t r IN THE HIGH COURT OF JUDICATURE AT BILASPUR WRTT PBTnriON N0. J OF 2005 PETITIONER ^ ^^ IS^ ^^ ^%Acy" •' •- -' \ f\-** y /.A^ <F- -s&'' ^- VERSUS RESPONDENTS 0< South Eastern Coalfields Liniited, A Government Company Registered under the Compahies Aet, 1956 which is run, raanaged and •controlled by the Government of India; through the Chairnian cum Managing Director, South Eastern Coalfields Limited, Seepat Road, Bilaspur (C.G.) ^l. M/S Triupati Constructions Structural Engineers 65 Building Contractors, Burhar, district Shahdol (M.P.) 2. The Arbitrator. 3. The Additional District Judge, Korba. WRIT PBTITION UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA. :+- ^^ r^ 'S^ •^W\v\^,. H)Tll<-li](o, [sldW^ . k^3<P/^ sn^iqiitew W SH^; s»ili!<k t^!WC^fel3H^T as/3/aoos •*i<ilri41i 'WRif '9 fwj 'rfSn^R ^siRraaiTOT Dr. N.K. ShuJda, Sr. Advocate, with Sushri Ritu Mishra, Advocate, for the pctltioner. Shri V.R. Rao, Advocajte, for fhe respondent no. 1. Leamed counsel for respondent no.l has piuduced certain dociunents for placi4g (he same on iccord. ^ The documente are taten on reconl. Heard. Ordcr dictated. T^ped separatety.^igey and dateA Sd/- Fakhruddin Judge SRPRJ—FS/350—12/2000—50,000. ^' '•' HMBI cwcmiATnavo&stSt AT BULJUBPUR WRIT PB'N'HtW 110.300/05 Soufli Eastem Goalfields Ud. Vs. M/s Tirupati CcaistrugtitMis Structural Engineers & Bnildmg ConteK:tors & ors. 'kk. c ^'- Dr. N.K. ShuMa, Qr. Advoeate, with Sushri Ritu Mistua, Advocate, for the petitipner. " Shri V.R. Rao, Advocate, for respoadent no. 1. O R D B R Heard leamed counsel for the parties. 2. By tfais pctltton, the pctitioaer has prayed for settii^ aajde the oider dated 30.10.1996 passed by fhe Dtetrict Judge, Bflaspur m Civil Suit N0.21-A/1996. 3. Admittedty, contract for coastruction of Traming lastitute at Gevra ProjcGt of Korba West Area was awarded to respondent no.l M/s Tirupati. Coi^tructioits Stra(rtnral Engineera & BuiMmg Contractora vide oider No.ACE(qSECL/ BSP SRB(W)/W.O./ 11010-15 dated 24.4.1989. Clause 9 of fhe agrecinent provides for settlement of aU disputes by recourse to arbitration. Under fhe said clause, Chairmaa-cuni-Maiiaging Director of SECL is authorized to aoinJnate a person to whom disputes are to be referred for arbitration. Respondent no. 1 filed a petition uader Scction 8 of the Arbitcatioa aad Conciliatioa Ordinance, 1996 on 22.7.1996. The case of respondent No. 1 was that huge sum on account of work doae was duc to it in relatioa to fhfrcoateaGt The respondent No.l called upon fhe petitfoner to arraagp payment but ao action to release payinent has beea iaatiated. As such, fhfi respotident No.l as per tettcr dated 05.07.1996 caUed upoa the Chainnaa of the petitioner coinpany to noiniaate a person to whoiB disputc is referred. It was ateo mdicatcd in the said letter that in case aothir^ is heard for a period of 15 days, respondent No.l would be entiflcd to inove the Court to refer tfae matter as per Arbitratton clause. Since the Cliainnan faited to take aay actfon ou the request, prayer was made to refer the dispute to fhe Arbitrator. As per the respondent No. 1, it wss entifted to get Rs.6,09,80,771.90P plus interest @24.9% per aimum witfa quarterty rest 4. The wntten statement was fited "by fhc petitfoner company in Ai^ust, 1996 and the copy was suppMed to ofher side. The pciittener contended tbat respondent No. 1 could not coniplcte the work as per the contract within fhe'sc^ediiled time ie. 29. 