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Jharkhand High Court · body

2009 DIGILAW 729 (JHR)

S. N. Agarwal v. Central Coalfields Limited

2009-05-08

D.G.R.PATNAIK

body2009
judgment Heard Shri A.K. Sahani, learned counsel for the petitioner and Shri Ananda Sen, learned counsel for the respondent CCL. With the consent of the parties, this application is being disposed of at the stage of admission. 2. Prayer in this writ application, as made by the petitioner, is for quashing the order dated 28th February 2002 (Annexure-20) purported to be an Award passed by the Arbitrator (Respondent No. 4) on the dispute referred to him in respect of the petitioner’s claim for money against the respondent CCL. 3. Petitioner’s case in brief is that the petitioner being a registered contractor was engaged by the respondent CCL to execute four different works under the contract. The contracts were awarded in between 1976-1980. In addition to the works specified in the contract, certain additional works were also executed by the petitioner at the instance of the concerned authorities of the respondents. The execution of the works of each of the contracts used to be supervised by the officer deputed by the respondent CCL and the extent of works executed, used to be entered in the Measurement Book by the authorised officer of the respondents. After having completed the works, the petitioner submitted his Bills for payment besides his claim for refund of the security deposit, which were initially obtained from him by the respondents. Payment of the Bills were not finalized in spite of the repeated reminders by the petitioner and it continued to be delayed. Ultimately, the petitioner filed a writ application before this Court vide CWJC No. 1897 of 1998 (R). By order dated 17.2.1999, the writ application was disposed of with a liberty to the petitioner to move before the respondent no. 3 stating the details of his claim and enclosing therewith the supporting documents and with the corresponding direction to the respondent authorities to decide the claim by passing a reasoned order, within a period of six months from the date of the representation and in the meantime, to pay the admitted dues, if any, to the petitioner. 4. Pursuant to the aforesaid direction by this court, the petitioner raised his claim before the respondent no. 3 for payment of the total specified amount. However, the respondent no. 3 raised a dispute as to the amount claimed by the petitioner. In order to resolve the dispute, the respondent no. 2 appointed the respondent no. 4. Pursuant to the aforesaid direction by this court, the petitioner raised his claim before the respondent no. 3 for payment of the total specified amount. However, the respondent no. 3 raised a dispute as to the amount claimed by the petitioner. In order to resolve the dispute, the respondent no. 2 appointed the respondent no. 4, a retired Executive Officer of the respondent CCL, as the sole Arbitrator to decide the dispute regarding the claim in respect of the four works awarded to the petitioner. 5. Upon appointment of the Arbitrator, an arbitration proceeding commenced with the first hearing held on 25.4.2000, and on the first date of proceeding, the Arbitrator (respondent no. 4) had declared that he would deliver the Award by 24.8.2000. The petitioner’s contention is that since all the relevant books including the Measurement Books, Site Order Books, Contractor’s Payment Ledger, Revised Estimates covering variations and deviation, etc. were in the custody of the respondents, he had requested the Arbitrator to direct the respondents to produce all the relevant documents, but such request was not considered by the Arbitrator. The petitioner had also placed before the Arbitrator a letter dated 20.7.1999 of the Executive Engineer (C), Sirka, whereby he had accepted that the contracts with the petitioner have not been closed. When despite the repeated requests, the Arbitrator did not proceed to conclude the arbitration proceedings, the petitioner on the basis of the reasons stated, addressed a letter to the respondent no. 2 to change the Arbitrator stating therein that he had lost all confidence in the Arbitrator, who to the belief of the petitioner, was not acting impartially. The request for change of the Arbitrator, was refused by the respondent no. 2. The petitioner thereupon filed another writ application before this court vide CWJC No. 1924 of 2001 challenging the letter dated 30.1.2001 of the respondent no. 2 whereby the petitioner’s request for change of the Arbitrator, was refused. The writ petition was however withdrawn with permission from the court to enable the petitioner to request the Arbitrator to decide the dispute on an early date. The proceeding thereafter continued before the Arbitrator and ultimately, by the impugned order / Award dated 28.2.2002, the Arbitrator had concluded the arbitration proceeding by making the following observations: “26. The writ petition was however withdrawn with permission from the court to enable the petitioner to request the Arbitrator to decide the dispute on an early date. The proceeding thereafter continued before the Arbitrator and ultimately, by the impugned order / Award dated 28.2.2002, the Arbitrator had concluded the arbitration proceeding by making the following observations: “26. After holistic appraisal of the matter, as revealed to me by arguments, pleadings & documents, I Uday Shankar, Sole Arbitrator, conclude that all the claims are barred by Law of limitation 1963 and the claims can not be entertained. 27. I am unable to name this conclusion an Arbitration Award since the examination of money claim could not be carried out in detail in view of inadmissibility of this claim under Law of the land. 28. As an impartial adjudicator, I must go on record to say that there appeared to be some feel of some money being payable to the claimant by the Respondent for work actually done more than twenty years ago. And instead of picking up a fight with the Respondents in such a big way, exponentially magnifying his small claim, if the claimant had chosen to appeal to the Respondents for waiving the limitation for explainable reasons, some amicable settlement could have been possible for a reasonable concession”. 