P.C.JAIN, J. - (1.) THE appellants -petitioners have filed this appeal under Section 13(1)(iv) of the India Arbitration Act, 1940 (for short that Act) against the judgment of Shri Amar Singh Godara, learned Addl. Distt. Judge No. 1, Hanumangarh dated 30.6.1981 passed in Civil Misc. Application No. 40/78, whereby the learned Addl. Distt. Judge allowed the application filed by the respondent under Section 20 of the Act and made an order of reference of the dispute to the arbitration in terms of Clause (19) of the agreement to have been executed between the parties.
(2.) THE relevant facts, in so far as they are relevant for the disposal of this appeal, may be stated as follows. The respondent, a statutory body, invited tenders for appointing a contractor for loading/unloading and transportation of foodgrains etc. In and round Hanumangarh town for a period of two years from 1.5.75 on the conditions mentioned in the notice inviting tenders. It is alleged that Shri Balkishan appellant, on behalf of the partnership firm M/s. Heera Lal Ramji Lal Industrial Mills, Hanumangarh Town, submitted his tender quoting the rate 231% above the scheduled rates to the Senior Regional Manager, Jaipur of the Corporation by putting his signature as also the seal of the firm alongwith a DD No. H 0968482 dated 14.2.75 of a sum of Rs. 3,000/ -. On scrutiny the rates of tender quoted by the appellant Shri Balkishan on behalf of the above partnership firm were found the lowest. The Corporation respondent, therefore, accepted the tender submitted by Shri Balkishan in the aforesaid manner for the contracted period of two years and the above firm was appointed contractor for execution of the above work. Information of this acceptance was conveyed by telegram to the appellant firm on 4.3.75. Vijay Kumar, partner of the appellant firm, by his letter dated 13.3.75 acknowledged the receipt of the acceptance. In pursuance of the compliance of the formalities asked by the Corporation, Shri Vijay Kumar sent a DD of Rs. 3,000/ - on 12.3.75. Regarding the remaining amount of earnest money namely, Rs. 3,000/ -, Shri Vijay Kumar put in an application praying that the above amount may be adjusted from the payment to be made by the Corporation to the above firm. Shri Vijay Kumar further sought 15 days' time to produce the copy of the partnership deed and the other documents. Accordingly, the copy of the partnership deed dated 24.3.75, Income -Tax Certificate and other documents were filed in the office of the Corporation. After completion of the above formalities, the appellant firm comenced the work but the appellant firm committed breach of the conditions of the contract and did no work for the period from 8.11.75 to 30.4.77. The Corporation, therefore, by telegram dated 15.11.76 and letter dated 4.12.75 asked the appellant firm to complete the above work as per the terms of the contract. It is alleged that despite the above notice that plaintiff firm did not commence the execution of the above work for the above period. The Corporation was, therefore, obliged to rescind the contract and forfeit the security of Rs. 6,000/ - deposited by the appellant firm for due performance of the work. It is further alleged that on account of the appellant firm backing out from its obligation to perform the above contract, Corporation had to engage other agencies to undertake the above work for the above period and in that connection, the Corporation incurred a loss of Rs. 1,47,595/ -. The Corporation raised the above demand and asked the appellant firm to reimburse the former for the above loss by a registered notice. The plaintiff firm, however, did not care to reply to the notice and the demand was also not respected. The Corporation, therefore, invoked the arbitration clause No. 19 of the agreement between the parties. The Corporation, by notice, asked the firm to comply with the above condition for appointing of an arbitrator, but, the latter did not reply. The Corporation, therefore, filed an application under Section 20 of the Act before the learned Addl. Distt. Judge No. 1. The Corporation authorised the District Manager, Sri Ganganagar to present the above petition. It may be stated that in the above application, the respondent has arrayed Ms. Heera Lal Rami Lal Industrial Mills, Hanumangarh (registered partnership firm) as non -petitioner No. 1 and Balkishan, Ramji Lal, Vijay Kumar, Banwari Lal and Jagdish Prasad as partners of the above firm. The above application was stoutly resisted by the non -petitioners. It was specifically and categorically denied that the non -petitioner firm ever entered into any contract with the petitioner Corporation or executed the above agreement. There is a total denial of the case of the petitioner. It was further averred that Shri Balkishan was neither a partner nor was he authorised by any partnership firm to enter into a contract with the Corporation in respect of the above work on behalf of the firm. The defendant further challenged the maintainability of the application on the ground that the District Manager was not authorised and competant to present the application under Section 20 of the Act on behalf of the Corporation.
(3.) NOW , I may make a brief reference to the documents produced before the learned Add. Distt. Judge: (1) Agreement regarding the above work executed by Shri Balkishan on behalf of M/s. Heera Lal Ramji Lal Industrial Mills alongwith relevant annexures. (2) Letter dated 13.3.75 of Shri Vijay Kumar Gupta, Partner of the above firm by which a sum of Rs. 3,000/ - was deposited as security for due performance of the contract and a prayer was made authorising the Corporation to deduct the remaining Rs. 3,000/ - from the further payments made to the above firm for the execution of the work. (3) Copy of the telegram conveying acceptance of the Corporation to the tender submitted by Shri Balkishan on behalf of the above firm. (4) Letter dated 24.5.75 on the letter -pad of M/s. Heera Lal Ramji Lal Industrial Mills signed by Shri Balkishan as partner by which the Income -Tax Clearance Certificate was submitted to the Corporation, (5) Letters and notices sent to M/s. Heera Lal Ramji Lal Industrial Mills conveying the breach of contract committed by the above firm and asking to resume the same and/or to compensate the Corporation for the loss incurred by it as a result of the breach of the contract committed by the firm. (6) Telex message sent by the Corporation authorising the District Manager, Sri Ganganagar to file an application under Section 20 of the Act and to take necessary and legal steps in that regard. (7) Copy of partnership deed dated 24.3.75 executed between Banwarilal, Balkishan and Jagdish Prasad with regard to the execution of the contract in question. This is a true copy attested by the District Manager, Food Corporation of India, Sri Ganganagar. The copy does not contain any endorsement whether this document was registered or not. (8) Another deed of partnership dated 15.3.70 made between Kailashchand, Vijay Kumar, RajmiLal, Banwarilal, Balkishan and Jagdish Prasad. Under this partnership deed the name and style of the firm has been shown as M/s. Kailashchand Industrial Mill. (9) Copy of certificate issued by Registrar of Firms, Rajasthan, Jaipur certifying that M/s. Kailashchand Industrial Mill, Hanumangarh was duly registered in pursuance the provisions of the Indian Partnership Act, 1932. Obviously it has got reference to the partnership deed dated 15.5.70. 5. I may also refer to the proceedings taken by the learned Addl. Distt. Judge. The order sheet dated 11.7.70 shows that on that day all the non -petitioners filed reply to the petition filed by the Corporation, the presiding officer was out in connection with tendering evidence in some case. The case was then fixed for arguments. Thereafter, the case was adjourned from time to time for arguments. Eventually, arguments were heard and the case was decided. What I want to mention is that neither of the parties exercised its legal right to produce evidence. The Court also did not ask the parties whether they want to produce any evidence or not. It may further be pointed out that even in the memo of appeal or during arguments no such grievance was made. Before the learned Addl. Distt. Judge, the non -petitioner vehemently challenged the maintainability of the application on the ground that the District Manager, Sri Ganganagar was neither competant nor authorised to present the above application on behalf of the Corporation. The learned Addl. Distt. Judge, however, relying on the telex message, held that the presentation of the application was in accordance with the provisions of law. ;