K.K. Lahoti, J. - (1.)This revision is directed under Section 7 of the M.P Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as the "Adhiniyam" in short) aggrieved by the award of the Arbitration Tribunal dated 3rd of April, 1996 in Reference Case No. 70/1990 by which counter claim filed by the petitioner has been dismissed.
The tribunal in para 25 of the order found that the State before filing of the counter claim had not issued notice to the respondent for any quantified amount and in absence of this, there was no dispute in existence between the petitioner and respondent and the counter claim was rejected only on this count.

The aforesaid order has been assailed by the petitioner on the following grounds:

(i) That for counter claim, it was not necessary for the petitioner to serve a notice for any quantified amount and the notice which was served by the petitioner on respondent was sufficient.

(ii) That, under the Adhiniyam there is a requirement of filing a dispute before final authority but there is no statutory requirement under the Adhiniyam to serve a notice claiming quantified amount against the contractor.

(iii) Though in section 2(d) of the Adhiniyam, the definition of dispute provides, that 'dispute' means claim of ascertained money valued at Rs. 50,0007 - or more but it also does not provide any requirement for issuance of a notice before filing a dispute to the tribunal.

(iv) That, notice Annexure A/8 fulfils the requirement when the respondent was noticed by the petitioner in respect of the violation of the clause of the agreement and in the notice, it was stated that the respondent is responsible to compensate department under clause 4.3.3.3 of the agreement. But the tribunal erred in rejecting the counter claim of the petitioner without considering this aspect. Contending aforesaid, it is submitted by Shri P.N. Dubey, learned Dy.A.G. that the order passed by the tribunal so far as it relates rejection of the counter claim may be set aside and the matter may be remitted back to the tribunal to decide the counter claim on merits.

Per contra, Shri V.R. Rao, learned Sr. Advocate opposed the contention and submitted:

(a) That, for referring the case to the tribunal, it was necessary that there should exist "dispute" between the parties. In absence of any dispute between the parties, no reference or counter claim could have been filed before the tribunal.

(b) That, the dispute has been defined in Section 2(d) of the Act which provides that the dispute should be of ascertained money valued at Rs. 50,0007 - or more relating to any difference arising out of The execution or non -execution of the works contract or part thereof. If a difference is a dispute and is covered under Section 2(d) of the Act, it is necessary that one party should demand such a claim from other and until and unless it is denied by the other side, it would not fall within the definition of a dispute. In this case admittedly, the petitioner has not served a notice to the respondent demanding any quantified amount claimable under the contract and in fact no dispute was raised by the petitioner against respondent.

(c) Reliance is placed to a Full Bench judgment of this Court in Ravi Kant Bansal Vs. M.P. Audyogik Kendra Vikas Nigam, 2006 (2) M.P. 183 and Division Bench judgment in C.R. No. 2044/96 Jagjit Singh Anand Vs. State of M.P. & others and submitted that this revision is without merit and may be dismissed.

To appreciate rival contention of the parties, it would be appropriate if certain provisions of Adhiniyam are referred. Sections 2(1) (d), 7 and 7 -B are relevant which read thus :

Section 2(1)(d) "dispute" means claim of ascertained money valued at Rupees 50,000/ - or more relating to any difference arising out of the execution or non -execution of a works contract or part thereof. Section 7. Reference to Tribunal - (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal.

(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments.

(3) The reference shall be accompanied by such fee as may be prescribed.

(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed.

(5) On receipt of the reference under sub -section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not so satisfied it may summarily reject the reference after recording reasons therefor. Section 7A. Reference petition - (1) Every reference petition shall include whole of the claim which the party is entitled to make in respect of the works -contract till the filing of the reference petition but no claims arising out of any other works -contract shall be joined in such a reference petition.

(2) Where a party omits to refer or intentionally relinquishes any claim or any portion of his claim, he shall not afterwards be entitled to refer in the respect of such claim or portion of claim so omitted or relinquished.

(3) Notwithstanding anything contained in sub -section (1) or sub -section (2) disputes relating to works -contract which may arise after filing of the reference petition may be entertained as and when they arise, subject to such conditions as may be prescribed. 7 -B. Limitation - (1) The Tribunal shall not admit a reference petition unless -

(a) the dispute is first referred for the decision of the final authority under the terms of the works contract; and

(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority:

Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months.

(2) Notwithstanding anything contained in sub -section (1). where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement.

(2 -A) Notwithstanding anything contained in sub -section (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, foreclosed, abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract: Provided that if a reference petition is filed by the State Government, such period shall be thirty years.

