Rabindra Kumar Singh Vs. Irrigation Department - Court Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI Arb. Application No.01 of 2014 Rabindra Kumar Singh, son of Shri Awadhesh Singh, resident of 30, Tata Foundry Quarters, Vidyapatinagar, Baridih, Jamshedpur, P.O.- Baridih, P.S.- Sidgora, District – East Singhbhum … … … … … … Petitioner Versus 1. The State of Jharkhand 2. Engineer-in-Chief, Irrigation Department, Government of Jharkhand, Nepal House, Droanda, Ranchi 3. The Chief Engineer, Irrigation Department, Government of Jharkhand, Icha Galludih Complex, Swarnarekha Multipurpose Project, Adityapur-1, P.O. & P.S. - Adityapur, District – West Singhbhum 4. Executive Engineer, Minor Distribution Division No.3(SMP), Mango (JSR), P.O. & P.S. - Mango, Town – Jamshedpur, District – East Singhbhum … ... ... Opp. Parties ------ CORAM: HON'BLE MR. JUSTICE D. N. PATEL ----- For the Petitioner: M/s. Sekhar Prasad Sinha, Advocate For the Opp. Parties: M/s. Atanu Banerjee, G.A. ------ 12/Dated:

11. h August, 2016 Per D.N. Patel, J.

1) This Arbitration Application has been filed for appointment of the Arbitrator under Sub-Section (6) of Section 11 of the Arbitration and Conciliation Act, 1996.

2) Counsel for the applicant submitted that initially for the construction of canal, contract was entered into between the parties to this Arbitration Application on 26th October, 1987. For the paucity of fund, etc, the said contract came to an end in November, 1991 as stated in paragraph 5 of this memo of Arbitration Application. It is further submitted by the counsel for the applicant that after few years, another contract was entered into between the parties on 12th March, 2007. Thus, after more than 16 years, second contract was entered into, but, in the previous contract, there was Clause No.23 for arbitration, whereas, in the second contract, there was no arbitration clause, nonetheless, if any dispute is arising out between -2- the parties to the second agreement also, Arbitrator can be appointed and the learned counsel for the applicant has relied upon the decision rendered by this Court in Arbitration Application No.42 of 2007 dated 13th May, 2016 and the judgment delivered by this Court reported in (2005)(1) JLJR162(Paragraphs 7 and 19).

3) Counsel for the respondents submitted that the first contract, which was entered into dated 26th October, 1987 has been brought to an end in the year 1991. Thereafter, a period of more than one and a half decade has been over and in the year 2007, another contract was entered into between the very same parties, in which there is no arbitration clause and, hence, no Arbitrator can be appointed for the disputes between the parties in the second agreement and the previous two judgments sited by the counsel for the applicant are also not applicable looking to the facts of this case and, hence, this Arbitration Application may not be entertained by this Court.

4) Having heard learned counsels for both sides and looking to the facts and circumstances of the case, I see no reason to entertain this Arbitration Application mainly for the following facts and reasons:- (i) A work of construction of canal was assigned to this applicant by virtue of a contract dated 26th October, 1987, in which at Clause 52, there is an arbitration clause. This agreement is at Annexure 1 to this memo of Arbitration Application, which are, in fact, general conditions of the contract. (ii) Paragraphs 5 and 6 of the memo of Arbitration Application read as under: -

“5. That it is relevant to note here that the entire work of Swarnarekaha Multipurpose Project was closed due to paucity of fund sometime from November, 1991.

6. That in pursuant to Letter No.260 dated 25.03.2003, the Respondents entered into a Fresh Agreement with the Petition being LCB Agreement No.F2-1/2006-07 dated 12.03.2007 whereby the work which was lying pending for so many years was revived and entrustment of contract work was in the same manner handed over to the Petitioner for completion of pending works amounting to a sum of Rs.77,96,664.23 only.” -3- (iii) In view of the facts stated by the counsel for the applicant, it appears that the first contract brought to an end in the year 1991 for the paucity of fund, etc and thereafter i.e. after approximately 16 years, another contract is entered into between the same parties on 12 March, 2007 being an Agreement No.F2-1/2006-07. In this contract, there is no arbitration clause as per the submissions canvassed by learned counsel for the applicant. (iv) Thus, it appears that in the second contract, which is of the year 2007, there is no arbitration clause at all and the same has been deleted from the agreement papers. This agreement has been signed by the parties to this Arbitration Application. Thus, in absence of arbitration clause in the second contract i.e. of the year 2007, no Arbitrator can be appointed under Sub-Section (6) of Section 11 of the Arbitration and Conciliation Act, 1996. (v) Counsel for the applicant has submitted that in the first contract, which was entered into on 26th October, 1987, there was an arbitration clause, whereas, in the second contract, which is dated 12th March, 2007, the arbitration clause was deleted and, therefore, Arbitrator should be appointed in the second contract also, if the dispute is arising between the parties to the second agreement. This contention is devoid of any merit, because, earlier the contract was brought to an end in the year 1991 as stated in the Arbitration Application paragraph 5, and, as stated herein above, this second agreement was entered into after 16 long years in which there is no arbitration clause and, hence, if the dispute is arising between the parties, no Arbitrator can be appointed under Sub-Section (6) of Section 11 of the Arbitration and Conciliation Act, 1996. (vi) The judgments upon which reliance is placed by the learned counsel for the applicant, are not applicable to the facts of the present case mainly for the reasons that; (a) The first agreement in which there was an arbitration clause, which was at Serial No.52, has been brought to an end in the year 1991 and, the second and fresh agreement has been entered into on 12th March, 2007, in which there is -4- no arbitration clause at all. (b) In the earlier two judgments on which reliance is placed by the counsel for the applicant, arbitration clause was never struck down [in the judgment reported in 2005(1) JLJR162], whereas, in another judgment, the said arbitration clause was deleted unilaterally by the letter of the Government. Therefore, the aforesaid two judgments were given in the facts of those cases, whereas, here, the second agreement was entered into after 16 years of the first agreement was brought to an end and in the second agreement, there is no arbitration clause at all and, hence, these two judgments res ipsa loquitur are not helpful to this applicant.

5) As a cumulative effect of the aforesaid facts and reasons, there is no substance in this Arbitration Application. Hence, the same is hereby dismissed with a cost of Rs.10000/- to be deposited by the petitioner before the 'Advocates' Association Welfare and Development Fund, Jharkhand High Court, Ranchi'

6) Registrar General of this Court is directed to send a copy of this order to the President and the Secretary of the 'Advocates' Association Welfare and Development Fund, Jharkhand High Court, Ranchi'. Manoj/ (D. N. Patel, J)