C R No. 1759 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C R No. 1759 of 2009 Date of decision: 17th March 2009 Jagat Singh .........Petitioner vs State of Haryana and another .......Respondents CORAM: - HON'BLE MR. JUSTICE L.N.MITTAL Present: - Mr. Rajiv Doon, Advocate for the petitioner Mr. Narinder Singh, DAG, Haryana .......... L.N.MITTAL, J (ORAL) ............ Jagat Singh, contractor has filed the instant revision petition. Certain work was allotted by State of Haryana respondent No.1 to the petitioner-contractor for execution. However, since the petitioner did not allegedly execute the work as per the time schedule, Engineer Incharge invoking Clause 2 of the Agreement imposed penalty on the contractor. Thereafter, the Engineer Incharge invoking Clause 3 of the Agreement allotted the unfinished work to another contractor. The other contractor completed the work on 21.9.1992. Invoking Arbitration Clause 25-A of the agreement, respondent No.1 referred the dispute between the parties to Arbitrator making various claims against the contractor-petitioner. C R No. 1759 of 2009 -2- The claims were controverted by the petitioner before the Arbitrator Ultimately, the Arbitrator passed award dated 20.12.2000 (Annexure A-1) awarding various amounts to respondent No.1 against the petitioner. Respondent No.1-State of Haryana filed application under Section 14 of the Indian Arbitration Act, 1940 (for short the 'Act') for making the award dated 20.12.2000 passed by Arbitrator-respondent No.2 against the respondent No. 1, as rule of the Court. On the other hand, the petitioner-contractor filed objections under Sections 30 and 33 of the Act for setting aside the award dated 20.12.2000. Learned Civil Judge (Sr. Division), Jind vide judgment dated 7.5.2008 dismissed the objections filed by the contractor- petitioner under Sections 30 and 33 of the Act. Same Court vide separate judgment dated 7.5.2008 allowed the application filed by respondent No.1 under Section 14 of the Act and made the award to be rule of the Court. Respondent No.1 was also awarded simple interest @ 9% per annum from the date of filing the application i.e. 3.1.2001 till recovery, in stead of interest @ 18% per annum claimed by respondent No.1. Feeling aggrieved against the said two judgments of the Trial Court, the petitioner-contractor preferred two separate appeals which have been dismissed by the learned Additional District Judge, Jind by two separate judgments both dated 5.11.2008. Feeling aggrieved, the contractor-petitioner has preferred the instant civil revision. I have heard learned counsel for the parties and perused the case file. At the outset, it has to be noticed that the contractor has C R No. 1759 of 2009 -3- preferred only one revision petition although there were two separate judgments of the Trial Court and also two separate judgments of the Appellate Court. In the instant revision, judgment (Annexure A-3) of the Lower Appellate Court has been annexed whereby appeal against the judgment of the Trial Court whereby the award was made Rule of the Court has been dismissed. Judgment in the other appeal relating to dismissal of objections preferred by the petitioner under Section 30 and 33 of the Act has not been challenged. Consequently, the said judgment of the Appellate Court as well judgment of the trial Court in that case have attained finality. In other words, the judgment of the Trial Court whereby objections preferred by the contractor-petitioner were dismissed has attained finality. It would automatically lead to the conclusion that award has to be made rule of the Court. Consequently, the instant revision petition merits dismissal. It may also be noticed that in the instant revision petition, the contractor-petitioner has sought setting aside of both the judgments of the Trial Court only along with award of the Arbitrator and has not even challenged either judgment of the Appellate Court. Thus, even the judgment (Annexure A-3) of the Appellate Court whereby judgment of the trial court making the award as rule of the Court was upheld, has also not been challenged in the instant revision petition. For this reason as well, the petitioner cannot succeed. On merits also, the petitioner has no case. Learned counsel for the petitioner contended that reference to the Arbitrator was barred by limitation. Attention of the court was drawn to Clause C R No. 1759 of 2009 -4- 25-A of the agreement. The same is reproduced hereunder: Clause 25-A arbitration etc. within 180 days or in six months from payment of final bill to the contractor or from the date registered notice issued to the contractor that his final bill is ready for payment. If any question different or objection whatsoever shall arise in any way connected with or arising out