- (1.) - Leave granted. Heard both the counsel.
(2.) THE appellant had on 27/01/1982 had entered into a contract with the respondent to construct a theatre. He completed the work and handed over the same to the respondent in May, 1985. During the execution of the contract a dispute had arisen on certain items of the work which was sought to be decided by arbitration. THE appellant, therefore, filed O.S. No. 20 of 1986 in the Court of Subordinate Judge, Trivandrum under S. 20 of the ARBITRATION AND CONCILIATION ACT, 1940, for short 'the Act' for reference to an Arbitrator. THE respondent contended that there is no arbitrable agreement under the contract. Overruling the objection, the Subordinate Judge by his order dated 5/06/1986 held that Clause 73 of the Madras Detailed Standard Specifications for short MDSS would apply to the dispute which contains an arbitrable clause and, therefore, by order dated 2/07/1986 appointed a retired District Judge as an Arbitrator. On appeal by the respondent in M.F.A. No 460 of 1986, by order dated 15/12/1986, the Division Bench of the Kerala High Court held that Clause 73 of MDSS is inapplicable. THEre is no arbitrable agreement for reference to the Arbitrator. Thus, this appeal by special leave. Sri E.M.S. Anam, learned counsel for the appellant, placing reliance on clause 12 of the "General Condition of the Contract" contended that all items of work referred to therein would include MDSS in the addenda volume. Clause 73 of the arbitrable agreement therein gets attracted to the dispute. Therefore, the trial Court was right in its conclusion that the dispute is arbitrable under clause 73. The High Court was not right in its contra conclusion.
(3.) HAVING given our anxious consideration, we find that the contention raised by the appellant is not tenable. Admittedly, the contract contains Article 60 which provide "arbitration of any dispute or difference between the parties to the contract either during the progress or after completion of the works or the interpretation of the contract of any matter or thing arising thereunder except as to the matters left to the sole discretion of the Corporation Engineer under the clauses of the contract." While entering into the contract this clause was admittedly excluded, In Article 2 of the "General Conditions of the Contract" clause (b) provides that "the Original Agreement, with its accompanying Schedules form part of the Contract Documents and shall be kept by the Corporation but the Contractor shall be supplied with a copy of the agreement and copies of Tender Notification, General Conditions of the Contract, Specifications, Drawings and relevant schedules all duly attested by the Contractor and the Managing Director". Clause (f) postulates that "the terms of the Contract cannot be added to varied or reduced by any oral agreement previous or subsequent to its signature.";