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2003 DIGILAW 594 (ORI)

STATE OF ORISSA v. SURENDRANATH KANUNGO

2003-09-24

L.MOHAPATRA, SUJIT BARMAN ROY

body2003
SUJIT BARMAN ROY, J. ( 1 ) BOTH these writ petitions are being disposed of by this common judgment as identical questions of fact and law are involved. ( 2 ) IN these two writ petitions, petitioners have challenged the orders dated 20-9-2001 passed by the former Chief Justice of this court in MJC No. 241 of 2001 and MJC No. 242 of 2001 respectively. By both these orders, which were passed with consent of the learned counsel for the respective parties, shri Jagannath Pattnaik, a Senior Advocate of this Court, was appointed as Arbitrator. These two orders are now under challenge in these two writ petitions respectively filed by the State. ( 3 ) THE case of the petitioner in OJC No. 15281 of 2001 in brief is that the opposite party entered into an agreement with the petitioner for the work "construction of suhagi M. I. P. Headworks (Earth Dam and head Sluice) under Narsinghpur Block of cuttack District" vide Agreement No. 61 F2 of 1983-84 for a contract value of Rs. 1,95,04,908/- with the stipulation that the execution of the work should be commenced with effect from 2-12-1983 and the same should be completed by 31st March, 1985. According to the petitioner, the said agreement did not contain any arbitration clause. The arbitration Clause 23 was scored out at the time of execution of the agreement with signatures of the opposite party at two places acknowledging thereby that the said Clause was scored out. Similarly, the case of the petitioner with regard to OJC No, 15347 of 2001 is that the opposite party entered into an agreement with the petitioner vide Agreement No. 131/f2 of 1981-82 for a contract value of Rs. 91,30,532/- for the work "construction of Suhagi M. I. P. Headworks (Spill way) in Narsinghpur Block of the Cuttack district" with the stipulation that execution of the said contract work should be commenced with effect from 15-1-1982 and the same would be completed within a period of thirty calendar months. 91,30,532/- for the work "construction of Suhagi M. I. P. Headworks (Spill way) in Narsinghpur Block of the Cuttack district" with the stipulation that execution of the said contract work should be commenced with effect from 15-1-1982 and the same would be completed within a period of thirty calendar months. Likewise, it is the further case of the petitioner that there was no clause for arbitration in the said agreement as at the time of execution of the said agreement the Clause 23 thereof which related to arbitration was scored out and in acknowledgment thereof, the opposite party signed at two places against the said clause admitting that the said clause relating to arbitration was scored out at the time of execution of the agreement. In effect thereof, it means that there was no arbitration clause in the agreement in question. ( 4 ) FURTHER case of the petitioners in both the matters is that in course of execution of these two works, the opposite party raised certain demands before the petitioners. However, the petitioners did not accede to the same as the opposite party was paid his dues strictly in terms of the contract. Despite the fact that there was no arbitration clause in the agreement between the parties, opposite party in both the matters by his two letters demanded from petitioner No. 2 for appointment of sole Arbitrator for adjudication of the dispute arising out of the said contracts. In both the said notices, opposite party prayed that within a period of thirty days from the date of receipt of the notices, the sole Arbitrator should be appointed. In none of the contracts, the petitioners appointed any Arbitrator as the agreements in question did not stipulate any arbitration clause whatsoever. As the petitioners did not concede to demand of the opposite party for appointment of Arbitrators, he filed the aforesaid two petitions being MJC Nos. 241 and 242 of 2001 before the learned Chief Justice under section 11 of the Arbitration and Conciliation Act, 1996 for appointment of Arbitrator in both the matters. ( 5 ) IT is further case of the petitioners that after the notices In respect of both these matters were served upon the office of the learned Advocate General of the State, the same were forwarded to the concerned Departmental Officer for Instructions. ( 5 ) IT is further case of the petitioners that after the notices In respect of both these matters were served upon the office of the learned Advocate General of the State, the same were forwarded to the concerned Departmental Officer for Instructions. The Instructions however did not reach the counsel for the petitioners dealing with the aforesaid two MJC Nos. 241 and 242 of 2001. However, both the matters were taken up by the former Chief Justice of this Court on 20-9-2001 In his residence. In both these matters, identical orders were passed by the learned Chief Justice. The order passed in mjc No. 241 of 2001 reads as under : "heard Mr. Sangneria, learned counsel for petitioner and Mr. D. Das, learned Additional government Advocate. With consent of learned counsel for parties, shri Jagannath Patnaik, Senior Advocate of this Court is appointed