has indisputably been done pursuant to an order of the Court of law and the party who has done the work must be paid its remuneration
400C  CIVIL APPELLATEJURISDICTION Civil Appeal No 2121 of 1989
385 From the Judgment and Order dated 461987 of the Jammu and Kashmir High Court in Application No 180 of 1987
Altar Ahmed and SK Bhattacharya for the Appellant
SN Kacker EC Agarwala and Ms Purnima Bhat for the Respondent
The following Judgments of the Court were delivered SHARMA J
The present respondent who is an approved contractor of the Jammu  Kashmir State Forest Corporation appellant before us filed an application under sections 8 11 and 20 of the Jammu  Kashmir Arbitration Act 2002 Smvt on the original side of the High Court of Jammu  Kashmir praying for a direction to the Corporation defendant to file an agreement between them fully described therein and to refer the dispute mentioned in the application to an arbi trator
Jammu  Kashmir Arbitration Act is similar to the  enacted in identical language
The Corporation objected pleading inter alia that the entire work allotted to the plaintiff contractor under the agree ment had been completed by him without any dispute and the present claim of the plaintiff is not covered by the agree ment in question or its arbitration clause A learned single Judge of the High Court allowed the prayer for reference to the dispute described in the respondent s application and further granted an interim relief
This judgment is under challenge before this Court by the defendant Corporation
Special leave is granted
As stated in the affidavit of the plaintiff contrac tor the Corporation was created under the Jammu  Kashmir Forest Corporation Act 1978 and its main functions are i to undertake research programmes and to render technical advice to the State Government on the matters relating to forestry ii to manage maintain and develop forests transferred or entrusted to it by the Government and iii to undertake removal and disposal of trees and exploitation of forest resources entrusted to it by the Government
In February 1986 the Corporation invited tenders for extraction of timber from an area described as Compartment No 59 Marwa which included the work of felling and removal of trees
The plaintiff submitted his tender and was ultimately granted the work contract with reference to 4 lac cft
standing volume timber
Subsequently in 1987 he was also entrusted with an additional work contract for a further quantity of 2 lac cft
in the said Compartment 59 Marwa
Although a deci sion by the authorities had 386 been taken for extraction of a total standing volume of 1008000 cft
 the plaintiff was entrusted with the extrac tion work of only 6 lac cft
Thus 406000 cft
of standing volume remained in the area to be extracted later
According to his case the plaintiff was entitled to get this addition al work in accordance with the practice prevalent in the Corporation and assurances given to him
It was alleged that since the Managing Director of the Corporation was not agreeable to allow this additional work the plaintiff approached the Chief Minister of the State who asked the Managing Director to allot him the remaining work
The Manging Director first agreed to issue necessary orders but later refused to carry out the Chief Minister s direction which necessitated the filing of the application before the High Court
The Corporation denied any such practice and refuted the allegation about any assurance given on its behalf as also the statement about the Managing Director agreeing at one stage to allot the additional work in ques tion on the intervention of the Chief Minister
It was further stated by the Corporation that a large amount of extracted timber was lying in the area and had to be re moved
Admittedly the timber had to be transported to a distant place through difficult terrain as has been specif ically mentioned by the contractor himself and was there fore likely to take a considerable time
The Corporation said that a decision had been taken not to work the Compart ment further till the entire timber already extracted was removed to its destination and there was therefore no question of entrusting the remaining work to anybody for the present
A decision as to how and when the additional trees will be felled and the timber removed is for the Corporation to make and it is under no obligation to the contractor in this regard
So far as the work allotted to the contractor under the agreement is concerned it is already complete without giving rise to any difference between the parties
Reliance has been placed on behalf of the plaintiff before us on paragraph 41 of the agreement under which the work contract in respect to 6 lac cft
was obtained by him and which says that the terms and conditions of the tender notice issued by the Corporation will be terms and condi tions of the agreement
The 15th paragraph of the tender notice reads thus 15
Extension for the additional volume available in the coupe will not be claimed as matter of right
But may be consid ered by the Management where the achievement is 100
 387 The arbitration clause being Clause 42 of the agreement states thus 42
Any dispute difference or question which may at any time arise between the parties in respect of the work to be executed by the second party under this agreement shall be referred for arbitration to the Managing Director J  K State Forest Corporation whose decision shall be final and binding on both the parties
