Civil Revision No. 323 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 323 of 2009 Date of decision: 21.07.2009 Municipal Corporation, Ludhiana ....Petitioner Versus M/s Shekhar Chander Jain & Co. and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Harsh Aggarwal, Advocate, for the petitioner. Mr. Gurcharan Dass, Advocate, for respondent No. 1. ***** VINOD K. SHARMA, J (ORAL) This revision petition is directed against the order dated 8.8.2008 passed by the learned Additional District Judge, Ludhiana, accepting the appeal filed by respondent No. 1. Respondent-contractor filed a claim petition before the Superintending Engineer, Construction Circle, PWD B&R Br., Ludhiana, in terms of Clause 24 of MW-4, which reads as under: - “Clause 24. - Decision of Superintending Engineer to be final – Except where otherwise specified in the contract the decision of the Superintending Engineer Civil Revision No. 323 of 2009 -2- of the circle of the Buildings and Roads Branch of the Public Works Department [acting as such at the time of reference] shall be final conclusive and binding on all parties to the contract upon all questions relating to the meaning of the specifications, designs, drawings and instructions hereinfore mentioned, and as to they quality, claim, right, or materials used on the work, or as to any other question, claim, right, matter or thing whatsoever, in any way arising out of, or relating to the contract, designs, drawing, specifications, estimates, instructions, orders or these conditions, or otherwise concerning the works, or the execution, or failure to execute the same, whether arising during the progress of the work, or after the completion or abandonment thereof the contract by the contractor shall be final, conclusive and binding on the contractor.” The objection was raised against the Superintending Engineer, Construction Circle, to act as Arbitrator, on the plea that as per terms and conditions of the contract, it was the Commissioner, Municipal Corporation, Ludhiana, was to act as an Arbitrator. The plea was also taken, that even in the work order it was mentioned that the Commissioner, Municipal Corporation, Ludhiana, will act as an Arbitrator, and that his decision will be final and binding on the parties. After the terms and conditions were agreed to and signed by the parties, a written agreement was entered into on 29.9.2000. In the said agreement, MW-4 form and MC works Rules were incorporated as part of the contract. It was specifically mentioned in the agreement entered into between the parties, that the work shall be done according to the specifications of MW-4 form and MC works Rules. Civil Revision No. 323 of 2009 -3- Learned Arbitrator in view of the terms and conditions and work order, showed his inability to act as an Arbitrator and allowed the application moved by the petitioner. Respondent No. 1 preferred an appeal under Section 37(2) of the Arbitration and Conciliation Act, 1996. The learned Additional District Judge, Ludhiana, allowed the appeal by recording as under: - “After giving thoughtful consideration to the submissions made by counsel for both the parties and going through the final concluded agreement dated 20.9.2000 duly signed by the parties and the statutory clause in MW4 form, I find that the Commissioner Municipal Corporation, Ludhiana, cannot be the arbitrator as he himself is a party in this case. The Arbitral Tribunal has wrongly come to the conclusion that he cannot act as arbitrator and he has wrongly held that Commissioner Municipal Corporation, Ludhiana, can only act as arbitrator. There is also no force in the contention of counsel for respondent No. 1 that the appeal should have been filed through the firm itself. It is only a technical defect which does not carry any weight.” Learned counsel for the petitioner impugns the order passed by the learned Additional District Judge primarily on the ground, that the learned Additional District Judge failed to notice, that as per the terms and conditions of the contract, the Commissioner Municipal Corporation, Ludhiana, was to act an an Arbitrator, which was again reiterated in the work order. On consideration, I find no force in the contention raised by Civil Revision No. 323 of 2009 -4- the learned counsel for the petitioner. After the terms and conditions and work order were finalised, a written contract was executed between the parties. In the agreement executed, MW-4 form and MC works Rules were made part of the agreement, wherein the arbitration clause contained in the work order and terms and conditions, was excluded. The Arbitrator appointed in final agreement was an expert, who could effectively adjudicate the dispute between the parties. The learned Additional District Judge, therefore, was right in holding, that under Clause 24 of MW-4, reproduced above, it was the Superintending Engineer alone, who was to act as an Arbitrator. He could refuse to act for any other reason, but not for the reason that he is not appointed as Arbitrator in the agreement. No ground is, therefore, made out to interfere with the order passed by the learned Additional District Judge, Ludhiana. No merit. Dismissed. (Vinod K. Sharma) Judge July 21, 2009 R.S.