I BASHEER Vs. KERALA STATE HOUSING BOARD

JUDGEMENT

(1.) The plaintiff in O.S. No. 722 of 1991 on the file of Subordinate Judge's Court. Parur is the revision petitioner. This Civil Revision Petition is filed challenging an order passed by the Court below dismissing an application filed by the petitioner to refer the dispute arising for consideration in the suit for arbitration under Section 89 of the Code of Civil Procedure. During the pendency of the Civil Revision Petition, the petitioner died and his legal representatives were impleaded as additional petitioners 2 to 7.

(2.) The original plaintiff was a contractor. He entered into an agreement with the respondent Kerala State Housing Board for the construction of two blocks of EE7 and 2 blocks of CF6 type flats. The contract was terminated and the work was awarded to another contractor . The plaintiff filed the suit for a declaration that the termination of the contract by the defendant was unlawful and unsustainable and the forfeiture of security deposited was also unlawful. There was a prayer for recovery of an amount of Rs. 4,61,502.19 due under the final bill and an additional amount of Rs. 1,44,908/- as loss of profit or gains prevented. The respondent appeared and filed a written statement contending that the plaintiff was a defaulter and the defendant was compelled to terminate the contract and awarded the work at the risk and cost of the plaintiff. It was contended that the plaintiff was not entitled to get any amount, but amount were due to the Housing Board. The Housing Board filed O.S. 624 of 1993 against the original plaintiff for realisation of an amount of Rs. 11,50,279/-. The deceased revision petitioner appeared in that suit and filed a written statement denying his liability and reiterating his case in the suit filed by him. Both the suits are pending trial.

(3.) The deceased original revision-petitioner filed I.A. 2721 of 2002 under Section 89 of the Code of Civil Procedure stating that the dispute can be settled by appointing an Arbitrator. He had also filed a terms of reference proposed for settlement and prayed that the Court may be pleased to formulate the terms of settlement and refer the case for settlement of the issues in the suit by arbitration under Section 89 of the Code of Civil Procedure. The respondent opposed that prayer. It was contended that it was a matter to be decided after taking evidence and in case the disputes were referred to arbitration, that will cause irreparable loss and injury to the defendant-Housing Board. The learned Sub-Judge dismissed that application. The following is the order :-