 As it appears from the plaintiff s application before the High Court his claim was rounded on procedure practice custom and assurances extended to the peti tioner to that effect by the respondent Corporation through its functionaries from time to time Although it has been contended before us that since paragraph 15 of the tender notice refers to additional volume of work to be allotted in the future the agreement between the parties including the arbitration clause must be interpreted to include within its sweep the present claim of the respondent to the additional work of extraction the case for reference pressed before the High Court rested mainly on the alleged practice and assurances
The High Court has emphasized in its judgment the fact that the trees in question had already been marked for extraction and therefore have to be felled one day or the other and deprecated the attitude of the Corporation in the following words The contention of the learned connsel for the respondents is that the respondents do not want the remaining timber to be extracted presently for unknown reasons and as such the corporation cannot be compelled for grant of sanction for extraction of remaining marked timber
1 think the attitude of the respondent corporation is most derogatory to the facts and circumstances of the case when the peti tioner is prepared to accept all sorts of offers
It cannot be denied that the remaining timber is to be extracted one day or the other and simply to put the petitioner to loss would not be justifiable in any manner
 There was absolutely no justification for the Court to have commented as above when it was leaving the matter to be decided by the arbitrator
A court while considering the question whether an alleged dispute between the parties has to be referred for arbitration or not should refrain from expressing its opinion on the merits of the dispute which may embarrass the arbitrator
However the main issue before us is whether the dispute mentioned in the contractor s application 388 could have been referred to arbitration at all
If the foundation of the claim of the respondent be any alleged assurance or custom or practice it cannot be said that such claim arises out of the written agreement between the parties and so the prayer for reference has to be rejected
If the case pleaded is true the appropriate forum for the respondent will be a court of law directly granting the relief in an appropriate legal proceeding
It was however argued on behalf of the respondent before us that in view of paragraph 15 of the tender notice quoted earlier which must be treated as a part of the agreement the respondent has a right to be considered for allottment of the additional work since his past performance has been excellent
We are afraid the impugned judgment of the High Court cannot be defended on this basis and the prayer of the respondent for reference of the dispute as mentioned in his application before the High Court cannot be granted under the 15th paragraph of the tender notice aforementioned
The language of the said term is explicit in declaring that the contractor would not be allowed to claim as a matter of right additional volume of work
His right extends only to a consideration of his case by the management when the ques tion of allotment of additional work is taken up
But by the application filed before the High Court the respondent did not ask for reference of a dispute as to whether he is entitled to consideration or not the prayer is for refer ence of a higher claim of immediately getting the additional work and this prayer has been allowed
This issue cannot be said to have any connection with the 15th term of the tender notice or any other provision thereof or of the agreement
A reference to the decision of this Court in Seth Thawardas Perumal vs The Union of India 1955 2 SCR 48 will be helpful
The appellant a contractor entered into a con tract with the Dominion of India for the supply of bricks
A Clause in the contract required    all questions and disputes relating to the meaning of the specification and in structions hereinbefore mentioned and as to quality of materials or as to any other ques tion claim right matter or thing whatsoever in any way arising out of or relating to the contract specification instructions orders or these conditions or otherwise concerning the supplies whether arising during the progress or delivery of after the completion of abandonment thereof   emphasis added to be referred to arbitration
It was agreed that the bricks would be 389 prepared in lots and it would be the duty of the Government to remove the bricks as soon as they were ready for deliv ery
In order to keep to the schedule for delivery the contractor had to prepare kateha  bricks and place them in his kilns for baking and while this lot was baking he had to prepare another lot of kateha  bricks ready to take the place of the baked bricks as soon as the Government removed them
At a certain stage the Government department failed to remove the baked bricks in time which caused a jam in the kilns and prevented the contractor from placing a fresh stock of unburnt bricks in the kilns
Consequently the stock pile of kateha bricks kept on mounting up when the rains set in destroying 88 lacs of katcha bricks
The contractor claimed the loss arising out of the neglect of the Govern ment department in performing its duty in time
The Govern ment denied the claim and a reference of the dispute was made to the arbitrator designated in the agreement who made an award and filed it in court
On the Constitution coming into force the Dominion of India was replaced by the Union of India as the defendant in the case and it was contended on its behalf that the katcha bricks did not form part of the contract and that the loss that was occasioned by the damage to them was too remote to be covered by the arbitra tion clause