10.1990 and the pcriod 1k- was cxtended fi»mtune to tiine but tbe work could not bc completed. It was also contendcd that the woric of sound systeni and othcrworks were not done. The sound _systein was to be iastaUed as pcr the contract but fhe contractor did not prove the equipments and the work was not done accordic^ to specification and fhc petltiouEa- contended that no psymeait was due and thc SECL is entitted to Rs.3,72,258.88P. 5. The District Judge afler hearing the parties passed the order dated 30.10-1996. The relcvant paragraphs No.7, 8 and 9 aie quotesd below: "7. As per the drbitration ctause 9, afl dispides w cKffereiwes whatsoeuer caising between ihe parft'es out ofar relccKng to the oonstrucfion meamng emd operation or effect of fflas contract or brectdt ttwreof shcM be settled by a sole euWtrator appoinied by C.M.D. af South Basiem Coatfwlds Lid. cmd the award of arbitrator shall be final andbindmg anthe parties. The drbitrator mayfiwm (une fo Ifme wfth tfie oonsenf ofthe pccrties enldrge the timefor nwking ccnd publishmg the award. The cirbitration prooeedings shall be in aocordance urith the ArbftrccKon Act 1940. 8. TTws looking to • ie plecuXngs ofttie peirties, ttiere is (ftspufe relating to or cerising out of the contnact reciched between ihe pccrties ccnd the cfeputes Cts cfisctosed OT the appliccttian filed by the plmnfiff and ihe zmitten s(afemen( fUed by the defendant ecre lidble to be referred to the etrbitnxtor cippmnted by the Chcwman- cwn-Mana.gmg Director of fhe SECL as per arbffriaft'on dccuse. 9. Consequenlly, the eUsputes <»• cKfferences whafsoener caising between the parlies aut of or in relccKng to the owistrudmn meccmng and opemtion effected of tfus conhwst ar breaich thereof as ifisctosed »n the applicatioin. cmd the reply submitled by fhe defendante asre referred to the sole ctrbitralw appofnted by the ChahTncat-a^n-MaTiaging Direcfor of the South Eastem. Coalfietds wwt fhe award passed by the ccrbftratar shatt be findl ccndbiwSng ontheparties. The arbitrator so appointedis directedto subimt his wn en ctward wiffldn. four manffis ftwn. (he date of receipt of ihe order of referenoe. The oertified oopy of (he agreement be alao fmwarded to the Ctrbitrcdw atonguriththe arder ofreferemse.* ^ 6, Puisuant to the above said order, on 31.10.1996 reference was inade to the ChaB-man-cum-Man^mg Director. The Arbitrator was to be appointed by fhe CSiatanan-cum-Managing Director, Soufh lll' Eastera Coat&elds Ltd. aad thc Arbitrator was to malsc au award in writuig. The order of reference is quoted betow:, - "The disputes w differences whcctsoever caising between. the pcaties aut 6f or in relating to the oonstnurifon meanfng and opervction ejQTected qf tfas conftiad or breach thereof as disdased in the afyilican.t and the reply submitted by ihe defendcavts as ardered by Ous Court dated 30.10.3996 cwe referred to ihe sote arfeifrutor appointed by the Chcn'nnan-cum-Managing Director of the South Eastem. Codlfields and he is to make wcwd wi loriting cmd the parties wauld be free to adduce detcdls of cfcifms and counter dtamvs emd euidenoe doaanervtary cmd/ar orat befwe hhn for sudt determfnatfon. The ccrbitra.tor so a^iamted is dfnected to sufcmft his tpritten award wiOun faur monttis ftwn the date of receipt of the order of referenoe. The certified copy of the agreemenl is afep forwarded to the arirffrafor atong iw'tfi (he order qf reference. Oiven under my hcawt and the sea? o/ (h»s Court this 31st day ofOclober 1996.° 7. Leamcd couasel for respondeut No.l pointed out fhat iaitialfy the Arbitiator was appointed by the Chainnaa, who coiild aot complete fhe tesk and thereafter the secoad Arbitrator was appointed aad thc awaxd was subnutted before fhe Coiut on 26.09.2003. 8. It is pomted out by kamed counsd fia- respoadent No.l that agaiast the order ofFefereacc dated 31.10.1996, fhe petitioaer SBCL had preferred aa appcal bearin^ M.A.No. 1358/96 before fhc Wy^ Court of M.P. at.Jabalpur, Said appeal was rejected undcr Oider 41 Rute 3 CPC vidc order dated 11.04.1997 after heaxing fhe partfes. JL The said order is quoted below: 'They are heard. Lemned caunsel fw the respondera pofnfe ou( tficrf (here »s a detented ofder of refesrence, passed by <he Cottrtbetow. The miemmvmdum of a/yecil fe no( acoonipanfed &g <he oerKfied copy ofthe impuyied order of referenee. Jnsfea<( the leewned oaunsel for the appellcmt has mmexed a oopy af ofder of refsrenoe. supplied to twn, oeuteiimngwtly cwufudingpcaviginphof the otder of refeiwwe. ^ TTwrefore, in view of the fdct thal the menwraruhim of appeal is rwt eiowmpccmed by the certified oopy of Ow impugned arder of refenenoe, the memmwmSwn of ^ppeal, filed by the appeUcmt, is rejected, in exerase^f powers under Order 41 Rule 3 of the Code ofCwil Prcxsedure.' 