6. Shri A.K. Sahani, learned counsel for the petitioner, submits that even as per the observation contained in the impugned order of the Arbitrator, the same cannot be deemed as an arbitration Award since no issue was framed at all in order to decide the money claim of the petitioner and arbitrary and erroneous grounds of limitation was taken for refusing to decide upon the petitioner’s claim. The ground of limitation could not have been taken by the Arbitrator, had he taken pains to consider the letter dated 27.9.1999 issued by the Executive Engineer (C), Sirka, who being the Executive Officer of the CCL, had accepted that the contracts with the petitioner have not been closed. 7. In their counter-affidavit, the stand taken by the respondents is that the respondent authorities had the best of intentions to resolve the petitioner’s dispute in respect of his claim for payment of the money and therefore, had wanted the dispute to be settled by the Arbitrator. 7. In their counter-affidavit, the stand taken by the respondents is that the respondent authorities had the best of intentions to resolve the petitioner’s dispute in respect of his claim for payment of the money and therefore, had wanted the dispute to be settled by the Arbitrator. The impugned order, according to the respondents, is an Award passed by the Arbitrator and if aggrieved, the petitioner has an alternative remedy under the Arbitration and Conciliation Act and the same cannot be agitated in writ jurisdiction. 8. Averments made by the petitioner in Paras-22,23 and 24 of the writ application stating therein that all the relevant documents pertaining to the measurement recorded in the Measurement Book in respect of the works executed by the petitioner, were in the possession of the respondent’s representative Mr. Bhudeo Singh and that the same are ample evidence to confirm that the petitioner had executed the works allotted to him and certificate of the execution of the works as issued by the said officer in the Measurement Books also confirm this fact. In reply, the statements of the respondents in their counter-affidavit at paras-26, 27 and 28 are that since it is an old case of more than 20 years, obviously some delay will take place in receiving the documents and that the matter is under inquiry. 9. From the above statements in the counter-affidavit, read with the contents of the impugned order of the respondent no. 4, and the petitioner’s statement in the writ application, it is apparent that the requisite documents upon which the petitioner‘s claim could have been adjudicated by the Arbitrator, were not produced by the respondents before the Arbitrator and neither did the Arbitrator issue any firm direction to the respondents to produce the documents. 10. The respondents have not denied the statements in para-37 of the writ petition that the Executive Engineer (C), Sirka, who is an Executive Officer of the respondent CCL, had by his letter dated 27.9.1999, accepted that the contracts with the petitioner had not been closed. It further appears that the petitioner had pursued his claim against the respondents for realization of his dues by filing his writ application before this court within a period of limitation and pursuant to the order passed by this court, the respondents had referred the dispute to the Arbitrator by forwarding the petitioner’s claim. It further appears that the petitioner had pursued his claim against the respondents for realization of his dues by filing his writ application before this court within a period of limitation and pursuant to the order passed by this court, the respondents had referred the dispute to the Arbitrator by forwarding the petitioner’s claim. Upon receiving the documtnes, the Arbitrator choose to proceed to settle the dispute by arbitration by fixing several dates of hearing during the period of almost two years and ultimately, by the impugned order, had virtually dropped the proceeding on the ground that the petitioner’s claim was barred by limitation. 11. From a bare reading of the impugned order, it would be manifest that admittedly, the petitioner had expressed no confidence in the Arbitrator on account of the manner in which the arbitration proceeding was prolonged. The concluding portion of the impugned order also indicates that the Arbitrator was himself not sure as to whether he should term the order as an Award. 12. Admittedly, the Arbitrator has not decided upon the main dispute on the ground that the dispute was time barred. Relevant materials placed by the petitioner in support of his contention that the dispute was not time barred, do not appear to have been considered by the Arbitrator. 13. For the reasons stated above, I find merit in this writ application and the same is allowed. The impugned order (Annexure-20) is hereby quashed. Admittedly, the respondent is a public body. Admittedly, the petitioner was awarded certain works under contract for execution. The works were executed and was affirmed by the representative of the respondents. The dispute now relates to the petitioner’s claim for money for the works executed. It is the demand of justice that the petitioner should be paid for the works executed by him, and the respondents should have honoured their liabilities under the contract. It is apparent from the facts of the case that the petitioner has been pursuing his claim ever since after completion of the works. It is the concerned authorities of the respondents who had delayed the matter for years together and would now want to refuse under technical pleas to evade their responsibility and their obligations. 14. It is apparent from the facts of the case that the petitioner has been pursuing his claim ever since after completion of the works. It is the concerned authorities of the respondents who had delayed the matter for years together and would now want to refuse under technical pleas to evade their responsibility and their obligations. 14. Since it is not within the writ jurisdiction of this court to entertain a dispute involving the money claim where the claim itself is in dispute and dispute of facts are involved, I deem it appropriate that the matter be referred again to the respondent authorities for due consideration. 15. In the facts and circumstances, the petitioner may file a fresh representation before the respondents, who in their turn, shall assess the petitioner’s claim in the light of the documents adverted to by the petitioner including the documents referred to in para-36 of the writ application, which are admittedly in their possession and shall take an appropriate decision thereon, within a period of four months from the date of this order. With these observations, this writ application is disposed of. Let a copy of this order be given to the learned counsel for the respondents.