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2005 DIGILAW 42 (PAT)

Bhawani Construction & Co. v. State Of Bihar

2005-01-13

R.S.GARG

body2005
Judgment 1. This order shall dispose of all these cases (Request Nos. 75, 76, 77, 78, 79, 80, 81, & 82 of 2004). 2. The petitioner is before this Court under section 11(6) of the Arbitration & Conciliation Act, 1996, with a request that as a dispute arose between the parties and despite his request letter, the matter has not been referred to the Superintending Engineer in accordance with clause 23 of the agreement, this Court should intervene in the matter and refer the matter to the Arbitrator. 3. The respondents have filed their consolidated show cause/counter affidavit and have submitted that these cases came to be filed on 12.10.2004 and much before the filing of the cases, on 15.1.2004 under letter no. 97 the Executive Engineer, Flood Control Division, Naugachhia has referred the matter to the Superintending Engineer for his award. It is submitted that as the respondents have already exercised their option much before the filing of these applications, the petitions have become infructuous. Strong reliance has been placed on the judgement of the Supreme Court in the matter of Datar Switchgears Ltd. V/s. Tata Finance & Another (2000)8 SCC 151 . 4. Learned counsel for the petitioner submits that in fact the petitioner had come to this Court in Request Case No, 23 of 2003 wherein he had prayed that all the disputes that were arising under different agreements but under the same tender documents be referred to the Arbitrator and as this Court found that such a consolidated matter was not acceptable, the petitioner was required to withdraw his claim in relation to the present matters and as the Court had referred the matter to the Arbitrator in relation to one agreement vide its order dated 27.2.2004 passed in Request Case No. 23 of 2003 all these cases are required to be referred to the same Arbitrator. It is further submitted that if these matters are not referred to the same arbitrator, the possibility of conflicting awards and duplication of evidence cannot be avoided. He submits that to avoid multiplicity of the litigation and inconvenience which is likely to be caused to the parties all these petitions be allowed and the matter be referred to the same Arbitrator who was appointed in Request Case No. 23 of 2003. 5. He submits that to avoid multiplicity of the litigation and inconvenience which is likely to be caused to the parties all these petitions be allowed and the matter be referred to the same Arbitrator who was appointed in Request Case No. 23 of 2003. 5. Learned counsel for the State on the other hand submits that from paragraph 19 of the abovereferred judgment, it would clearly appear that if the opposite party makes an appointment even after 30 days of the demand but before the first party has moved the Court under section 11 of the Act, that would be sufficient. 6. After hearing the parties, I am of the considered opinion that the judgment in the case of Datar Switchgears Ltd. would control the right of the parties. True it is that the petitioner had filed Request Case No. 23 of 2003 but this Court had observed that such a consolidated application was not maintainable and required the petitioner to file separate applications. If an incompetent application or misconceived application is filed in the Court then filing of such applications would not decide the rights of the parties. The rights of the parties are to be decided by a competent court or by an authority only when an application in accordance with law is filed. 7. In these matters, the applications in accordance with law have been filed on 12.10.2004. If that be so, this Court must accept the submission of the learned counsel for the State that much before the filing of the present application the matter had already been referred to the Arbitrator. The question of inconvenience or duplication of evidence or possibility of conflicting judgments should not deter this Court from following the said judgment of the Supreme Court in the matter of Datar Switchgears Ltd. 8. Taking into consideration the factual aspect that much before the filing of the present applications, the matter has already been referred to the Arbitrator, I do not think that I am required to exercise my powers under section 11(6) of the Act. 9. All these applications are rejected.