of the instrument or the meaning of operation of any part thereof or the rights, duties liabilities of either party, then save in so far as the decision of any such matter is hereinbefore provided for and has been so decided, every such matter including whether decision has been otherwise provided, for and/or whether it has been finally decided accordingly, or whether the contract should be terminated, or has been rightly terminated and as regards the rights obligations of the parties as the result of such termination shall be referred for arbitration to Superintending Engineer PWD, Public Health Circle Karnal or his successor acting as such at the time of reference or for the payment of recovery or deduction of journey, only the amount, if any, award in such arbitration shall be recoverable in respect of the matter so referred. If the matter is not referred to arbitration with the special period, all the rights and claims under the contract shall be deemed to have been forfeited and absolutely barred.” Learned counsel for the petitioner contended that the dispute was not referred to arbitration within six months of invocation of Clause 2 or invocation of Clause 3 of the agreement and therefore reference to arbitrator was time barred. On the other hand, learned counsel for respondent No.1 contended that according to Clause 25-A of the agreement, limitation period of 180 days or six months commenced from the date of payment of final bill to the contractor or from the date of registered notice issued to the contractor that his final bill was ready for C R No. 1759 of 2009 -5- payment, but in the instant case, final bill of the petitioner-contractor was never prepared and therefore, the reference cannot be said to be time barred. It was also submitted that the second contractor to whom the unexecuted work was allotted, completed the same on 21.9.1992 and only thereafter, final bill of the petitioner-contractor could be prepared and claim could be lodged by respondent No.1 with the Arbitrator after ascertaining the difference amount between the cost paid to the second contractor over and above the cost which was payable to the petitioner-contractor and thereafter the reference was made to the Arbitrator on 5.1.1993 i.e. within the period of 180 days or six months as stipulated in Clause 25-A of the Agreement. I have carefully considered the rival contentions. There is considerable force in contentions raised by learned counsel for respondent No.1. In the instant case, final bill of the petitioner- contractor could not be prepared till the unexecuted work was completed by the second contractor to whom the work was allotted. The second contractor completed the work on 21.9.1992 and thereupon the amount that could be claimed by the respondent No.1 from the petitioner could be ascertained. Reference to arbitration was made thereafter within the requisite period of 180 days/six months. Consequently, the reference cannot be said to be time barred. In addition to the aforesaid, the contractor did not raise the plea of the reference being time barred before the Arbitrator. The contractor should have raised this plea before the Arbitrator to enable respondent No.1 to respond to the same. In the absence of the said plea having been raised before the Arbitrator, the same could not be C R No. 1759 of 2009 -6- raised in objections under Sections 30 and 33 of the Act. However, even on merits, the said plea is not tenable as discussed in the preceding paragraph. Learned counsel for the petitioner next contended that Superintending Engineer, Public Health, Circle Karnal was appointed as Arbitrator, but the award has been passed by Superintending Engineer, Public Health, Circle Jind who was not appointed as Arbitrator. This contention is also devoid of merit because Arbitration Clause 25-A of the agreement reproduced here-in-above provides that the disputes shall be referred for arbitration to Superintending Engineer PWD, Public Health, Circle Karnal or his successor acting as such. Learned counsel for respondent No.1 pointed out that Karnal Circle was abolished and thereupon, Superintending Engineer of Circle Jind became successor of Superintending Engineer of Circle Karnal and therefore, Superintending Engineer, Public Health, Circle Jind was rightly acting as Arbitrator and passed the award. Since the reference could be made to Superintending Engineer of Circle Karnal or his successor, the award passed by Superintending Engineer Circle Jind being successor of Superintending Engineer, Circle Karnal can not be said to be vitiated in any manner. For the reasons recorded here-in-abvoe, I find no merit in the instant revision petition and the same is accordingly dismissed. (L.N.MITTAL) JUDGE 17.3.2010 preeti C R No. 1759 of 2009 -7-