The second ground of defence was based on Clause 6 of the agreement which absolved the Government from any liability for a damage to unburnt bricks
The stand of the contractor was that the chief reason of the destruction of the katcha bricks was the failure of the department to lift the monthly quota of the bricks in accordance with the written agreement and Clause 6 of the agreement referred only to such cases where the department had no control and would not cover a case of its own default
The Supreme Court did not agree with him and set aside the award inter alia observing that if he chose to contract in the terms includ ing Clause 6 of the written agreement he could not go back on his agreement when it did not suit him to abide by it
In the case before us the plaintiff contractor is trying to connect the allotment of future work by a reference to paragraph 15 of the tender notice which specifically says that additional work could not be claimed as a matter of right
The High Court therefore was not correct in inter preting the aforementioned Clause 15 in the following words There was clause 15 in the tender notice according to which extension of addi tional volume available in the coupe would not have to be claimed by the contractor as a matter of fight but he would have to be con sidered by the management where his achieve ment was 100
In the present case the achievement of the petitioner was 300 and 390 under such circumstances the petitioner had all the right to claim additional work in the said coupe
 Besides if this view be assumed to be correct what was there left for the arbitrator to decide Further it is not alleged or suggested that the Corporation has ever indicated its unwillingness to consider the respondent when it takes up the question of allotting the additional work
In absence of a repudiation by the Corporation of the respondent s right to be considered if and when occasion arises no dispute can be said to have arisen which may be referred for arbitration
In order that there may be reference to arbi tration existence of a dispute is essential and the dispute to be referred to arbitration must arise under the arbitra tion agreement
When in the future the Corporation makes a decision for the execution of the additional work and takes up the question of executing a contract for the purpose the stage for consideration of the plaintiff respondent s claim would be reached and a dispute may then arise if the Corpo ration refuses to consider the claim
Neither the agreement nor the tender notice deals with the question as to the conditions and time for grant of any additional work to the plaintiff and if his claim be interpreted as a demand for immediate allotment of any future work the same cannot be connected with the agreement or the tender notice
We therefore do not agree with the observations of the High Court that the conduct of the Corporation in not taking up immediate deforestation of a part of Compartment No 59 Marwa is reprehensible simply for the reason that the trees in the area concerned are to be extracted one day or the other or that the plaintiff has the right to claim the additional work on the ground that his achievement in the past has been more than 100
We also hold that the claim raised by the plaintiff in his application before the High Court is not covered by the arbitration clause and cannot be referred for a decision of the arbitrator
The order of reference passed by the High Court therefore has to be set aside
By the interim order the High Court permitted the plaintiff to execute the additional work claimed by him without waiting for the award
On the quashing of the main order of reference the interim order automatically disap pears but we would however like to briefly indicate the scope of Court s power to issue interim orders at the time of reference of a dispute to arbitration and point out how in the present case the High Court was in grave error in granting the interim relief
The relevant provision in the Jammu  Kashmir Arbitration Act 2002 Smvt is in section 41b which is quoted below 391 41 Procedure and powers of Court
Subject to the main provisions of this Act and of rules made thereunder a        b the Court shall have for the purpose of and in relation to arbitration proceedings the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of and in relation to any proceed ings before the Court Provided that nothing in clause b shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any such mat ters
 section 18 deals with the power of Court to
pass interim orders after award is actually filed in Court
So far as clause a of section 41 is concerned it makes only the proce dural rules of the Civil Procedure Code applicable
The source of power to grant interim relief cannot be traced to clause a otherwise as was pointed out in HM Kamaluddin vs Union of India  clause b would become otiose
So far as clause b is concerned it circumscribes the Court s power within the limits indicated in the Second Schedule and further qualifies it by declaring in the Provi so that it cannot be used to the prejudice of any of the powers of the arbitrator
The interim direction can be issued only for the purpose of arbitration proceedings and not to frustrate the same
In the present ease the plain tiff contractor was allowed by the High Court to execute the extraction work which was the subject matter of the arbitra tion
Mr Kacker appearing for the plaintiff
