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2013 DIGILAW 1095 (PAT)

Kumar & Kumar Construction through its Proprietor Chandan Kumar v. State of Bihar

2013-09-10

KISHORE K.MANDAL

body2013
ORDER Heard Mr. Nadim Seraj for the petitioner and Mr. Manoj Kumar Ambastha G.P. 14 for the State. 2. A counter affidavit has been field on behalf of the State. 3. The petitioner was assigned contract job by the respondents for construction of Godown having storage capacity of 500 metric tones of articles/grains at Khizarsarai Block Premises. The same was required to be completed by 25.11.2012. In course thereof, a dispute arose between the parties relating to execution of the work. The petitioner was accused of slow pacing the work. It is also the case of the respondents that part of the work executed by the petitioner was faulty. Under these factual background, the respondent Executive Engineer during the pendency of this application passed an order dated 13.12.2012 (Annexure-7) which has been brought on record by way of interlocutory application by the petitioner. The petitioner has now prayed for quashing of the said order dated 13.12.2012. 4. There is no dispute between the parties that the contract between them still subsists. The said order, however, states that petitioner shall be debarred from future tender work. There is thus a dispute between the parties relating to execution of work under the agreement which has led to passing of the aforesaid order. Learned counsel for the petitioner submits that which party is at fault cannot be decided by a party to the agreement. The order is, therefore, bad in law. 5. Learned counsel for the State, on the other hand, submits that considering the huge amount of works being executed by the Government and/or its agencies under different agreements leading to diverse litigations springing therefrom, the State Government have already framed a law and constituted a Tribunal under the Bihar Public Works Contract Disputes Arbitration Tribunal Act, 2008. The sole purpose of constitution of Tribunal under the said Act is to ensure speedy execution of such projects and disposal of the litigations arising therefrom. Learned counsel for the State relying on Section 9 thereof submits that the Tribunal has been vested with all jurisdictions including the power to pass interim orders if it so warrants. Section 9 of the Act reads thus:– “9. Learned counsel for the State relying on Section 9 thereof submits that the Tribunal has been vested with all jurisdictions including the power to pass interim orders if it so warrants. Section 9 of the Act reads thus:– “9. Reference to Tribunal and making of award.–(1) Where any dispute arises between the parties to the contract, either party shall, irrespective of whether such contract contains an arbitration clause or not, refer, within one year from the arbitration in such form and accompanied by such documents or other evidence and by such fees, as may be prescribed. (2) On receipt of a reference under sub-section (1), the Tribunal may, if satisfied after such inquiry as it may deem fit to make, that the requirements under this Act in relation to the reference are complied with, admit such reference and where the Tribunal is not so satisfied, it may reject the reference summarily. (3) Where the Tribunal admits the reference under sub-section(2), it shall after recording evidence if necessary, and after perusal of the materials on record and on affording an opportunity to the parties to submit their arguments, make an award or an interim award, giving its reasons therefor. (4) The Tribunal shall use all reasonable dispatch in entering on and proceeding with the reference admitted by it and making the award, and an endeavour shall be made to make an award within four months from the date on which the Tribunal had admitted the reference. (5) The award including the interim award made by the Tribunal shall, subject to an order, if any made under Section-12 or 13, be final and binding on the parties to the dispute. (6) An award including an interim award as confirmed or varied by an order, if any, made under Section 12 or 13 shall be deemed to be a decree within the meaning of section-2 of the Code of Civil Procedure, 1908 of the principal Court of original jurisdiction within the local limits whereof the award or the interim award has been made and shall be executed accordingly.” 6. Having considered the submissions of the parties, it appears that there is a dispute between the parties arising from the agreement entered by and between the State respondents and the petitioner. There is agreement at Bar that the agreement still subsists and the petitioner is required to complete the work as per specifications. Having considered the submissions of the parties, it appears that there is a dispute between the parties arising from the agreement entered by and between the State respondents and the petitioner. There is agreement at Bar that the agreement still subsists and the petitioner is required to complete the work as per specifications. However, the petitioner has raised an issue relating to said work by calling in question the sustainability of the order dated 13.12.2012 whereby the petitioner has been debarred from participating in future tender. In my view, the said issue can be well addressed by the Tribunal constituted under the Act. 7. This Court, in that view of the matter, refrains from invoking its extraordinary and discretionary writ jurisdiction to interfere with the said order dated 13.12.2012 (Annexure-7). The petitioner may invoke the jurisdiction of the Tribunal and ventilate the said grievance for resolution thereof in accordance with the procedure laid down therein. 8. Let it be recorded that the stand of the respondent before this Court is that the Act itself provides speedy disposal of the matter inasmuch as a time frame has been fixed therein. 9. The application is disposed of.