SHAMSUDDIN AHMED, J. - (1.) THE short question that crops up for determination in this revisional application is if in terms of clause 13 approval in West Bengal Form No. 2908, Department of Public Works, Tender for supply of materials, reading as 'in the event of a dispute the decision of the Superintending Engineer of the Circle shall be final' constituted an arbitration agreement.
(2.) THE parties herein entered into an agreement for supply of materials and the said agreement is embodied in the form referred to above. THE opposite parties supplied the materials in question as directed and as an amount of Rs. 2, 50, 000/- was not paid, they invoked clause 13 of the said agreement and asked the Superintending Engineer to enter into an arbitration. As it was refused they filed Judicial Misc. Case No. 37 of 86 in the court of the Assistant Dist. Judge, Alipore for referring the dispute to arbitration by Mr. H.B.Lahiri, a retired Superintending Engineer, Construction Board, Directorate of Public Works Department as Arbitrator to settle the dispute. THE State appeared and contended that there was no arbitration clause and therefore the question of appointment of an arbitrator does not arise. THE Id. Trial Judge construed clause 13 as an arbitration agreement and allowed the application. THE aforesaid order is under challenge before us. Mr. Mukherjee appearing for the petitioners submitted that clause 13 does not constitute an arbitration agreement. He has submitted that the dispute referred to in clause 13 must be read along with the other conditions dealt with in the aforesaid clause 13, and if so read it does not imply that the, provision was made for arbitration of the claim of the contractor. A close reading of clause 13 will reveal that Engineer in charge was given power to make alterations, omission, additions etc. of the original specifications, drawings dealings etc. and the contractor was bound to supply the materials in accordance with any instruction which may be given to him in writing by the Engineer in charge. The articles to be supplied under such instruction shall be supplied on the same conditions in all respects on which the contractor agreed to do the main work and at the same rates as are specified in the tender. The time for completion of the supply shall be extended in proportion to the altered, additional and substituted quantity of materials in the proportion of the main order of supply. The clause also provides that in the event of the materials ordered could not be supplied what measures ought to be taken and also the rates at which such materials has to be supplied in terms of the order of the Engineer in charge. It concludes by stipulating that in the event of the dispute the decision of the Superintending Engineer of the Circle shall be final. On perusal of the form which contained the contract between the parties will appear that clause 13 regulates the supply to be made, prices of the materials to be charged and any other matters connected therewith. Other clauses do not deal with the amount, quantity, quality of materials supplied or specifications thereof. Mr. Mukherjee submits that the last sentence in clause 13 regarding decision of dispute between the parties must relate to the action taken by the Engineer in charge. It has no reference to the ultimate claim to be made by the contractor if he has any claim in respect of materials supplied by him, he can file a suit for recovery of the amount. According to him since there was no arbitration agreement the question of arbitration does not arise at all.
(3.) MR. Deb, Id. advocate appearing for the opposite party on the other hand contended that the agreement as embodied in clause 13 clearly stipulates that in the event of dispute the matter has to be decided by the Superintending Engineer and his decision shall be final. This clause according to MR. Deb constitute an arbitration clause.;