respondent argued that in pursuance of this part of the impugned judg ment the plaintiff was able to cut down all the trees in question before this Court passed an order of stay
In other words it is claimed on behalf of the plaintiff respondent that he was able to completely frustrate the arbitration proceeding in a very short time on the strength of the interim order
This statement of fact has been seriously challenged by the petitioner Corporation but whatever be the factual position the High Court by granting the interim relief not in the shape of an injunction in the negative form but by a mandatory direction clothing the plaintiff with the right to do something which he could have been entitled to only after a final decision on the merits of the case in his favour committed a serious error
Paragraph 1 of the 392 Second Schedule speaks of the preservation of subject matter of the reference and paragraph 3 also highlights that as pect
The 4th paragraph which mentions interim injunction or the appointment of a receiver has also to be interpret ed in that light specially because of the language of clause b of section 41 and the Proviso thereto
The second part of the judgment under appeal is also therefore set aside
It has been averred before us on behalf of the plain tiffrespondent that all the trees in question were cut down and so the plaintiff must be permitted to complete the remaining work including their transportation to the desti nation
The learned counsel for the Corporation placed reliance on the statements in several affidavits and con tended that if the entire circumstances including the period which could have been available to the respondent for the purpose of felling the trees are examined there is no escape from the conclusion that the respondent had felled the trees or majority of them after service of the stay order passed by this Court
We do not think it necessary to examine and decide this controversy as in our view the respondent in the facts and circumstances of this case cannot take any advantage from or claim compensation for the hurried steps he alleges to have taken under the strength of the illegal order interim in nature which we are setting aside
In the result the appeal is allowed
The impugned judgment the High Court is set aside and the respondent s application filed before the High Court for reference is dismissed
The respondent shall pay the costs of this Court and of the High Court to the appellantCorporation
SABYASACHI MUKHARJI J
I have read the judgment pro posed to he delivered by LM Sharma J with which the learned Chief Justice has agreed
With great respect I am unable to agree with them on the view that there was no arbitration agreement subsisting covering the dispute in question between the parties
It is therefore necessary to refer to certain facts as I view these
This appeal by special leave is directed against the judgment and order of the High Court of Jammu  Kashmir dated 4th June 1987
The Jammu  Kashmir Forest Corporation is the appellant
The undisputed facts leading to this appeal are that one Abdul Karim Wani the respondent No 1 filed an application for referring certain matters alleged to he in dispute to an independent arbitrator and that for the last 15 years the respondent had been working as a contractor for the 393 appellant Corporation namely Jammu  Kashmir Forest Corpn
and was carrying on various activities in different forest areas in Jammu Province including felling machine sawing pathroo paccinali rope span mahan and transportation
It is stated that in February 1986 the said Corporation issued tenders for felling handsawing pathroo paccinali and mahan work of timber to be extracted from compartment No 59 Marwah In response thereto the petitioner to the original application being the respondent herein submitted his quotation and offered the lowest rate of 1174 per cft
and thereby secured the contract
A formal agreement was also executed between the parties
In October 1987 after about 7 months from the issuance of first work order the appellant Corporation through its General Manager Extrac tion issued a sanction for further quantity of 2 lac cft
sawn volume in compartment No 59 Marwah on the same rates terms and conditions as contained in the original contract
The sanction appears at pages 26  28 of the present appeal papers before us
It appears that the total marking carried out in com partment No 59 was 1008000 cft
standing out of which only 6 lac cft
was sanctioned in favour of the respondent
The compartment in question is at a distance of Over 70 kms
from the nearest road point and the timber extracted from the compartment had to travel by pathroo paccinali and mahan through Chenab river for a total distance of 80 kms
before it is collected at loading point of Dedpeth
1t is further the case of the respondent that as per the procedure practice custom and assurances extended to the respondent by the appellant Corporation through its functionaries from time to time the entire marking con ducted in a particular compartment for extraction was re quired emphasis supplied to be handed over to the respond ent in compartment No 59
As regards sale it is suggested that as the compartment is situated in one of the remotest area of Jammu province where making arrangements for extrac tion of timber including cartagecarriage of foodgrains saws tools and implements is very difficult it was never intended that the balance work remaining in the compartment for extraction would be given to any other contractor
