- (1.) ORDER :-
(2.) THIS is an application u/Ss. 11 and 12 of the Arbitration Act, 1940 praying for revoking the authority of the Chief Engineer, Irrigation and Water-ways Directorate as sole Arbitrator and for appointment of a fit and proper person to act as Arbitrator in his place with like power to act in the reference and to make an award as he had been appointed in accordance with the Arbitration Agreement. The facts may be briefly stated as follows :- In response to an invitation by the respondent-State of West Bengal to tender for constructing a Linking Work of D.B.M.C. for C.N. 769 to C.N. 779.16 the petitioner submitted its tender for the said work and the said tender was accepted by the respondent-State of West Bengal by the letter dated 17/03/1978. The petitioner was asked to complete the work by 30/03/1979. The said accepted tender contains a clause being Clause No. 25 for settlement of dispute relating to any question, claim right, matter or things whatsoever in any way arising out of or relating to the contract for reference to the Sole Arbitration of the Chief Engineer of the Department of Directorate of Irrigation of Water-ways, Government of West Bengal or to any arbitrator appointed by him. The petitioner made every attempt to complete the work within the stipulated period but it could not be completed within the said period due to various default on the part of the respondent. With great difficulties the petitioner completed the said work on 12/06/1980 to the entire satisfaction of the respondent. The petitioner by his letter dated 12/04/1979 to the Executive Engineer, M.N.C. Division, Rampurhat claimed enhancement of tender rate for execution of the work during the extended period as the price of the materials and the rate of labour has been enhanced in the meantime. The petitioner by his letter dated 10/07/1980 to the said Executive Engineer lodged his outstanding claim as well as claimed interest at the rate of 18% per annum under the Interest Act. Thereafter, final bill was drawn by the respondent on 25/09/1980 and the same was paid on 6/06/1981. As the said final bill did not include all the dues payable to the petitioner, the petitioner by his letter dated 6/06/1961 to the Executive Engineer, M.N.C. Division, Rampurhat stated that the final bill amount was accepted by the petitioner without prejudice to its claim for realisation of his legitimate dues which was not included in his final bill. In the said letter the petitioner made a claim of Rs. 3,23,113.00 within thirty days from the day of his letter, in default of which it would be construed that dispute had arisen for which the petitioner would take step for having the dispute referred to arbitration. As no action was taken in terms of the said letter dated 6/06/1981, the petitioner by his letter darted 17/05/1984 to the Chief Engineer, Irrigation and Water-ways Directorate asked him to arbitrate the claim, a list of which was enclosed therewith and to refer the same to Arbitration within thirty days from the date of receipt of this letter. It was also indicated in that letter that if no appointment of Arbitrator was made within the time specified in that letter, it would be construed that he had accepted the office of the Arbitrator in which case he was asked to enter, into reference forthwith and in case nothing was heard from him within thirty days from the receipt of this letter the petitioner would file an application on the ground that he was neglecting and/or refusing to enter into reference. As nothing had been heard from the said Chief Engineer, the petitioner sent a reminder by the letter dated 8/02/1989 but the Chief Engineer neither appointed an Arbitrator in terms of Clause 25, nor did he himself enter into reference and has, therefore, failed and/or neglected and/or refused to act as such Arbitrator. In the circumstances, it is submitted that the authority of the said Chief Engineer as Arbitrator be revoked by this Court and a fit and proper person be appointed to act as Sole Arbitrator in place of the said Chief Engineer. The State of West Bengal filed an Affidavit-in-Opposition praying for dismissal of the application on the ground that this Court has no jurisdiction to entertain the present application as neither the contract nor the performance of the contract has arisen within the jurisdiction of this Court. It is also contended that the claim of the petitioner is hopelessly barred by limitation and that in the circumstances there was no necessity for appointing any Arbitrator to resolve the alleged dispute and claim. It is also contended that the Chief Engineer, Irrigation and Waterways Directorate is a necessary party.
(3.) IN course of hearing the petitioner has been directed to serve a notice upon the Chief Engineer, Irrigation and Water-ways Department and to add him as respondent No. 2 and to serve notice of this application upon the said Engineer, Thereafter, the petitioner has amended the cause title of the application and has added the Chief Engineer, Irrigation and Water-ways Directorate as respondent No. 2. The respondent No. 2 has also filed an Affidavit-in-Opposite in which it is contended that no letter dated 17/05/1984 addressed to the Chief Engineer, Irregation and Waterways Directorate is traceable in the records of the office and there is reason to believe that since no such leter was received in the office of the Chief Engineer, the question of taking any action in the said letter does not arise. It is further contended that since the demand for Arbitration was made only through letter dated 8/02/1989 by Contractors, the matter was being examined and before any decision could be taken the petitioner moved this Court. He has also adopted the statements made in the affidavit of Nabakumar Mondal submitted on behalf of the respondent No. 1. An Affidavit-in-reply has been filed on behalf of the petitioner contesting all the allegations made by the respondent in their Affidavit-in-Opposition.;