as Arbitrator in this case. His fees is fixed at Rs. 50,000/-and expenses is fixed at Rs. 10,000/ -. The arbitrator shall conclude the arbitration proceeding within four months from this date. The fees and expenses of the Arbitrator shall be equally shared by the parties. Office is directed to transmit the papers and this order to the Arbitrator forthwith. The M. J. C. petition is disposed of. " likewise, order dated 20-9-2001 passed by the former Chief Justice in M. J. C. No. 242 of 2001 is quoted hereunder : "heard Mr. Sangneria, learned counsel for petitioner and Mr. D. Das, learned Additional government Advocate. With consent of learned counsel for parties, Shri Jagannath Patnaik, Senior Advocate of this Court is appointed as Arbitrator in this case. His fees is fixed at Rs. 50,000/-and expenses is fixed at Rs. 10,000/ -. The arbitrator shall conqlude from this date. The fees and expenses of the Arbitrator shall be equally shared by the parties. Office is directed to transmit the papers and this order to the Arbitrator forthwith. The M. J. C. petition Is disposed of. " it appears that both the orders were passed by the former Chief Justice in his residence with consent of the learned counsel for the parties. However, if the agreement between the parties did not contemplate any arbitration clause whatsoever, such order must be held to have been passed in excess of jurisdiction. " it appears that both the orders were passed by the former Chief Justice in his residence with consent of the learned counsel for the parties. However, if the agreement between the parties did not contemplate any arbitration clause whatsoever, such order must be held to have been passed in excess of jurisdiction. Be that as it may, these being administrative orders, petitioners have filed these two writ petitions in this Court under Article 226 of the Constitution of India challenging the aforesaid two orders passed respectively in M. J. C. Nos. 241 and 242 of 2001. The opposite party has also filed affidavits in both the cases. In his affidavit, it is the specific case of the opposite party that at the time of execution of the agreement between the parties, Clause 23 pertaining to arbitration was never scored out and the opposite party never put his signature acknowledging the fact that Clause 23 of the agreement was scored out. He further submitted that he was never furnished with a copy of the agreement executed between the parties. ( 6 ) COPIES of the agreements between the parties have been annexed In both the writ petitions as Annexure 1. It appears that clause 23 was scored out and at two places against Clause 23 it purports to have been signed by the opposite party. Similar signature appears elsewhere In the same agreement. On being asked, learned counsel for the opposite party conceded that the signature appearing elsewhere in the agreement are of the opposite party. But, signatures appearing against Clause 23 in both the agreements are not of the opposite party. He further contends that he was not furnished with copies of the two agreements after its execution. ( 7 ) IN the result, it appears that the question whether Clause 23 was signed by the opposite party is little disputed. It may not be appropriate for this Court to give any decision on this disputed question under writ jurisdiction. He further contends that he was not furnished with copies of the two agreements after its execution. ( 7 ) IN the result, it appears that the question whether Clause 23 was signed by the opposite party is little disputed. It may not be appropriate for this Court to give any decision on this disputed question under writ jurisdiction. ( 8 ) IT appears to us that the Arbitrator himself in exercise of his powers conferred upon him by or under Section 16 of the said act can decide the question whether or not, the arbitration clause in question was scored out at the time of execution of the agreement between the parties and as such, whether or not, he has Jurisdiction to decide the matter or adjudicate the dispute between the parties. While so dealing with the question, the Arbitrator himself may proceed with the matter in accordance with section 47 of the Indian Evidence Act or get the disputed signatures against Clause 23 of the agreement compared by an expert with admitted signature of the opposite party appearing elsewhere in the said agreement. He may himself also compare the admitted signatures with the disputed signatures and proceed with the matter accordingly on the question as to whether Clause 23 in question was scored out or not. The facts being disputed, it may not be appropriate for us under writ jurisdiction to decide this question as to whether the signatures appearing against Clause 23 of the two agreements were indeed the signatures of the opposite party or not. In the circumstances, we further leave it open to the parties to challenge the decision of the Arbitrator that he may give on this Issue in this Court in an appropriate proceeding. The Arbitrator before deciding this disputed question shall not deal with the main arbitration matter. ( 9 ) ACCORDINGLY, with the aforesaid directions and subject to the aforesaid observations, we dispose of both these writ petitions. ( 10 ) I agree. Order accordingly.