The case of the respondent is that acting upon the assurances and representations of the appellant Corporation that the entire work in the aforesaid compartment would be handed over to him the respon 394 dent had made adequate arrangement after investing Rs5 lacs by way of provision for rations saws tools and implements etc
All these arrangements at that scale were necessary and were made just to extract entire marked timber from the compartment in question and not just initially tendered quantity
That would have been wholly uneconomical
It was further asserted that there was also the practice in the Corporation that once a compartment was handed over to the contractor for work it was taken back from him only after the entire available work in the said compartment stood concluded
The contractor further alleged that the appellant Corporation was not allotting rest of the work to him contrary to the policy adopted and assurances extended as mentioned hereinbefore
The respondent furnished in stances where such conduct or procedure of making allot ments as alleged by the respondent had been followed
We were referred to the sanction in favour of Ms Ghulam Hussain Sukhjinder Singh in respect of compartment No 82 Lander on 28487 Mst
Jana Begum in respect of compartment No 30 B Dachhan and 62 Marmat dated 10387 Sh
Rehmatul lah Bhat for compartment No 19A Paddar dated 5587 Nas sarnllah Malik for compartment No 16 Ramban on 12587 and Irshad Ahmed Shah in respect of compartment No 62 Sewa dated 4287
On behalf of the Corporation and others it was stated before the learned Judge of the High Court that there was no assurance and no practice regarding grant of the contract to the respondent contractor Abdul Karim Wani in the manner alleged
Further it was alleged that the respondent and the Corporation had decided not to work on the compartment till the entire extracted timber was removed to sale depot
Once that decision was there the instances quoted by the contrac tor proved useless according to the appellant
It however very clearly appears that in compartment No 59 Marwah marked standing trees were to the extent of 1008000 eft
The second aspect emerging is that out of this volume only 6 lac eft
standing timber had been sanctioned in favour of the contractor on two different occasions and such timber had been extracted removed and taken to the loading point
The only dispute subsisting was about the rest of the stand ing trees ie 480000 cft
It is not disputed that the said remaining cfts
have been marked
These remained as marked timber which required to be extracted
The respondent claims preference for grant of contract of extraction by way under the clause in the relevant sanction
The only conten tion of the appellant was that they had no intention to extract 395 the said timber till other extracted timber was taken to the depot
The case of the appellant as noted by the learned Judge in his judgment was that the remaining timber to be extracted presently for unknown reasons  was not to be then extracted and as such the Corporation could not be com pelled to grant or sanction extraction of remaining marked timber
The learned Judge by his impugned judgment and order deprecated the conduct of the authorities concerned
He proceeded on the basis that inasmuch as the remaining timber had to be extracted one day or the other the entire work should have been given to the respondent
In the present case the learned Judge noted that the performance of the respondent contractor as 300
The respondent was entitled to the grant of this contract even if his performance had merely been 100
The learned Judge found that there were two different points to be examined
He found that there existed a dispute between the parties touching the agreement executed between them
The matter in dispute was referred to the named arbitrator namely the Managing Director of the State Forest Corporation who was directed to adjudicate upon the same and submit his award within the statutory period of four months
The learned Judge went further and as an interim measure directed that the petitioner before him namely the re spondent herein be allowed to do the remaining work of extraction of timber of standing marked trees in compartment No 59 Marwah and the rates were to be determined by the arbitrator after hearing both the parties
This order is the subject matter of the appeal
The main question involved in this appeal is whether there was any subsisting arbitration agreement in respect of the matters sought to be referred
The second aspect in volved herein is whether the learned Judge was justified in making the impugned order by directing that the petitioner be allowed to do the remaining work of extraction of timber of standing marked trees in compartment No 59 Marwah and the rates be determined by the arbitrator after hearing both the sides
It was contended on behalf of the appellant that the learned Judge travelled beyond the scope of his juris diction
It was submitted that there was no subsisting arbitration agreement covering the entire area of 1008000 eft
There were only two subsisting contracts one being a contract for felling trees of 4 lacs eft dated 6th March 1986 and another for 2 lacs eft in addition dated 28th October 1986
The agreement dated 6386 provided that dispute in respect of these 396 should be referred to arbitration but there was according to the appellant no subsisting contract in respect of the remaining 4 lacs cft
The respondent had only a right to be considered in respect of the rest and yet no contract had been granted to him
Therefore there being no subsisting contract there was no scope for reference to arbitration
In my opinion it is not the correct way to look at the facts of this case
