MOHINDER SINGH & CO Vs. EXECUTIVE ENGINEER, JAMMU & CENTRAL CONSTRUCTION DIVISION

JUDGEMENT

(1.) THIS is an application under Section 41 of the Arbitration Act read with Order 39, Rules 1 and 2 of the Code of Civil Procedure for issue of an injunction restraining the respondents from executing any items of work either departmentally or through other contractors on the Samba Batal Link road. The application recites that the contract of constructing Samba -Batal Link Road was sanctioned in favour of the petitioner for Rs. 78,83,287 -00 vide agreement No. 1/EE -Jammu of 1967 -68. The work was commenced by the petitioner on 15 -6 -1967 and completed on 30 -4 -1970; the original time for the completion of the contract was six months but the petitioner indicated in his letter dated 8 -5 -1967 that the construction would be delayed because of the late acceptance of the tender and consequent setting in of the Monsoon season; that due to defaults of the department in various manners, the time of completion was extended upto 30th April 1970 thus making time not the essence of the contract. The items of work to be done by the petitioner are given in Paragraph 6 of the petition; that the departmental officers of the respondent in -charge of the work gave instructions to other contractors to start other works while the work of the petitioner was still in progress. Final measurements have not been recorded by the department so far. On account of the dispute between the petitioner and the department Shri V. V. Vaze of the Ministry of Works. Housing and Urban Development, was appointed as an Arbitrator by the Chief Engineer C. P. W. D. under the arbitration clause. The instructions given by the officers of the department to other contractors have resulted in the latter contractors starting their work thus undoing and effacing the work done by the petitioner. Final measurements were requested for vide letters dated 14 -5 -1970 and 6th July 1970. This application was supported by an affidavit.

(2.) MR . Amarchand, the Additional Advocate General put in his objections on behalf of the respondent to this application which can be summarized as under: - That there being an arbitration clause in the agreement, this petition is not maintainable. The petitioner started the work on 15 -6 -1967 but has not yet completed his work. From 30 -4 -1970 the petitioner is not doing any work at the spot; that it took the department a longer time than originally stipulated i.e. the period of three months to accept the tender of the petitioner. The petitioner agreed to the delay by means of his letter dated 8th May 1967 and ultimately started working on 15 -6 -1967. The petitioner had to construct 27 Kilometers of road; out of this possession of about 2 Kilometers of land could not be given to him at once but was given to him after three months and eight days. It is admitted that time off and on was extended subject to the condition that time was of the essence of the contract and extension did not in any way affect the rights of the respondent. This road is a strategic and defence road. As the petitioner did not do any work on this road after 30 -4 -1970 other contractors had to be asked to carry on other items of work which did not clash with the work of the petitioner. The other contractors are doing their work from 30 -4 -1970. Mr. V. V. Waze has been appointed Arbitrator to settle certain disputes between the parties who is competent to decide all disputes between the parties. Final measurements have been taken. There are no valid grounds for granting the relief claimed by the petitioner.

(3.) AFTER these objections were put in by the respondent the petitioner again put in a rejoinder. In the rejoinder he says that the matter of issue of injunction is outside the jurisdiction of the Arbitrator. The work was completed by the petitioner on 30 -4 -1970 when he handed over the site to the respondent. Other contractors have since been working on this road. The allegation of leaving the work unfinished is denied. The petitioner reiterates that by means of his letter dated 5 -6 -1967 he conveyed to the department that the road could not be constructed within six months as originally stipulated owing to the delay caused by the department itself and that continues to be a part of the contract. Time was not the essence of the contract. That the work was completed by the petitioner before 30th April 1970 is admitted by the Executive Engineer in his letter dated 6th March 1970. Work of catch -pits had not to be done by the petitioner as alleged by the respondent; the nature of the road being strategic is denied. According to the petitioner the work which has been started by the new contractors on this road will definitely disturb and damage the work done by the petitioner and will make it difficult to take the final measurements. The petitioner approached the department as per his letters dated 14th May 1970 and 6th July, 1970 to finalise his bills which was not done. No final measurements upto date have been taken or recorded.