A.N. Sen, J. - (1.) This proceeding has been instituted under Sec. 20 of the Arbitration Act for an order that the arbitration agreement be filed in Court and also for an order that an Arbitrator be appointed by the Court.
(2.) The facts relevant for the purpose of this case may be briefly stated. Indian Refineries Limited, a company within the meaning of the Companies Act, 1956 and a Government of India undertaking, had been carrying on business at Gauhati. Tenders had been invited on behalf of the General Manager, Indian Refineries Limited for the work of construction of 100 Nos. 'D' type quarters in sector 1 of the permanent township of the said company at Noonmati, Assam, and in pursuance to the said invitation to tender, M/s. N. Guin & Co. (P.) Ltd., the Plaintiff in the present proceeding, submitted a tender for the said work and it also paid a sum of Rs. 32,210 to the said company being the earnest and/or security money for the said work in terms of the said invitation to tender. By an agreement dated November 4, 1963, between the said Indian Refineries Limited, Noonmati, Gauhati described as the first party of the one part and M/s. N. Guin & Co. (P.) Ltd. called the second party of the other part, the said work was entrusted to the Plaintiff and it was, inter alia, agreed by and between the parties as follows: (1) In pursuance of the. invitation of tender by the first party as described above and the submission of tender by the second party and acceptance thereof by the first party as described above, the second party agrees to execute the work as per description, quantity, rates and specifications mentioned in Annex. 'B' (pp. 5 to 7) including Annex. 'B -1' (pp. 1 to 13) and Annex. 'B -3' (one page) and as per Annex. 'C' (pp. 11 to 15) together with Annex. 'D' (pp. 1 to 9) and as per the terms and conditions laid down in the printed booklet 'General Conditions and Conditions of Contract for Works on Item Rate Tender' attached herewith as Annex. 'E' (pp. 1 to 20) with the condition that the entire work will be completed to the satisfaction of the first party in accordance with the schedule of time mentioned in Clause 2 at p. 3 of Annex. 'E' (General Conditions of Contract) and completing the same within a period of eight months calculated from the 10th day after the date of written order to commence the work. (2) The first party hereby agrees to make payments in accordance with the terms, conditions, rates etc. mentioned in the annexures attached hereto. (3) It is also agreed between the parties that certain materials mentioned in Annex. 'F' (pp. 8 to 10) attached hereto will be issued by the first party to the second party at the prices and under the terms and conditions described therein and the conditions for the issue of materials attached thereto. The costs of materials issued to the second party will be deducted from his bills or any of his other dues. (4) Decision of the General Manager of the Indian Refineries Limited, Gauhati, on matters relating to or arising out of this agreement shall be final, conclusive and binding on the parties.
(3.) Clause 25 of the 'General Conditions and Conditions of Contract for Works on Item Rate Tender' referred to in Clause 1 hereinbefore stated contains an arbitration clause and is to the following effect: Clause 25. 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 whatsoever, in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instruction, orders or these conditions or otherwise concerning the works, or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof inclusive of disputes as to the scope and effect of settlement of any claims under the contract by agreement and the liability attaching on breach of such settlement shall be referred to the sole arbitration of the General Manager of the company and if the General Manager is unable or unwilling to act to the sole arbitration of some other person appointed by the General Manager, willing to act as such arbitrator. It will be no objection to any such appointment that the arbitrator so appointed is a servant of the company and that he had to deal with the matters to which the contract relates and that in the course of his duties as servant of the company he had expressed views on all or any of the matters in dispute or difference. The arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason, such General Manager as aforesaid at the time of such transfer, vacation of office or inability to act, shall appoint another person to act as arbitrator in accordance with the terms of the contract. Such person shall be entitled to proceed with the reference from the state at which it was left by his predecessor. It is also a term of this contract that no person other than a person appointed by such General Manager of the company as aforesaid should act as arbitrator and, if for any reason that is not possible, the matter is not to be referred to arbitration at all. The award of the arbitrator so appointed shall be final, conclusive and binding on all parties to the contract. Subject as aforesaid the provisions of the Arbitration Act, 1940, or any statutory modification or re -enactment thereof and the rules made thereunder and for the time being in force shall apply to the arbitration proceeding under this clause.;