It appears from the first agreement which is at page 142 onwards of the present paper book that it con tained inter alia the following clauses
The quantum of work under each activitysub activity is estimated and as such cannot be guaranteed and can be increased or decreased upto 25 by the General Manager Ext
East Jammu East on the contract rates subject to prior approval of the Managing Director
Any subsequently marking carried out in a sectionunit under work with the contractor shall be included in this increase of 25
 It also contained clause 15 which was to the following extent Extension for the additional volume available in the coupe will not be claimed as matter of right
But may be considered by the Management where the achievement is 100
 Clause 17 of the said agreement which provided for reference to arbitration was the following Any dispute difference question which may at any time arise between the parties in respect of the works to be executed by the contractors shall be referred for arbitra tion to the Managing Director JK SFC whose decision shall be final and binding on both the parties
 In respect of the second contract that similar terms were there was not disputed before us
Therefore even though where the achievement of the contractor was 100 the contractor had a right only to be considered for grant of the additional work
In this case it was contended on behalf of the appellant Corporation that the Corporation could not be compelled by the process of an application under Section 20 of the Arbitration Act to grant additional work to the contractor
On the other hand the contractor had pleaded that where the 397 achievement of the contractor in respect of the subsisting contract was 100 the contractor had a right to be consid ered for grant of the additional work while in this case his performance was 300
Additional volume available in the coupe was liable to be granted to him or at least he was entitled to be considered in accordance with equity and justice
The contractor has further alleged that while others in similar position had been granted this additional work he had been wrongfully denied
His claim was that he having fulfilled 300 performance was entitled to the remaining work of the additional work
It was contended on behalf of the appellant before us that there cannot be any application for filing of an arbi tration agreement for the arbitrator in respect of the contract which had not been entered into
I am unable to accept this submission
Clause 17 of the arbitration agree ment provided that any dispute difference question which might at any time arise between the parties in respect of the works to be executed by the contractors should be referred to the arbitration of the Managing Director of the Jammu  Kashmir State Forest Corpn
Therefore it appears to me that dispute which had arisen between the parties in respect of the works to be executed by the contractor was a dispute which was referable in terms of the clause 17 and the dispute was according to the pleadings the custom practice and procedure of granting additional volume of available coupe where the timber trees had been marked but not extracted to be considered by the Government for grant of the contract
The contract alleged if such proper consid eration or lawful consideration in accordance with the principles of equity and justice had been made the contract would have been granted to the contractor
Therefore the contractor claimed that he was entitled to the grant of additional volume of work
In my opinion there was a dis pute whether the contractor was entitled to the grant of additional volume of the work
Such dispute was a dispute between the parties in respect of the works to be executed by the contractor
 I am clearly of the opinion that the dispute in this case was a dispute between the parties in respect of the works to be executed by the contractor
In that view of the matter and in the light of clause 15 read with clause 17 the dispute in this case was clearly referable to arbi tration of the Managing Director Jammu  Kashmir State Forest Corpn
An arbitration agreement is one which is defined in Section 2a of the as a written agreement to submit present or future differences to arbi tration
There was in this case an arbitra 398 tion agreement that is to say the parties had been ad idem
The agreement was in writing
It was not a contingent or a future contract
It was a contract at present time to refer the dispute arising out of the present contract en tered into by the parties as a result of which the contrac tor got a right or a privilege to ask for consideration of grant of the further work
It was not as sought to be argued a mere right to get the additional work
Hence in my opin ion it could not be contended that there was no agreement
Endeavour should always be to find out the intention of the parties and that intention has to be found out by reading the terms broadly clearly without being circumscribed
This contention of the appellant cannot therefore be accepted
In the light in which I have read the facts I am unable to accept the position that the claim raised by the plain tiff in this application before the High Court was not covered by the arbitration clause
The amplitude of the arbitration clause in my opinion was wide enough and should be so read for the reasons mentioned hereinbefore
If that is the position then the order of reference by the High Court was not bad and cannot be set aside
I am unable to agree that the decision of this Court in Seth Thawardas Pherumal vs The Union of India indicated that in the facts of this case there could not be reference to the arbitration
