JUDGEMENT
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(1.)Heard the parties. Leave granted.
(2.)This appeal is directed against final judgment and order dated 12.01.2011 passed by the Division Bench of Patna High Court in L.P.A. No.762 of 2009 whereby the Letters Patent Appeal preferred by the respondents herein was allowed and order of the learned Single Judge dated 18.02.2009 in Writ Petition bearing C.W.J.C. No.10173 of 2008 was set aside on the sole ground that there was an arbitration clause in an agreement between the parties and since such alternative remedy was not availed by the appellant, the writ petition itself was not maintainable.
(3.)Learned counsel for the appellant has assailed the aforesaid order of the Division Bench on facts as well as on law. On law, it was contended that the writ petition could not have been held not maintainable, more so when no such objection was taken by the other side. On facts, it was submitted that the agreement noticed by the Division Bench no doubt contained an arbitration clause entitling either of the parties to invoke arbitration by the concerned Superintending Engineer in case of any dispute arising out of the agreement but the Division Bench failed to notice that the agreement itself was no longer in existence because the work was completed long back and payments including payment on account of labour escalation costs amounting to Rs.9.53 lacs was paid in February 1992. Thus, according to the appellant, the agreement dated 06.02.1989 had worked itself out and it was much later that a dispute arose when the respondent authorities withheld the security amount of the appellant of Rs.30 lacs for a long period. On persistent demand, Rs.20 lacs out of the security amount, was returned after 10 years in December 2002 and that too without any interest. At that stage appellant came to know that Engineer-in-Chief vide an order dated 09.06.2001 had ordered for making a recovery of Rs.9.53 lacs from the appellant which had been paid long back on account of labour escalation cost.
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