- (1.) This appeal is directed against the order dated 9/11/1990 passed by the District Judge, Udaipur, by which the learned District Judge disposed of the application under Section 20 of the Arbitration Act, filed by the plaintiff.
(2.) Plaintiff M/s. Vijay Singh Amar Singh and Co. - Engineers and "AA-Class Contractors" - filed an application under Section 20 of the Indian Arbitration Act, 1940 (hereinafter referred as 'the Act') in the Court of the District Judge, Udaipur. It was averred in the application that the plaintiff was carrying on the business of engineers and contractor and it entered into a contract with the defendant M/s. Hindustan Zinc Limited (a Government of India Undertaking) on 15/12/1986, for the construction of Gosunda Dam on river Behdach (district Chittorgarh). After entering into the contract, the firm started the construction work as per the terms and conditions of the contract. According to the plaintiff, the contract created reciprocal contractual obligation, but the defendant M/s. Hindustan Zinc Limited failed to perform their part of the contract and committed several fundamental breaches of the contract hence the work could not progress according to the programme finalised, which increased the plaintiffs cost of executing the work. The plaintiff, also, suffered heavy losses on account of non-utilization of their resources, tools, plants machinery etc. and therefore they withdrew from the work. The defendant also, terminated the contract of the plaintiff for the balance work, allotted the contract to another agency, assessed the damages to the tune of Rs. 25,00,000.00 and issued a Demand for the same on 2/11/1989. The case of the plaintiff is that though the demand of Rs. 25,00,000.00 has been made by the defendant, but actually the plaintiff is entitled to recover Rs. 1,37,54,262.50 paise from the defendant on various counts mentioned in the application. The plaintiff further stated in the application that there is a Clause No.9 in the agreement relating to the arbitration and, therefore, in order to resolve the dispute, which arises out of the contract, the Managing Director of the defendant company may be directed to nominate sole arbitrator to resolve the dispute or, in the alternative, the Court may appoint any other person as arbitrator which the Court deems fit and proper. After filing of the application under Section 20 of the Act, reply was filed by the defendants on 27/10/1990, stating therein that in pursuance to the agreement dated 25/08/1987, arrived at between the parties, defendant N.2 appointed Mr. S.K. Shreemali, Senior Manager (Project), Chanderliya, as the sole arbitrator to resolve the dispute between the parties, who will give his award after giving an opportunity of hearing to the parties. It was prayed that in view of the appointment of Mr. S.K. Shreemali as the sole arbitrator, this application does not survive as the relief prayed for has already seen granted. The learned District Judge, by his order dated 9/11/1990, disposed of the application by observing that as the sole arbitrator has already been appointed in terms of the agreement, no further enquiry remains to be conducted and the, parties may appear before the sole arbitrator and get the dispute resolved. He, therefore, consigned the file to the record it is against this order dated 9/11/1990, disposing of the plaintiffs application under Section 20 of the Act that the plaintiff-appellant has preferred this appeal.
(3.) Heard learned counsel for the appellant and the learned counsel for the respondents.;