That was a case where the appellant a contractor entered into a contract with the Dominion of India as it then was for supply of bricks
A clause in the contract required all disputes arising out of or relating to the contract to be referred to arbitration
Disputes arose and the matter was duly referred
The arbitrator gave an award in the contractor s favour
It was held that it was not enough for the contract to provide for arbitration but something more was necessary
An arbitrator only got juris diction when either both the parties specifically agreed to refer specified matters or failing that the court com pelled them to do so under the arbitration clause if the dispute was covered by it
That case was mainly concerned with a specific question of law
This Court referred to the decision of this Court in AM Mair  Co vs Gordhandass Sagarmull  at 798 where this Court quoted a passage from Viscount Simon s speech in Heyman vs Darwins Ltd 1942 Appeal Cases 356 at 368
Here in this case the clause as I read it gave the respondent a right to be con sidered
The respondent s grievance was if properly consid ered his performance being 300 achievement he was entitled in the facts and circumstances set out hereinbefore to the grant of the contract and further similarly placed persons had been so given
That right had not been duly considered
That is the dispute in the present case and that dispute is clearly referable to the arbitration 399 clause as mentioned hereinbefore
I am therefore unable to accept the position that the order of reference passed by the High Court is bad
The second challenge to the order of the High Court was that the order so far as it directed under Section 20 of the that the petitioner be allowed to do the remaining work of extraction of timber of standing market trees in compartment No 59 Marwah was wholly without jurisdiction
For this reference may be made to Section 41 of the which provides that for the purpose of and in relation to arbitration proceedings the Court has such powers to pass interim orders for detention preserva tion interim custody and sale of any property the subject matter of the reference for preservation or inspection of any property or thing the subject matter of the reference or as to which any question may arise therein for taking of samples and making observations and experiments for secur ing the amount in difference in the reference for granting an interim injunction and appointing a receiver as the Court has in relation to any proceeding before it
But though under Section 41b the Court has power to pass an interim order of injunction or appointment of receiver in my opin ion the Section does not empower the Court to direct execu tion of the contract the extent of which is in dispute and is a matter referable to be adjudicated by the arbitrator
If the Court does so then the decision of the dispute be comes academic because the contract is executed
Where the question is whether the contract was to be executed by the respondent if the contract is in fact executed by the respondent by virtue of the order of the Court then nothing remains of the dispute
There is nothing arbitrable any more and proceedings before the arbitrator cannot in my opinion be forestalled by interim order by ordering execution of the contract before it is decided whether it had any right to the contract for additional work in the garb of preservation of the property
In that view of the matter I am clearly of the opinion that the interim directions given by the High Court that the contractor be allowed to do the remaining work of extrac tion of timber of standing marked trees in compartment No 59 Marwah was beyond the competence of the Court
In this respect I agree with my learned brothers
But so far as the Court directed that the rates be determined by the arbitrator after hearing both the parties this direction in my opinion was clearly within the juris diction provided this dispute was referred to the arbitra tion
In this case unfortunately after the order of the High Court was passed and before any order of stay could be 400 passed by this Court in a petition under Article 136 of the Constitution the respondent had done the work of extraction of timer of standing marked trees in compartment No 59 Marwah
Therefore it would be inappropriate to interfere with this order
The events have overreached the decision of the Court
It would be unjust to deprive any party of its dues simply because the work has been done in view of a wrong order or incorrect order of the Court of justice when there was no stay
Would it be just to deprive a suitor of his dues in this manner under Article 136 of the Constitu tion I have no doubt in my mind that it would be unjust
The work indisputably has been done pursuant to an order of the Court of law and the party who has done the work must be paid its remuneration
How would that remuneration be set tled would it be by a decree in the suit or would it be by adjudication of an award In the view I have taken that there was a valid reference on the contention of the re spondent this question which was incidental thereto must be decided along with that contention
In any view of the matter however for determining the work done pursuant to the liberty or right given by the Court which was not stayed by this Court arbitration undoubtedly is a better method of finding out the dues in respect of that work done
I would not therefore in any event alter this direction of the High Court
In the aforesaid view of the matter in my opinion it would be inappropriate to interfere with the interim direc tion of the High Court though the direction was beyond jurisdiction
