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2006 DIGILAW 680 (PAT)

Shahi Construction Company v. State Of Bihar

2006-08-07

V.N.SINHA

body2006
Judgment 1. Heard Sri Nand Kishore Singh for the petitioner and Sri Lalit Kishore, learned Additional Advocate General-III for the State of Bihar. 2. The petitioner has filed the instant request case praying inter alia to appoint an arbitrator as the Superintending Engineer, the named arbitrator refused to proceed with the arbitration proceedings under his letter no. 421 dated 6.7.2005, annexure-2 on the ground that the arbitration clause 23 has already been deleted in terms of the resolution of the State Government dated 18.11.1992. 3. By filing counter affidavit the State respondents have opposed the prayer with reference to the aforesaid resolution of the State Government dated 18.11.1992, the original agreement signed between the parties dated 22.11.2002, annexure A & B to the counter affidavit and has submitted that the arbitration clause 23 was deleted at the time of signing of the agreement between the parties which fact is evident from perusal of the agreement itself which has been duly signed by the parties on every page and is contained in annexure B to the counter affidavit. 4. Learned counsel for the petitioner in reply has submitted that the deletion of clause 23 has not been authenticated by the parties although the agreement has been signed by the parties on every page but the deletion has not been counter signed by them which is contrary to the practice prevailing in the department as would appear from perusal of another agreement dated 21.7.2000, annexure 1 appended to the supplementary affidavit/ rejoinder in which the parties have not only signed on every page of the agreement but have also counter signed the deletion of arbitration clause 23 of the agreement. In order to resolve the controversy as to whether deletion of arbitration clause 23 was authenticated by the parties learned counsel for the petitioner was called upon to produce his copy of the agreement but he declined to produce the same on the ground that applicants copy of the agreement was never given to him when the agreement was signed by the applicant and the Executive Engineer. When this Court in order to verify the stand that applicants copy of the agreement was not given to the applicant soon after the same was signed asked the learned counsel for the applicant whether such statement that the copy of the agreement was not given to the applicant soon after signing of the agreement has been made in the main application then he could not refer to any such statement. In the circumstances, this Court proceeds on the footing that the copy of the agreement dated 22.11.2002, annexure B signed between the parties was given to the petitioner. 5. Learned counsel for the petitioner then submitted that deletion of arbitration clause 23 from the agreement, annexure B is opposed to public policy as reflected in the Arbitration and Conciliation Act, 1996; Section 89 of the Code of Civil Procedure and ought not to have been deleted from the agreement. In support of his submission, learned counsel for the petitioner has relied on a decision of the Hon ble Supreme Court in the case of Central Inland Water Transport Corporation Vs. Brojo Nath Ganguly reported in AIR 1986 SC 1517, paragraphs 28 and 93. 6. Perusal of agreement dated 22.11.2002, annexure B to the counter affidavit indicates that the same has been signed by the parties on each and every page including page no. 14 which contains clause 23 and clause 23 has been deleted by writing the word "cancelled". Having signed the agreement deleting clause 23, the arbitration clause the petitioner cannot be permitted to question the deletion of arbitration clause. 7. in the circumstances, I have no option but to conclude that clause 23 of the agreement, annexure B was deleted by the parties at the time of signing of the contract. As clause 23 itself stood deleted at the time of signing of the contract there was no occasion for the named arbitrator to proceed with the arbitration proceedings and in my opinion he rightly refused to adjudicate the dispute between the parties under his letter dated 6.7.2005, annexure 2. Accordingly, this request case has no merit which is dismissed.