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2006 DIGILAW 1074 (PAT)

Walia Builders v. Bihar State Export

2006-11-15

ABHIJIT SINHA, NARAYAN ROY

body2006
Judgment 1. Heard counsel for the parties. 2. Precisely, it is submitted by Mr. Basant Kumar Choudhary, learned counsel for the appellant that the learned single Judge of this Court having noticed the fact that on the day when the authorities wanted to invoke the arbitration clause there was no concluded contract and in view of the decisions rendered in cases of Konkan Railway Corporation Limited and Others vs. Mehul Construction Company [(2000)7 Supreme Court Cases 2001] and Angang Group INTNL Trade Corporation vs. Pipavav Railway Corporation Ltd. [(2003)10 Supreme Court Cases 51], dismissed the writapplication in limine. It is further contended that though it may be a case that the concluded contract had come to an end when a prayer was made for appointment of the Arbitrator, the subsequent correspondence made in between the parties would show that the contract was given a new lease of life and contract work proceeded, which would be evident from annexure 7 to the writ application, and, therefore, the parties had the occasion to invoke the arbitration clause for appointment of an Arbitrator. 3. From annexure 7 of the writ application, it appears that correspondence was made by the sole respondent, the Bihar State Export Corporation through the Managing Director addressed to the appellant dated 14.8.2003 clause 12 of which reads as follows: "In case you fail to perform and execute the work in time schedule, any working difficulty, financial liability that may have arisen or will arise due to delay, you yourself will be responsible. If any cost increase of any material occur because of your lack of performance and delay nobody else other than you will bear the cost." 4. From this stipulation made in the correspondence, as referred to above, it appears that the parties were still in agreement for execution of the work and this being the situation, the appellant was entitled to invoke the arbitration clause of the earlier agreement. Learned counsel for the appellant submits that annexure 7 of the writ application brought on record could not have been ignored. Learned counsel further contended that ratio laid down by the Apex Court in Konkan Railway Corporation Ltd. & Ors. (supra) no longer holds good, as this judgment was noticed by the Apex Court in case of S.B.P. & Co. Learned counsel for the appellant submits that annexure 7 of the writ application brought on record could not have been ignored. Learned counsel further contended that ratio laid down by the Apex Court in Konkan Railway Corporation Ltd. & Ors. (supra) no longer holds good, as this judgment was noticed by the Apex Court in case of S.B.P. & Co. vs. Patel Engineering Ltd. [(2005)6 Supreme Court Cases 288] [: 2006(1) PLJR (SC)74], and, ultimately, the matter was referred to a seven Judges Bench for reconsideration of the matter. 5. However, we do not find any mention in relation to annexure 7, as referred to above, in the order impugned. 6. Learned counsel for the respondent, on the other hand, faced with this situation and the stipulation made in annexure 7 to the writ application, however, is not in a position to say that the contract had come to an end and the execution work consequently thereof came to a halt. 7. Regard being had to the facts and circumstances of the case, the matter requires fresh consideration in light of annexure 7 to the writ application, as referred to above. 8. In the result, this appeal is allowed, order impugned dated 17.8.2004 passed in C.W.UC. No. 1155 of 2004 is set aside and the matter is remitted back to a learned single Judge of this Court to re-hear the matter on merit in accordance with law.