Sec. 20 of the Act.;

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