Decided on December 12,1992



- (1.)IN this appeal, under Section 39 of the Arbitration Act, the appellant challenges the judgment and decree, dated 19th March, 1986, in O.S.No.1100 of 1983 on the file of the II Additional Judge, City Civil Court, Hyderabad, as being illegal. The first defendant in the suit is the appellant. The respondent herein filed the suit under Section 20 of the Arbitration Act (hereinafter referred to as 'the Act') praying that the Chief Engineer (Retd.) - second defendant therein, (Now it is stated before us by the learned counsel that it is a mistake for first defendant) may be ordered to file the agreement entered into between the plaintiff and the first defendant and to refer the six claims specified therein to the arbitrator already appointed by the first defendant, who was impleaded as second defendant therein. It would be apt to note a few facts leading to the filing of the suit.
(2.)THE respondent here in is a contractor undertaking civil works of construction from the Government and statutory Corporations. In the year 1977 the respondent entered into an agreement with the appellant for construction of food-grain godowns having 13,340 tonnes capacity, having been found to be the highest bidder. In execution of that work certain disputes arose between the parties. THE respondent made as many as nine claims and requested the appellant to refer them to an arbitrator pursuant to the arbitration clause in the agreement. THE appellant referred three claims only to the arbitrator on 9-8-1982 . On 14-9-1982 the respondent addressed a letter to the appellant requesting it to refer the remaining six claims also to the arbitrator. THE appellant declined to accede to that request and intimated the same by its letter dated 6-12-1982. In so far as the three claims, which were referred to the arbitrator, were concerned the respondent participated in the arbitration proceedings. On 30-8-1983 award was passed in respect of the three claims and we are told that it was also made rule of the Court. In respect of the remaining six claims the respondent filed the present suit on 16-7-1983. In the said suit the defendant, inter alia, pleaded that the plaintiff-respondent herein, having proceeded under Chapter-II of the Act, was precluded from invoking Section 20 of the Act. THE trial Court, by judgment dated March 19,1986, rejected the contention of the defendant, directed filing of the arbitration agreement into court, appointed the second defendant as arbitrator as he had already adjudicated the other three claims and referred the six claims in question to him for adjudication. Aggrieved by the judgment of the trial court, the present appeal is field by the defendant.
Sri. K.V. Ramana Rao, learned counsel for the appellant, contends that in view of the provisions of sub-section (1) of Section 20 of the Act the suit is not maintainable, as the respondent has proceeded under Chapter-II of the Act in respect of three claims, which were already adjudicated by the arbitrator and the award was also made rule of the Court. Sri. K. Ramakrishna Reddy, learned counsel for the respondent, on the other hand contends that in respect of the claims, which have been referred to the arbitrator, the respondent did not take any steps under Chapter-II of the Act, therefore, the decree under appeal is unassailable.

(3.)THE short question that arises for consideration in this appeal is- whether on the facts and in the circumstances of the case, the respondent is precluded from invoking Section 20 of the Act.

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