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1996 DIGILAW 119 (MP)

JAISWAL CONSTRUCTIONS v. STATE OF MADHYA PRADESH

1996-01-24

S.K.DUBEY, SHAMBHOO SINGH

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JUDGMENT S. K. Dubey & Shambhoo Singh, JJ. - This is a revision under Section 19(1) of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (for short the 'Act'), against the award dated 23.7.1988 passed in Reference Case No. 84/1987 by M.P. Arbitration Tribunal, Bhopal. 2. Facts giving rise to this petition are these : The Petitioner is a contractor who was awarded the contract of submersible Bridge across Dhana River of Ugli Moorum Nala Road in Village Lamta, district Balaghat. On acceptance of the tender on 30.3.1983, after completion of the construction work a dispute arose in respect of certain claims as per Clause 29(1) of the agreement-Ex. D-35, in relation to the five claims and also a claimed interest, while other five claims which have been dis-allowed by the Tribunal were not included in the said claim. The Tribunal while holding that in view of Clause 29(2) of the agreement, the claim which was not raised before the Competent Departmental Authority cannot be considered as do not fall within the definition of the 'dispute' as defined in Section 2(d) of the Act, dealt with the said claims on merits also and after appreciation of the evidence adduced by the parties rejected the said claims. Aggrieved of the part of the award of the Tribunal, the petitioner has filed this revision. 3. Learned Counsel for the petitioner contended that the definition of 'dispute', no where envisages to raise claim or to refer the dispute in accordance with Clause 29 of the agreement before approaching the Tribunal. It is not a condition precedent, because sub-section (2) of Section 2 lays down that words and expressions used but not defined in this Act, but defined in the Arbitration Act shall have the meanings assigned to them in the Arbitration Act. It is submitted that for the purposes of the Act a dispute means claim of ascertained money valued at Rupees 50,000/- or more relating to any difference arising out of the execution or non-execution of a works contract or part thereof. It is submitted that for the purposes of the Act a dispute means claim of ascertained money valued at Rupees 50,000/- or more relating to any difference arising out of the execution or non-execution of a works contract or part thereof. Section 7(1) of the Act mandatorily lays down that either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration Clause or not, refer in writing the 'dispute' as defined under Section 2(1)(d) of the Act, to the Tribunal because the jurisdiction of Civil Court or of the Arbitrator is barred under Section 20(1) of the Act. 4. Shri Alok Aradhe, Panel Lawyer for the State and Shri P. Rusia for the then Nigam supported the award and contended that the petitioner entered into agreement and consented for raising a claim before the Competent Authority, therefore, when once the parties have arrived at agreement with full knowledge the proper course for party who is in dispute has to lodge a claim before the Competent Authority in accordance with Clause 29 of the agreement before resorting to the remedy under the Act, reliance was placed on a Division Bench decision of this Court in case of P. C. Rajput v. State Govt. of Madhya Pradesh and others ( AIR 1993 MP 107 ). Besides, the Tribunal after appreciating the evidence led by the parties has recorded a categorical finding that the petitioner is not entitled to claim the said amount as has failed to prove the said five claims by leading cogent and legal evidence. However, this Court in the revisional jurisdiction will not interfere in the findings recorded by the Tribunal on merits which are neither perverse nor manifestly illegal. 5. After hearing Counsel, we are of the opinion that the conditions laid down in the agreement/contract were binding on parties, as the contract is not in violation of public policy, but, the Clause 29 has been kept for the purpose to shorten the litigation as if the claims are genuine of which the payment has been withheld be settled before proceeding, with the litigation. This Court in case of P. C. Rajput (supra), considered the scheme of the Act and the terms of the agreement in particular Clause 29(1) of the agreement and has observed that if there is any dispute arising out of the contract the party aggrieved should approach the prescribed authority. There may be matters which may be settled under contract agreement and the contractor may well accept the same and there may not arise any occasion for referring the matter to the Arbitration, yet there may be another situation whenever after making a demand raising a dispute the officers stated in the said clause may not take any steps and sit over the matter, whether, in such a situation can it be said that a dispute has arisen may be that a long delay in taking a decision by the executing party may itself turn it into a dispute for the purpose of reference to the Arbitration Tribunal. The scheme of the Act is, therefore, clear that the dispute has to be raised under the scheme of the agreement as envisaged. It does not negative the right of the party to approach the Arbitration Tribunal under Section 7 and as such it cannot be said that it is against the legislative intent or that the parties have contracted out against the provisions of statute. The machinery provided under agreement is to reduce unnecessary litigation. The Court while holding so considered the decision the award of the Tribunal which is under challenge and approved the same. 6. Even for arguments sake, that it was not necessary to refer the claims before the Competent Authority as envisaged in Clause 29, the Tribunal has rejected the claims after appreciating the evidence adduced by the parties which have been discussed in details in Para 27 and 28 of the award. The findings recorded by the Tribunal are neither perverse nor manifestly illegal, hence, in our opinion, does not call for any interference in revisional jurisdiction. 7. In the result, the revision has no merits and is dismissed with no order as to costs. Appeal dismissed.