1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR MISC. CIVIL APPLICATION (ARBITRATION) NO.320/2010 M/s. Lark Constructions Private Limited, Engineers and Contractors, Through its Managing Director ...Versus... Chief Engineer, Maharashtra Jeevan Pradhikaran, Nagpur and others --------------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------------------------------- [S/Shri S.P. Bhandarkar, R.M. Pande, Advs. for applicant] [Shri D.M. Kakani, Adv. for non-applicants] CORAM:- V.C. DAGA, J. DATED :- 03.12.2010 Heard learned Counsel for the parties. The applicant has moved this application for appointment of an Arbitrator. The foundation of the application is Clause (5) of the agreement incorporated herein below. “(5) Appointment of Arbitrator In case of any disputes raised between contractor and Executive engineer during the course of contract regarding work, there shall be no provision for the appointment of an Arbitrator. The decision of the member Secretary (Technical) shall be held as valid and final. If the contractor files a case in appropriate court, the action of withdrawing the work and allotting it to any other agency shall be deemed to be continued as per the practice in vogue in the larger interest of implementation of work in time and as per original time schedule.” 2 Reading of the aforesaid clause indicates that if there is dispute between the Collector and Executive engineer during the course of contract regarding work, there shall be no provision for the appointment of an Arbitrator, meaning thereby, during the course of execution of the contract the dispute shall not be arbitrable. The decision of the Member Secretary (Technical) shall be held as valid and final. Negative clause cannot be read in a manner to spell out the agreement to appoint Arbitrator for deciding the dispute between the parties. The clause further states that if the contractor files a case in appropriate court, the action of withdrawing the work and allotting it to any other agency shall be deemed to be continued as per the practice in vogue in the larger interest of implementation of work in time and as per original time schedule. This condition also indicates the dispute between subsistence of the work regarding contract. Here is the case where the work is already over. There is no specific clause permitting the parties to get their dispute referred to the Arbitrator. Under these circumstances, the Misc. Civil Application is rejected. However, the rejection of this application shall not come in the way of the applicant, if the applicant desires to file suit against the non-applicants, in accordance with law. No order as to costs. JUDGE SSW