- (1.) THIS is an application under Sections 5, 11 and 12 of the Arbitration Act, 1940. The facts are as follows : In respect of the Contract entered into by the petitioner and the respondent State of West Bengal in connection with the work for "land development of 50 acres of land in Rehabilitation Colony" at Durgachak, Haldia, tender No.6SE(A) of 1981-82 Group A, submitted by the petitioner has been duly accepted. The contract was subject to the general conditions of the contract in which there was an arbitration agreement being clause 25, as set out in paragraph 3 of the petition.
(2.) AS disputes and differences arose between the parties, the petitioner asked the Chief Engineer to refer such disputes to arbitration. AS that was not done, an application under S. 8 of the Arbitration Act was filed. After hearing both the parties, Shyamal Kumar Sen, J., by his order dated 21/07/1989 directed the Chief Engineer of the respondent No.1 to nominate an arbitrator in terms of the arbitration agreement, within four weeks from the date of communication of the order. The Chief Engineer, by his order dated 21/07/1989, communicated by the Memo dated 17/08/1989, appointed the respondent No.4 as the sole Arbitrator for settling the disputes as referred by the petitioner, arising out of the said contract. The said appointment was only for the settlement of the claims raised and referred to by the petitioner and prior thereto there existed no assertion of claim by the respondent No.1 on the petitioner. The petitioner submitted a statement of facts. As the claim which was made in the said statement of facts was slightly higher than the statement of claim which was referred to for adjudication by the Arbitrator, the Arbitrator directed the petitioner to conform his claim to the terms of reference.
(3.) ULTIMATELY on 22/01/1990 the petitioner withdrew the excess claim and indicated that he would agitate the claim of Rs. 8,15,140/ -. On 9/02/1990 the respondent No.1 filed its counter-statement of facts denying each of the claim of the petitioner. That apart the respondent No.1, in the said counter statement of facts raised and pleaded a counter-claim of Rs. 8,17,000.00 against the petitioner and sought. for an award against the petitioner as per the said counterclaim, although at no point of time the respondent No.1 ever asserted any claim on the petitioner for which the respondent No.1 was precluded from raising any counter-claim against the petitioner.;