Decided on January 12,1973

The Union Of India And Others Appellant
Bimal Kumar Kar Respondents


P. K. Goswami, J. - (1.) THIS is a first appeal by the defendants and is directed against an order passed by Sri R. C. Bora, Assistant District Judge No. 2, Gauhati, ordering an agreement to be filed for arbitration under Section 20 of the Arbitration Act, 1940 (briefly 'the Act').
(2.) THE plaintiff is a registered contractor of the N. F. Railway and he took various contracts for doing miscellaneous works at Pandu under the aforesaid Railway. In the instant case the plaintiff's contract was in connection with the preliminary works of the Brahmaputra Bridge construction at Adabari colony. A deed of agreement was executed between the parties and later a subsidiary contract was also executed adding to the volume of the works. The plaintiff completed the works and a final bill was submitted. The defendant -railway paid the amount of the bill in full in December, 1958. The plaintiff had however several other bills pending in connection with other contracts under the Railway. On 27th January, 1961, the plaintiff was intimated by the Executive Engineer II, Brahmaputra Bridge Project, Pandu, that an amount of Rs. 21,056/ - was paid to him in excess of the dues for the works done in connection with the aforesaid two contracts and that it was proposed to withhold the payment of other bills to the extent of that amount. The plaintiff objected to this, but the Railways actually withheld the abovesaid amount from the other bills of the plaintiff. It is common ground and is apparent from the agreement dated 30th January, 1958 (Ext. 1) that the contractor has agreed for the performance of the works in accordance with the General Conditions of Contract and Standard Specifications (1956 Edition) of the Engineering Department of the North -Eastern Railway (briefly 'the Regulations'). By a letter dated 29th January 1961 (Ext 3) the plaintiff requested the Executive Engineer to "reconsider your decision and exempt me from any such recovery for the reason as stated above". This letter was in reply to the Executive Engineer's letter dated 27th January, 1961 (Ext. 2). By Ext. 4, the plaintiff again on 30th January, 1961 reiterated his objections and requested the Chief Engineer this time for a decision. In this letter, he concluded as follows: "If my contentions are not agreed upon an early reply communicating your decision may kindly be given in order to enable me to take further action." There was no response from the Railway and the plaintiff, through his lawyer, gave a notice under Section 80, C.P.C. to the General Manager, N. F. Railway at Pandu, on 15th March, 1961 (Ext. Ka). This evoked a reply from the General Manager to the plaintiff dated 14th June, 1961 (Ext. Kha), whereby it was pointed out that "the Railway Administration has acted according to provisions of the agreement, thus no liability attaches to it for the deductions made". Since Ext. Ka dated 15th March, 1961 referred to the previous letters of the plaintiff of 29th January, 1961 and 30th January, 1961, the General Manager's reply dated 14th June, 1961 can be taken as answer to all these letters. The plaintiff again on 6th September, 1961 served another notice (Ext. Ga) upon the General Manager through his advocate requesting "to consider the matter and pass orders for Payment...........". The General Manager replied by Ext. Gha dated 18th January,1962 to the plaintiff's advocate that "recovery was made in terms of clause 52 of the General Conditions of Contract amended by North Eastern Railway in correction slip No. 2." Finally the plaintiff on 30th March, 1963 made an application to the General Manager, North -Eastern Railway, representing the railway at Maligaon, Pandu (Ext. Unga) "an application demanding reference to arbitration, the matter in question, dispute or difference''. The plaintiff made another demand for reference to arbitration on the same terms by Ext. Cha. which bears no date, but is now admitted by both sides to have been given on 30th September, 1966 and received by the defendant on 3rd October, 1966. The defendant attempted to prove by producing a document marked 'X' that it had replied rejecting the plaintiff's demand. The plaintiff in the above background submitted his application under Section 20 of the Act in the court of the Assistant District Judge. The defendants resisted the claim by filing a written statement denying liability. Amongst other points taken, was the question of limitation.
(3.) APART from the documentary evidence to which we have already made reference, the plaintiff examined himself and no other oral evidence was adduced by him. The defendants also did not examine any witness.;

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