H.R.PANWAR, J. - (1.) THIS appeal is directed against the order dated 06.04.1998 passed by learned District Judge, Jodhpur in Arbitration Case No. 2A/1998 whereby the learned District Judge dismissed the petition filed by the appellant under Section 11 of the Arbitration and Conciliation Ordinance, 1996 (hereinafter referred to as 'the Ordinance of 1996') -
(2.) I heard learned counsel for the parties. Perused the order impugned and the record. It is submitted by the learned counsel for the appellant that the appellant was granted contract Agreement No. 4/EE/ICD/94 -95 by the respondents for construction of CPWD Office Building and Inspection Bungalow Building at Jodhpur. He submitted that after the payment of final bill, certain items remained undecided for which a dispute arose, which was required to be decided by the arbitrator, therefore, the appellant filed an application under Section 11 of the Ordinance of 1996 before the learned Trial Court seeking for appointment of arbitrator. The said application was rejected by the Trial Court on the ground of being filed beyond the period of limitation provided under Clause 25 of the said contract agreement. The Trial Court further held that there is no arbitrable dispute between the parties and on that count also the application filed by the appellant under Section 11 of the Ordinance of 1996 was rejected. It was contended by the learned counsel for the appellant that while making the payment of final bill on 30.01.1997 a sum of Rs. 55,000 were withheld under different heads by the respondents and were kept in abeyance for subsequent decision and thus, the payment made on 30.01.1997 cannot be said to be a payment of final bill. He further contended that in view of this, the period of limitation as provided in Clause 25 of the said contract agreement would not run from the date of payment of final bill i.e. 30.01.1997. He further contended that the items which were withheld and not on merits at the time of publication of final bill were required to be considered subsequently and on its non -consideration, dispute arose between the parties. Thus, according to him there is arbitrable dispute. Clause 25 of the Agreement No. 4E/E/Jcb/94 -95 reads as under : 'Except where otherwise provided in the contract all questions and dispute relating to the meaning of the specifications, designs, drawings and instructions hereinbefore mentioned and as to the quality of workmanship of 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, instructions, orders or these conditions or otherwise concerning the words or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the sole arbitration of the person appointed by the Chief Engineer, CPWD incharge of the work at the time of dispute or if there be no Chief Engineer the administrative head of the said CPWD at the time of such appointment. It will be no objection to any such appointment that the arbitrator so appointed is a Government servant that he has to deal with the matters to which the contract relates and that in the course of his duties 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 Chief Engineer or administrative head as aforesaid at the time of such transfer, vacation of office or inability to act, shall appoint another person who shall be entitled to proceed with the reference from the stage 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 Chief Engineer or administrative head of the CPWD 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. In all cases where the total amount of all the claim in dispute is Rs. 75,000 (Rs. Seventy Five Thousand Only) and above the arbitrator shall give reasons for the award.' 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 proceedings under this clause.
(3.) IT is also term of the contract that the party invoking arbitration shall specify that dispute or disputes to be referred to arbitration under this clause together with the amount or amounts claimed in respect of each such disputes.;