- (1.) This application has been preferred for referring the dispute between the parties to an Arbitrator in pursuance of clause 23 of an agreement entered into between the parties. The said agreement is at Annexure 1 to this memo of this application. Counsel appearing for the applicant submitted that this clause cannot be deleted by the respondent-State Authorities and is relying upon the decision rendered by this Court reported in : [2004(4) JCR 786(Jhr.)][: 2005(1) JLJR 162] and has submitted that this type of clause cannot be deleted from the contract by the respondents and hence, the dispute between the parties may be referred to an Arbitrator.
(2.) Counsel for the respondents submitted that the Government has power, jurisdiction and authority to delete the clause prior to the agreement entered into. Clause No. 23 which is an arbitration clause was deleted and thereafter, it was signed also by the parties to the agreement. This clause No. 23 was never inserted from the very beginning and there was no concensus ad idem for the arbitration clause at all and hence, the dispute between the parties cannot be referred to an Arbitrator and the only remedy available with this applicant is to file suit before the lower court under Section 15 of the Code of Civil Procedure.
(3.) Having heard counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this arbitration application mainly for the following facts and reasons:-- "(i) This applicant had entered into a contract with the respondents. The contract given to this applicant was for construction of Tourist Information Center at Hazaribagh, State of Jharkhand. The agreement entered into between the parties is at Annexure-1 to the memo of this application. (ii) Clause No. 23 upon which the arguments has been canvassed by the counsel for the applicant that this is an arbitration clause, but, the same was deleted by the Government and thereafter, the signature was put by this applicant meaning thereto there was no arbitration clause at all in the agreement between the parties. Once the arbitration clause has been deleted and the parties have signed meaning thereby that the dispute between the parties cannot be referred to an Arbitrator under sub-section 6 of Section 11 of the Act, 1996. (iii) Looking to the agreement entered into between the parties, there is no arbitration clause at all and hence, the dispute between the parties cannot be referred to the Arbitrator. (iv) Counsel appearing for the applicant submitted that the clause No. 23 cannot be deleted by the respondents and has relied upon the decision rendered by this Court as stated hereinabove. This Court is not in agreement with this contention raised by the counsel for the applicant mainly for the following reasons:-- (a) In the facts of that reported decision, there was an arbitration clause initially. Later on the said arbitration clause was deleted by some notification or circular. This subsequent notification or circular was under challenge and therefore, the aforesaid decision was rendered by this Court which is reported in : 2004(4) JCR 786 whereas, in the facts of the present case the arbitration clause was deleted first and thereafter it was signed by the parties to the agreement. Thus, from the very beginning in the agreement between the parties there was no arbitration clause at all. These facts make the present case different from the facts of that reported decision and hence, the said judgment is not. helpful to this applicant. (b) Looking to the facts and circumstances of the case it appears that the Government had never inserted arbitration clause from the very beginning. The Government has all power, jurisdiction and authority not to insert arbitration clause. Moreover, once the clause is deleted and thereafter it is signed by the parties to the agreement means there was no Concensus ad idem for arbitration clause. Once there is no arbitration clause at all in the agreement the dispute between the parties cannot be referred to an Arbitrator under sub-clause 6 of Section 11 of the Act, 1996 and the parties have no option, but, to choose any other forum and can initiate appropriate proceeding in accordance with law. (v) Counsel for the applicant further submitted that even if there is dispute about the existence of the arbitration clause, the dispute ought to be referred to an Arbitrator. This attractive argument is not accepted by this Court mainly for the reason that in the facts of the present case there is no arbitration clause from the very inception or from the very beginning. There is no question whatsoever arises that the existence of the arbitration clause is doubtful. In fact, this applicant is challenging the power, jurisdiction and authority of the State that such type of clause must have been inserted into the agreement and in no circumstance, Government can delete the same. This type of argument is also not accepted by this Court mainly for the reason that once the agreement is signed by the parties to the agreement and prior thereto there is a deletion of such clause No. 23, this Court cannot refer the matter under sub-section 6 of Section 11 of the Arbitration and Conciliation Act, 1996 to an Arbitrator. For referring the matter to an Arbitrator, existence of Arbitration clause is must." As a cumulative effect of the aforesaid facts and reasons, there is no sub-stance in this arbitration application and hence, the same is hereby dismissed.;