IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. *** R.S.A. No. 543 of 2006 Date of decision : 17.1.2008 Sushil Kumar Mittal --- Appellant Versus State of Haryana and others --- Respondents --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. J.K. Goel, Advocate for the petitioner. --- AJAY KUMAR MITTAL, J. This second appeal is at the instance of the plaintiff challenging the concurrent findings returned by the courts below. The controversy arose in the following manner: The plaintiff, appellant before this Court is a contractor. The plaintiff was allotted the work of construction of bridges on Markanda Distributory by defendant No.3, Executive Engineer, Construction Division no.14, PWD, Irrigation Department, Kurukshetra. According to the plaintiff, due to delay caused by the defendant-department in making running payment and non-availability of closure of canal, the work could not be progressed at an expected pace. Owing to such problems which occurred frequently at a number of times, the contract agreement was terminated and the work was withdrawn from the plaintiff vide letter dated 27.9.2000. On termination of the contract, a R.S.A. No. 543 of 2006 penalty in the sum of Rs. 3,36,369/- was imposed on the plaintiff and after deducting Rs. 1,71,042/-, the dues payable by the defendants to the plaintiff, a sum of Rs. 1,65,327/- was shown as balance, recoverable from the plaintiff against the amount of penalty imposed. This is how the plaintiff filed a suit for declaration to the effect that termination of the contract and levy of penalty by the defendants were illegal, arbitrary and not binding upon it, and as a consequential relief, the defendants were sought to be restrained from effecting recovery of penalty amount. Further prayer was also made that they should refund the bone fide dues payable to the plaintiff that were adjusted against the penalty amount. On behalf of the defendants, it was stated that as per terms of the agreement, the dispute was required to be referred to the arbitrator but the plaintiff failed to resort to that recourse. The cause which led to termination of contract was attributed to the lethargic attitude and late action by the plaintiff who, in spite of various requests and reminders, failed to complete the work within the prescribed time. The trial court dismissed the suit. The plaintiff appealed before the District Judge. The contention before the first appellate court was that the trial court did not appreciate the evidence on record in its right perspective. The contention was held to have no force. The appeal was, however, dismissed. I have heard learned counsel for the appellant and perused the record. The trial court, upon appreciation of evidence held that since the plaintiff had failed to refer the dispute to the arbitrator in terms of clause 24.1 of the agreement, Exhibit DW1/3, the jurisdiction of the civil court w as barred to adjudicate the controversy. The first appellate 2 R.S.A. No. 543 of 2006 court did not find any fault with the findings of the trial court and held in clear terms that the dispute between the parties required to be referred to the arbitrator, but the plaintiff did not take such recourse and instead questioned the validity of the order dated 15.9.2002, Exhibit DW1/16 before the civil court, and thus the suit filed by the plaintiff was not maintainable. Learned counsel for the appellant though argued in favour of invalidation of the concurrent findings of the courts below, but could not ‘ in fact, point out any error of law or perversity therein so as to persuade this Court to interfere in second appeal. No question, much less a substantial in character, could be shown to have arisen for the consideration of this Court. In view of the above, I find no merit in the appeal and the same is dismissed in limine. (AJAY KUMAR MITTAL) January 17, 2008 JUDGE *RKMALIK* 3