- (1.) The respondent had entered into an agreement with the appellant for execution of the work of restoration of scoured bank of Balibandha and retired line to protect Naraj Weir, being Agreement No. 32 F-2 of 1976-77. The respondent did not complete the work within the extended time and did not fully execute the work according to the appellant. There were disputes between the parties.
(2.) According to the appellant, the respondent contractor wrote a letter dated 28-4-1977 in which the respondent stated that his total claim is rs 37,106. According to the appellant, at the request of the respondent, he was paid Rs 38,396 and a sum of Rs 3710 was withheld.
(3.) Ultimately on account of the disputes between the parties, the respondent, by his letter dated 15-9-1977, requested the Chief Engineer of the appellant to appoint an arbitrator under clause 23 of the contract which was a clause for reference of disputes between the parties to arbitration. Clause 23 of the contract reads as under: "Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications, designs, drawings, and instructions hereinbefore mentioned and as to the quality of workmanship, or materials used on the work, or as to any other question, claim, right, matter, or thing what so ever, in any way arising out of, or relating to the contract, designs, drawings, specifications, estimates, instructions, orders, or these conditions, or otherwise concerning the work or the execution, or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment thereof shall be referred to the sole arbitration of a Superintending engineer of the State Public Works Department unconnected with the work at any stage nominated by the concerned Additional Chief engineer. If there be no such Superintending Engineer it should be referred to the sole arbitration of the Additional Chief Engineer concerned. There will be no objection to any such appointment that the arbitrator so appointed is a government servant. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to this contract. ";