In the premises I would have disposed of the appeal by directing the arbitrator to determine the rates in respect of the extraction of the remaining timber of stand ing marked trees in compartment No 59 Marwah
In the aforesaid view of the matter I would have made no order as to costs
NVK Appeal al lowed


Summary:
Appellant herein was a lessee of the Respondent in respect of a shop since 1961 at a monthly rent of Rs25 later increased to Rs30 and in addition to the said rent he was to pay house tax to the municipality
Respondent landlord filed a suit for eviction against the appellant on the ground of default in payment of rent for the period 121966 to 311266
The appellant filed an application in that suit under sec
134 of the Act as it stood prior to amendment for determination of arrears of rent and the interest payable thereon
The Trial Court determined the arrears of rent and the interest payable by the appellant
Consequent upon the appellant s depositing the same the suit was dismissed in terms of sec
137 of the Act
The appellant continued depositing the rent in Court
Thereafter the Respondent filed another suit on 21575 alleging that the appellant has again committed default in payment of rent and should therefore be evicted
The appellant received a notice calling upon him to appear in Court on 10276
Since he had not received a copy of the plaint he was granted time till 30376 to file his written statement
In the written statement he refuted his liability to pay the rent and also moved an application us 133  134 of the amended Act praying that if in the course of his depositing the rent in court there has been any omission due to oversight the Court may determine the arrears of rent  interest payable thereon and permit him to deposit the same in court
It may be pointed out here that before the appellant was served with the notice of the suit the Act was amended on 29975 by Amending Ordinance No 26 of 75 whereby a new section 13 A was added to the Act
The object of the newly added section was to provide benefit to all tenants against whom suits for eviction on the ground of default in paying the rent were pending by making a provision that the Courts shall not pass any decree in favour of landlords on that ground if the 193 tenant makes an application within a stipulated period and deposits in court the total rent due
The Trial Court passed orders on the application us 133  134 and called upon the appellant to deposit a sum of Rs335 towards arrears of rent and interest before 28776
The appellant complied with the order but despite that the Trial Court passed a decree for eviction and the appellate Court confirmed the same
In the second appeal preferred by the appellant he contended that the Trial Court ought to have treated the application filed by him us 133  134 as one filed us 13 A of the Act and given the benefit thereof to him
Even though the High Court found that the appellant having re ceived the notice of the suit late and hence was not in a position to make the application within 30 days declined to interfere because in its view the Act has not provided for any relief to tenants placed in the situation in which the appellant was placed
The High Court held that the Act contains a lacuna but the same can be remedied by the legis lature and not by Courts and as such the appellant cannot claim the benefit of sec
13 A of the Act
The suit having been filed prior to the coming into force of Amending Act the same will be governed by the provisions of unamended Act
On the dismissal of the second appeal by the High Court the appellant has filed this appeal after obtaining special leave
Before this Court two questions arose for consideration viz 1 whether the appellant is not entitled to the bene fit of sec
13 A because he had not filed an application within 30 days from the date of commencement of the Act and 2 even otherwise whether by reason of the earlier default in payment of rent for the period 121966 to 31121966 the appellant is disentitled under the Act to claim the benefit of sec
13 A Allowing the appeal this Court HELD Section 13 A has been given overriding effect
Subsection 1 of section 13 A mandates all courts not to pass any decree in favour of a landlord for eviction of a tenant on the ground of nonpayment of rent if the tenant makes an application as per clause b and pays to the landlord or deposits in court within the prescribed time the total amount of rent in arrears together with interest and full costs of the suit
199B C 194 The intention of the legislature to confer the benefit of section 13 A to all tenants provided actual eviction had not taken place could further be seen by the terms of sec tion c
199D E It would be unreasonable and inequitable to hold that the legislature had intended to confer the benefit of sec
13 A only to those tenants who had received notice of the suit filed against them before the Ordinance came into force and not to those tenants against whom proceedings were pending in the sense they had been instituted but who had no notice of the pendency of the suit
199F G Even though it was found that some arrears had to be paid the appellant cannot be denied the benefit of sec
13 A because the section has been given overriding effect in so far as suits and other proceedings which were pending on the date of the promulgation of the ordinance and as such the proviso to sub sec
6 of sec
13 of the amended Act would not disentitle the appellant to claim the benefit of sec
13 A 202H 203A BP Khemka Pvt
Ltd vs
VBK Bhowmick   referred to