J.V. Gupta, J. - (1.) The Appellant Punjab Pre -stressed concrete works i.e. the contractor entered into an agreement under which the Appellant -Company was employed to execute certain works for M/s. Punjab Comcast Steels Ltd. In accordance with the terms of the agreement, the contractors executed certain works. Lateron, certain dispute has arisen between the parties and in view of Clause 25(1) of the agreement, the matter was referred to the Arbitrator as provided therein. Since the said Arbitrator could not decide the dispute between the parties, another reference was made to the President, for the time being, of the Institute of Engineers (India) as provided in Clause 5(1) and consequently, the matter was again referred to the Arbitrator. The Respondent M/s. Punjab Concast Steels Ltd., challenged the said reference under Sec. 33 of the Arbitration Act for declaration that there exists no arbitration agreement and there is no valid reference to Respondent No. 2, i.e. Shri Jiwan Dutt, Retired Engineer. It was alleged therein that since the work had been completed in October, 1973, no reference could be made to the Arbitrator after completion of work and, therefore, the appointment of the Arbitrator was unwarranted. This applications was contested on behalf of the Appellant -Company. Learned Senior Sub Judge took the view that in the present case the work had already been completed and so the arbitration clause ceased to be operative between the parties and resort to it could not be made by the contractors. As a result of these finding, it was declared that there is no subsisting arbitration agreement between the parties and thus, there is no valid reference of the arbitration. Dissatisfied with the same, the contractors have filed this appeal in this Court.
(2.) The main controversy between the parties centers round the interpretation of Clause 25(1) of the agreement which is reproduced as under: If any dispute of any kind shall arise between the employer and the Contractor during the 'Execution' of the Contract, it shall be referred to and settled by the Engineer who shall state his decision in writing and will be binding on both the employer and Contractor until the completion of the work and shall forthwith be given effect to by the Contractor who shall proceed with the work with all due diligence. If the Engineer shall fail to give his decision or if the Employer or the Contractor be dissatisfied with any such decision of the Engineer, then and in any such case either the Employer or the contractor may within three calender months from the date of the Engineer's decision or six calender months from the date of dispute in case of the Engineer failing to give a decision within three months after being requested to do so, require that the matter shall be referred to an arbitrator to be agreed upon between the parties or failing agreement to be nominated on application of either party by the President of the time being, of the Institution of Engineers (India) and any such reference shall be deemed to be a submission to arbitration within the meaning of the Indian Arbitration Act, 1940, or any Statutory re -enactment or amendment thereof for the time being in force. Such Arbitrator shall have full power to open up and review the matter including receiving necessary evidence and or witness from the Employer, Contractor and Engineer as required. The award of the arbitrator shall be final and binding on the parties.
(3.) The learned Counsel for the Appellant contended that the view taken by the learned Senior Sub Judge that the reference could only be made during the pendency of the work and not after its completion, was wholly wrong, illegal and misconceived. According to the learned Counsel, if dispute of any kind arises during the execution of the contract, it shall be referred to and settled by the Arbitrator. The Clause 25(1) does not mean that reference could only be made during the pendency of the contract and not after its completion in support of his contention, he referred to Chatturbhuj Vithaldas Jasani v/s. Moreshwar Parashram : A.I.R. 1954 S.C. 236, and M/s. Ram Lal Jagan Nath v/s. Punjab State through Collector, Hissar : A.I.R. 1966 P&H 436 (F.B.) (Full Bench).;