The entertainability of a counter claim in a reference application has been considered, by the Division Bench of this Court in P.K. Pande Vs. State of M.P. & others., 2000 WLJ 290, in which the Division Bench found that the counter claim is nothing but a counter reference petition and is maintainable in a reference petition. The Division Bench held thus:

14...A counter claim, in our view, is nothing but a reference of dispute in relation to same works contract by the opposite party. It cannot be said that the opposite party (such as the department of the State herein) is not competent to make a reference under Section 7 of the Act. The subject matter of which it was filed the counter claim constitutes relevant material for filing of separate reference petition. The counter claim is, therefore, nothing but a counter reference petition. It is not the case that the party submitting such counter reference has not followed the provisions regarding payment of Court fees on it as leviable under the rules. It is also within limitation. It is true that as required by the Regulations, a reference petition is to be filed in the Registry before the Registrar and then it is placed before the Bench. But merely for this reason it cannot be said that the Bench of the Tribunal which is competent to adjudicate the dispute cannot entertain a reference directly. The Registrar in receiving the claim petition only discharges ministerial or administrative functions. The judicial function or powers of the Tribunal thereby are in a manner inhibited. Even if counter claim is held untenable, the opposite party was in any case entitled to file a counter reference petition for its claim and dispute. In such a situation where two petitions or claims on same works contract have been filed, it would be in the interest of justice and fair procedure for the Tribunal to have clubbed them for a joint trial. If a counter reference could be filed by the opposite party which could be linked for trial and disposal by the Tribunal with the pending reference of the contractor, we find no logic or reason why the reference tenable at the instance of opposite party cannot be entertained in the same pending reference as a counter reference on payment of the requisite Court fees on it and within the prescribed period of limitation.

In our considered view, therefore, the Tribunal committed no error permitting the respondent -State to prefer a counter claim and in deciding same on the basis of finding reached by it.

(2.)Now the facts of the present case may be seen. Respondent contractor was awarded a contract for the construction of Right Earthen Bund from R.D. 430 to 1194 at ground level and R.D. no. 510 to 1194 m. on top right flank of Kolar Pick -up -weir. The work order was issued on 14.8.1980 and the stipulated period of completion was of 15 months including rainy season and the stipulated date of completion of work was 13.11.1981. The respondent executed total work worth of Rs. 80,000/ - during stipulated period and he had not applied for extension of time and the petitioner by order dated 19.11.1981 Ex. P -9 took the unexecuted work out of the hands of the respondent for completion by another agency on extra cost to be borne by the respondent. The petitioner got completed the balance work by another contractor.
The respondent claimed Rs. 4,41,594/ - as compensation for breach of the contract by the petitioner. The respondent alleged that the respondent could not complete the work because of the defaults, delays and failure on the part of the petitioner and claimed aforesaid amount on various heads, and filed a reference before the Arbitral Tribunal.

The petitioner filed a written statement before the tribunal and denied the claim of respondent. The petitioner also claimed Rs. 8,96,588/ - by way of counter claim after adjustment of the amount of final bill and security deposit of the respondent.

(3.)The tribunal after recording evidence and hearing both the parties found that there was no breach of contract on the part of the petitioner with regard to failure to provide the approach road from Rahti to work site and the respondent abandoned the work by letter dated 14/10/1981. The tribunal found that the department had properly rescinded the contract under Clause 4.3.3.3 of the agreement and the petitioner measured the work of the respondent and got completed unexecuted part of the work through debitabled agency in which extra expenditure was paid. The tribunal found that the respondent is entitled for Rs. 7,682/ - towards the payment of final bill and for refund of Rs. 2,964/ - deducted as security deposit from running bills and also for return of bank guarantee of Rs. 18630.
The claim lodged by the petitioner was rejected on the ground that the counter claim was not maintainable as no notice of quantified amount was served on the contractor. This part of the order is assailed by the petitioner in this petition.

It would be pertinent to mention here that the contractor/respondent has not preferred any revision against the impugned order by which the contractor's claim was allowed in part and rejected substantially. The respondent has also not challenged a finding recorded in para 24 of the order in which respondent had not pressed plea of limitation before the Arbitral Tribunal, in respect of the counter claim lodged by the petitioner.

Now in light of the aforesaid facts, the contention of the parties may be seen:

The petitioner's case is that before filing counter claim, a notice Annexure A/8 dated 19.11.1981 (at page 89 of the paper book) was issued to the respondent by which the respondent was informed that during six months, respondent had executed only 3% of the work and had violated clause 4.3.24.3 of the contract and also abandoned the work at his own accord and had therefore, became responsible to compensate the department under Clause 4.3.3.3 of the agreement. The contention of the petitioner is that the aforesaid notice was sufficient to raise a dispute and in the counter claim, a specific dispute of ascertained sum was raised. Apart from this, under Section 7 -B of the Act, there is a provision to approach the final authority under the agreement and the petitioner approached to the Superintending Engineer by lodging a claim. The petitioner had already approached the final authority and filed counter claim before the tribunal claiming ascertained sum of Rs. 8,96,588/ -. In para 20, 21, 22 of the counter claim, the aforesaid claim before the tribunal was of ascertained sum as defined in Section 2(1)(d) of the Adhiniyam and it was not necessary to the petitioner to state this amount in the notice. The entire purpose of the notice is to inform the respondent generally of the nature of the claim intended to be filed. The petitioner in the notice had specifically stated the breach of the contract by the respondent in particular the clauses 4.3.24.3 and 4.3.3.3 of the contract, so the notice was sufficient. There is no requirement in the Adhiniyam to issue a particular type of notice and the notice is to be interpreted in accordance with law in real sense and not in pedantic manner and the tribunal erred in rejecting the counter claim of the petitioner.

The contention of the respondent is that in the notice, it was necessary to quantify the claim as it is necessary to invoke the jurisdiction of the tribunal to demand by notice ascertained sum of money and only if it is denied by the respondent, then it will fall within the purview of the "dispute".