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Madhya Pradesh High Court · body

2009 DIGILAW 39 (MP)

BALMUKUND PANDEY v. V. K. SINGH

2009-01-09

AJIT SINGH

body2009
JUDGMENT ( 1 ) THIS petition, under Article 226/227 of the Constitution, is directed against the termination of arbitral proceedings and also for a direction against the respondent for payment of rupees one crore as damages to the petitioner. ( 2 ) THE petitioner is a contractor by profession and he, despite having not much knowledge of law, himself wanted to plead his case. I, therefore, appointed Shri Sheel Nagu, Advocate, not only to assist this Court as Amicus Curiae but also the petitioner. ( 3 ) BRIEFLY stated the facts giving rise to this petition are that during the period from 1987-88 to 1992-93 the petitioner was awarded the following five contract works by the Northern Coalfields limited (in short, "the NCL") : (1) Construction of gas platform at singrauli (2) jungle cutting in connection with Ministers visit (3)approach road for newly constructed shed at Singrauli (4)construction of pathway in all types of quarters at Jayant Project, and (5) cleaning of over head tank of residential and non-residential building and elevated reservoir at Jingurdah. Since a dispute arose between the petitioner and the NCL regarding the contract work the petitioner made various representations between 1988 to 1998 for the clearance of his pending bills. The record reveals that in none of these representations he made any prayer for the appointment of arbitrator for resolving the dispute as per the Arbitration Clauses in the agreements. The petitioner, however, for the first time made a request for the appointment of an Arbitrator vide representation dated 21. 10. 1998 pursuant to which Chief Engineer (Civil) was appointed as the sole Arbitrator vide order dated 20. 9. 2004 under the provisions of the Arbitration And Conciliation Act, 1996 (in short, "the Act 1996" ). ( 4 ) ON 24. 9. 2004 the Arbitrator issued notices to both the parties regarding commencement of the arbitral proceedings. On 4. 10. 2004 both the parties appeared before the Arbitral Tribunal on which date the petitioner made a request for conduction of proceedings in Hindi. On 18. 10. 2004 at the request of petitioner, the Arbitral Tribunal directed the NCL to produce the relevant record for inspection. On 11. 1. 2005 the NCL produced a copy of the measurement book available with it concerning the work. The original measurement book could not be produced because it was in possession of the vigilance Cell. On 18. 10. 2004 at the request of petitioner, the Arbitral Tribunal directed the NCL to produce the relevant record for inspection. On 11. 1. 2005 the NCL produced a copy of the measurement book available with it concerning the work. The original measurement book could not be produced because it was in possession of the vigilance Cell. As the petitioner had not filed any statement of claim, the Arbitral Tribunal directed him to state the facts supporting his claim, the points at issue and the relief sought, as required under section 23 of the Act 1996. On 16. 3. 2005 the petitioner was again reminded by the Arbitral Tribunal to submit his statement of claim positively by the next date to which he responded by submitting a representation dated 19. 4. 2005 in the name of Singrauli Vikas sangharsh Morcha essentially to put pressure on the Arbitral tribunal. This representation neither contained any statement of facts nor the quantitative demand was mentioned in it. Despite this, the Arbitral Tribunal gave further opportunities to the petitioner on 27. 4. 2005 and 11. 2. 2006 to submit his statement of claim by 25. 2. 2006 but to no avail. Instead he made a demand of rupees one hundred crore without giving any details. The Arbitral Tribunal terminated the arbitral proceedings on 8. 5. 2006 by invoking section 25 (a) of the Act 1996 and directed the NCL to pay undisputed outstanding dues to the petitioner which amounted to Rs. 63,975/ -. Aggrieved, the petitioner has filed this petition. ( 5 ) IT is submitted by the petitioner that the Arbitral Tribunal committed an illegality in terminating the arbitral proceedings under the provisions of the Act 1996. According to him, his claim ought to have been decided under the provisions of the old Arbitration Act, 1940. The petitioner also submitted that the termination of arbitral proceedings was without any justification and it has resulted into grave miscarriage of justice to him. The petitioner lastly submitted that since his request for conduction of arbitral proceedings in Hindi was not opposed, the Arbitral Tribunal committed an illegality in conducting the same in English. The learned counsel for respondent, on the other hand, defended the termination of arbitral proceedings under the Act 1996. ( 6 ) THE old Arbitration Act of 1940 was effective till 25. 1. The learned counsel for respondent, on the other hand, defended the termination of arbitral proceedings under the Act 1996. ( 6 ) THE old Arbitration Act of 1940 was effective till 25. 1. 1996 and from that date the new Arbitration Act 1996 became operative. In Shetty Company (P) Ltd. Vs. Konkan Railway Construction 1998 (5) SCC 599 the Supreme Court has held that the law (the 1940 or 1996 Act), existing on the date of making of request by the petitioner for referring the dispute for arbitral proceedings, would apply to govern the arbitral proceedings. In the present case, the petitioner made a representation for the appointment of an arbitrator on 21. 10. 1998 pursuant to which the sole Arbitrator was appointed. It is, thus, clear that on the date when the petitioner made a request for referring the dispute for arbitral proceedings, the act 1940 had ceased to operate and the Act 1996 was in operation. The Arbitral Tribunal, therefore, acted rightly in taking up the claim of petitioner under the provisions of the Act 1996. Section 25 of the act 1996 empowers the Arbitral Tribunal to terminate the arbitral proceedings where the claimant without showing sufficient cause fails to communicate his statement of claim in accordance with sub-section (1) of section 23. As already mentioned above the petitioner, despite being given repeated opportunities by the Arbitral Tribunal, did not submit his statement of claim and that too without any sufficient cause. In this background, it cannot be held that the arbitral Tribunal committed an illegality in terminating the arbitral proceedings. ( 7 ) IT is true that the petitioner did make a prayer for the conduction of arbitral proceedings in Hindi but the fact remains that he did not file any statement of claim and as such the arbitral proceedings actually did not commence and were terminated in default. Further the Arbitral Tribunal has a discretion under section 22 of the Act 1996 to determine the language to be used in the proceedings. ( 8 ) FOR these reasons, I find no merit in the petition. However, before parting, I deem it proper to acknowledge the valuable assistance rendered by Shri Sheel Nagu, Advocate, to this Court which the petitioner also approved. ( 9 ) THE petition fails and is dismissed but without any order as to costs. .