- (1.) COUNSEL appearing for the petitioner submitted that in pursuance of clause no. 22 of the agreement between the parties, the arbitration ought to have been initiated by the Superintending Engineer. This has not been started and therefore, the present application has been preferred.
(2.) COUNSEL appearing for the respondents submitted that there is no arbitration clause and therefore, the matter deserves to be dismissed. Having heard counsel for both the sides and looking to clause no. 23 of the agreement between the parties, which is at Annexure 4 and 5, there is an arbitration clause. The said clause no. 23 reads as under: "Clause 23: In case any dispute or difference shall arise between the parties or either of there upon any question relating to the meaning of the specifications, designs, drawings and instructions here before mentioned or as to the quality of workmanship or materials used on the work or as to the construction of any of the conditions or any clause or thing there in contained or as to any question, claim, rights of the parties, or any matter, or things whatsoever in any way arising out of or relating to the contract designs, drawings specifications, estimates, instruction order of these conditions or otherwise concerning the work or the execution, or failure to execute the same whether arising during the progress of the work of alter the completion or abondment thereof or as the breach of those contract then either party shall forthwith give to the order notice of such dispute or difference and such dispute or difference shall be referred to the Superintending Engineer of the circle and his decision there on shall be final, conclusive and binding on all the parties."
(3.) IT has been held by the Division Bench of this Court in the case of M/s Sharda Construction Vs. The State of Jharkhand & Ors. reported in 2005(1) JLJR 162 especially in paragraph nos. 8, 19 and 20, which read as under: "8. Admittedly, in Form F2 contract entered into between the parties there is an arbitration clause as clause 23 which read as under: "In any case dispute or difference shall arise between the parties or either of there upon any question relating to the meaning of the specifications, designs, drawings and instructions herein before mentioned or as to the quality of workmanship or materials used on the work, or as be the construction of any of the conditions or any clause or thing there is contained, or as to any question, claim, rights 2. on liabilities of the parties, or any clause or thing whatsoever, in any way arising out of, or relating to the contract designs, drawing, specification, estimates, instructions order, or these conditions, or otherwise concerning the work, or the execution, or failure to execute the same whether arising during the progress of the work, or as to the breach or this contract, then either party shall forthwith give to the other notice of such dispute or difference and such dispute or difference shall be referred to the Superintending Engineer of the circle and his decision thereon shall be final conclusive and binding on all the parties." 19. In the light of the law laid down by the Supreme Court, in my considered opinion, learned Chief Justice has erred in law in adjudicating upon the question of existence and validity of the Arbitration Agreement contained in the contract. As noticed above, prima facie there is an arbitration clause contained in the contract entered into between the parties. The stand of the petitioner is that neither the notification deleting the arbitration clause was communicated by the respondents nor the petitioners were aware about the deletion of arbitration clause by Gazette Notification. On the other hand, the stand of the respondents is that Clause 23 of the Contract which is the arbitration clause stood deleted by the gazette notification in the year 1992 but because of inadvertence such clause was not struck out from the contract. In my opinion, all these questions relate to existence and validity of arbitration agreement is to be adjudicated upon only by Arbitral Tribunal. it is beyond the power of the learned Chief Justice to have gone into these questions and adjudicate upon the issue of existence and validity of the Arbitration Clause. 20. Admittedly, Clause 23 which is the arbitration clause exists in the contract entered into between the parties. The said contract is not a statutory contract which was signed by both the parties. Whether the arbitration clause in the said contract which has no statutory force, can be said to have been deleted merely because of some executive order issued by the Government by a notification, is also an issue to be considered while deciding the existence and validity of the arbitration agreement contained in the said contract. In my considered opinion, therefore, the finding of the learned Chief Justice on this issue is wholly without jurisdiction." ;