BUILD INDIA CONSTRUCTION CO. Vs. HINDUSTAN FERTILISER CORPORATION LTD.
HIGH COURT OF CALCUTTA
Build India Construction Co.
HINDUSTAN FERTILISER CORPORATION LTD.
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Pratibha Bonnerjea, J. -
(1.) This is an application under section 20 of the Arbitration Act for referring the disputes to arbitration. These disputes are mentioned in paragraph 17 of the petition. It appears that in respect of the same Contract No. 5 of 1973-74 dated the 19th May, 1973 the present petitioner had made a previous application under section 20 of the Arbitration Act for referring the disputes which had arisen, between the parties at that time for arbitration. Before taking out that first application the petitioner had written a letter dated the 4th November, 1980 to the General Manager, Hindustan Fertiliser Corporation Limited for adjudicating the disputes between the parties. It was further stated in that letter "some of the issues for determination are cited below to enable you to take immediate necessary Section in the matter:-
(2.) As the respondent did not pay any heed to this letter the first application under section 20 of the Arbitration Act was moved by the petitioner as already mentioned above. No dispute was mentioned in the body of that petition but the letter dated the 4th November, 1980 was made Annexure G to that petition. In fact Annexure G was the basis of the first petition under section 20 of the Arbitration Act. On that application an order was passed on the 18th June, 1981 for filing the arbitration agreement and it was further mentioned in that order that the disputes mentioned in the petition along with the counter claims of the defendant respondent, if any, be referred to the arbitration of the said Arbitrator.
(3.) By that order Mr. Sisir Kumar Mukherjee, a retired Judge of this Court was appointed the sole Arbitrator. Before the Arbitrary the petitioner as claimant along with the disputes specifically mentioned in Annexure G also submitted the disputes mentioned in paragraph 17 of the present petition. The respondent contended before the Arbitrator that these disputes were not mentioned in the petition before Salil Kumar Roy Choudhury, J. and, therefore, these disputes were not referred to arbitration. As, the Arbitrator himself was in doubt as to whether these disputes were referred to him or not, the petitioner took out the present application for a fresh order of reference under section 20 of the Arbitration Act for referring the disputes mentioned in paragraph 17 of the present petition to the Arbitrator, Sisir Kumar Mukherjee for adjudication. In the affidavit-in-opposition filed by the respondent in this matter the respondent has taken a point that the disputes mentioned in paragraph 17 of the present petition were already in existence on the 18th June, 1981 when the first order of reference was made by Salil Kumar Roy Chowdhury, J. As these disputes were not incorporated or mentioned in the first petition the petitioner cannot agitate these disputes any further because all these disputes are hit by the principles of constructive res judicata. Moreover, according to the petitioner the present application is also barred by limitation.;
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