Hemant Gupta, J. - (1.) Challenge in the present revision petition is to the order passed by the learned first Appellate Court on 10.5.1997, whereby an application filed by the petitioner for filing of the arbitration agreement and referring the dispute to the Arbitrator in terms of the agreement was declined.
(2.) M/s Haryana State Minor Irrigation and Tubewells Corporation Ltd. (hereinafter referred to as 'the Corporation') invited tenders for the work and of design, fabrication, supply, erection, testing and commissioning of hoists and gantry crane for Massani Barrage Project.
(3.) The tender submitted by the petitioner being lowest was accepted and a purchase order dated 7.1.1988 was issued. In terms of the purchase order, the petitioner was to submit designs/drawings for approval in respect of hoists including lifting arrangement by April, 1988 and in respect of gantry crane including lifting arrangement and rails by June, 1988. The contract was to be completed by July, 1989. Subsequently, an agreement was executed on 14.3.1988 having conveyed the acceptance of such purchase order. It is admitted that such an agreement contains Clause 36 pertaining to reference of disputes to the sole arbitration of the person appointed by the Corporation. The said clause reads as under: 36. ARBITRATION Except where otherwise provided for in the contract, all questions, disputes or differences, whatsoever, arising between the Contractor and the Corporation upon or in relation to or in connection with this contract, either of the parties may give to the other notice in writing of the existence of such a question, dispute or difference and the same shall be referred to the Sole Arbitration of the person appointed by the Corporation at the time of dispute. There will be no objection in such appointment, if the Arbitrator or so appointed is a Corporation employee and in the course of his duty as Corporation employee, has expressed view on all or any of the matter 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, then the Corporation 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 stage at which it was left by his predecessor. Subject to aforesaid, the provisions of 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 proceedings under this Clause. The Arbitrator shall decide in what proportion the Arbitrator's fees, as well as the cost of Arbitrator proceedings shall be borne. The Arbitrator with the consent of the parties may enlarge the time, from time to time, to make and publish his award. A notice of the existence of any question, dispute or difference in connection with this contract, shall be served by either party within 180 days of the issue of taking over certificate by the Engineer -in -Charge, failing which all rights and claims under this Contract shall be deemed to have been forfeited and absolutely barred. Where the amount of claims in dispute is Rs. 50,000/ - (Rupees Fifty Thousand Only) and above, the Arbitrator shall give reason for the award. The work under this contract shall continue during Arbitrator proceedings and no payment due from or payment by the Corporation shall be withheld on account of such proceedings except to the extent which may be in dispute.;