Seema Engineering & Construction Works, Bokaro v. HEC
2013-12-02
N.N.TIWARI
body2013
DigiLaw.ai
ORDER In this petition, the petitioner has prayed for setting aside the order dated 18.04.2012 passed by learned Sub-Judge-IV, Sr. Division, Bokaro, whereby learned court below has allowed the defendants' petition for referring the matter to the Arbitrator under Clause 78(i) of the general condition of contract. 2. The petitioner was the plaintiff in Money Suit no.05 of 2006, pending before learned Sub-Judge-IV, Sr. Division, Bokaro. After about six years, at the advance stage of the suit, the defendants filed a petition under section 8(I)(II) of the Arbitration & Conciliation Act,1996 praying for reference of the matter to the Arbitrator in terms of Clause 78(i) of the general condition of contract. 3. The plaintiff opposed the petition stating, inter alia, that the petition has been filed belatedly praying for invoking of Clause 78(i) of the general condition of contract, though the copy of the general condition was not given to the petitioner. 4. Learned court below having heard and appreciated the facts and contentions as also the material on record, allowed the defendants' petition and directed the plaintiff to place the matter before the Arbitrator in terms of Clause 78(i), which provides for arbitration. 5. The impugned order has been challenged on the ground that the copy of the general conditions of contract was not given to the plaintiff and, as such, at this stage the said condition cannot be imposed. 6. Mr. Md. S. Akhtar, learned counsel, appearing on behalf of the petitioner, submitted that since the copy of the general condition was not given to the petitioner, the said clause cannot be enforced in the instant case and the matter cannot be referred to the Arbitrator. The impugned order, therefore, is wholly illegal and unsustainable. 7. Learned counsel for respondents, submitted that the petitioner had entered into an agreement by executing and signing the deed of agreement dated 13.02.1996. In the terms of the said agreement, it was specifically mentioned that the contract shall be subject to General Conditions, and Special Conditions of Contract specifications, Drawings, Schedule of Quantities and the Schedule of rate and prices and instructions issued or given in accordance with the relevant provision of the general conditions of contract as the Employer shall from time to time or at any time either directly or through his authorized representative issue and give to the contractor to complete the said work in the manner aforesaid. 8.
8. It is not disputed that the general conditions of the contract contains the arbitration clause. The only ground of the petitioner is that the copy of the general conditions of the contract was not given to the petitioner. It has not been stated by the petitioner that the general terms and conditions were not known to them. The objection that the copy of general conditions of contract was not given to the petitioner has been taken at much belated stage. Neither at the time of executing and signing the agreement nor at any subsequent stage previously, there was any such objection of the petitioner. Learned court below thoroughly considered the relevant facts and aspects and has passed a well reasoned order. 9. I find no illegality or error in the impugned order. 10. This writ petition is dismissed.