9. Leamed counsel fbr respoiident No. 1 conteiuled ttud; fhe ordcr dated 11.04.1997 passed in M.A.No.l358/% was uot chaBcnged aaywhere. It is contendcd that fhe petitioner in the mcm®of appeal has not at aB mentioncd and whispered about dus. It is fmtiier contended that fhc petitfoner has filed an. appUcadoa bcforc the Court of Additional District Judge, Koxtoa iindcr Scction 151 CPO on 17.12.2004. The reply was ffled by the respondent No. 1. It va stated that the satae is pending consideiatkui. It is atoo stated that in thc appHcatiou filcd under Section 151 CPC the grounds, whlch have becn taken, are also taken ia fhe mstent petition. The petitioner has meutfoned about tfae filmg ofthe appUcation in paxa 5.6 ofthe mstant petition. Para 5.6 of the instant petition is pertuaeat and quoted below: *0n 17.12.2004 an applioation under Secfion 1S1 of Code of Cwil Prooedure tsas ftled by ihe petitioner for setting aside the referenoe made by the leevned DisWd Judge on <he grmmd that he is nojurisdfcffon fo re/er (he rmxtter on aocsounf of r^peaied Ar'bitration Act ef 1940 of which Secft'on 20 enabtes him. to refer the matter to ihe Arbttrcstor where no su»( is penSmig. H is respectfvlly submitted that (he teamed Add.Monal Distrief Judge, Korbaftxsd the casefarfinal hectringcm 05.02.200S and ctkmg tirith final hearmg he vrill ofeo hear (he appUcaKan, wfadr goes to the rauie of the Artjitiwtion. prooess ilself cmd therefore, fhe present petitimt, 10. Learaed coiinsel for fhe petitfonBr conteDded that thc oxdcr dated 30/10/1996 is iBegal. It is without jiutediction. He reiterated the grounds. 11. Per contra leamcd counsd for respondent No. 1 contended fhat fhe aforesaid questions haviag been raiscd before fhe Court below, the Court seized of fhe matter. It is further conteadcd (hat the qucstion ofjurisdietton also hawag beca raised, it is befoie fhe Oourt. 12. Leamed couascl for respondcat No.l submitted fhat this petMon has been fited afljer 9 yeara, which is h^hfy belated. It ia submitted that the aiatter is now fixed before thc Court betow on 01.04.2005 for hearu^g aTguaaents. rf 13. Leamed coiuisel for respondent No.l poiated out that the substantial reUef sought for^in ttus petition is to set sside the ordcr passed by the leamed DistrictJtidgp in Cinl Stdt No.21A/1996 dated 30.10.1996. Consequential (he Arbitxation Award passed by ttte Arbitrator on the gtound ofvoid ab initio for lack ofjiuasdfction. 14. This Court has considered tfae rival contentions. 'Rie petitioner is raisiag the questions, which it has abealy raised befoie the Distrtet Court, beforc filing of fhe instant petition, ndc appBcatioa dated 17.12.2004 aad the repty has also bcen fited. The petition does not contain even a whisper that order of reference was chaBenged before the High Court of M.P. The matter is peiultng before ftie District Court and aU fhese.qiiestions have beca rafaed pending adjmlfcatiou. 15. Having given thoughtfiil consideFatton, iu fhe opiuton of ttus Coiirt, oncc fhe naatter is pending bcfoie thc District Coiat, two pataUel proceedu^s should not be aBowed to cpntmu& fbK jurisdiction undcr Article 226/227 offhe Coastitutioa is discretionary aad exteaordinary. No case is made out for exercffiing extra ordiaaiy jiuisdiction imder Article 226/227 offhe Constitation of Inilia at this st^ge. 16, Before partin^, It te made ctear fhat tiie Datrict Court shaU consider and decide the matter on ite own merits in acconlance with law, without beii^ influenced by any of the obsewatioiis made hercia above. 17. Accordmgly this petitlon staads disposed of. 18. Along wifh the copy of tbis ordcr, fhe recoid o^flie (Soiut betow be sent forfhwifh by a special iiaessei^er. Sd/- Fakhruddin Judge ; r > n