WP 227 No. 257 of 2016. Case: State of Chhattisgarh and Ors. Vs Vineet Singh Construction Company Pvt. Ltd.. Chhattisgarh High Court

Case Number:WP 227 No. 257 of 2016
Party Name:State of Chhattisgarh and Ors. Vs Vineet Singh Construction Company Pvt. Ltd.
Counsel:For Appellant: U.N.S. Deo, Govt. Adv. and For Respondents: Apoorva Tripathi, Adv.
Judges:Prashant Kumar Mishra, J.
Issue:Arbitration Act, 1940 [Repealed] - Section 2 (a); Arbitration and Conciliation Act, 1996 - Sections 36, 9; Code of Civil Procedure, 1908 (CPC) - Order XXI Rule 13; Constitution of India - Article 227
Judgement Date:February 02, 2017
Court:Chhattisgarh High Court
 
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Order:

Prashant Kumar Mishra, J.

1. This petition under Article 227 of the Constitution of India has been preferred by the petitioners/State for setting aside the execution proceedings initiated by the respondent/Contractor before the District Judge, Bilaspur, in MJC No. 310/2015 and Execution Case No. 962/2015, as being wholly untenable.

2. The respondent's tender for the subject work of Amamuda Diversion Plan in River Arpa Hasdeo Kachhar was accepted and the work order was issued for completion of the work up to 21.01.2013, which was later on extended by four months, to be completed up to 31.05.2013, but the respondent failed to complete the work and left it midway, therefore, as per clause 4.3.3.3 the contract was cancelled (under the risk and cost clause).

3. Against the termination of tender and forfeiture of earnest money, the respondent invoked clause 4.3.29 of the agreement petitioning the Superintending Engineer for appropriate orders. The Superintending Engineer passed an order on 25.11.2013 rejecting the claim of the respondent.

4. In WPC No. 90/2015 decided on 20.01.2015, the Division Bench of this Court set aside the order dated 16.9.2014 passed by the Superintending Engineer remitting the matter back to him to pass a reasoned and speaking order in accordance with law in the light of observations made in the order passed by the Division Bench.

5. On remission, the Superintending Engineer passed an order on 14.05.2015 allowing claim of Rs. 79,73,240/- in favour of the respondent. Treating this order as an award the respondent moved execution application before the District Judge under Section 36 of the Act, 1996 read with Section 18 of the Chhattisgarh Madhyastham Adhikaran Adhiniyam, 1983 (for short 'the Adhiniyam, 1983') on 09.07.2015 together with an application under Order 21 Rule 13 of the Code of Civil Procedure, 1908 (for short 'the CPC') for attachment of the Department's Bank account. The petitioner, on its turn, has moved an application under Section 9 of the Act, 1996 for grant of temporary injunction on the plea that the respondent had withdrawn WPC No. 2550/2014 before the Division Bench of this Court on 05.01.2015 seeking liberty to raise dispute before the Arbitration Tribunal, however, it again preferred WPC No. 90/2015 wherein the matter was remitted back to the Superintending Engineer for passing fresh orders, meaning thereby that the respondent moved two successive writ petitions without informing the subsequent Division Bench that it has already withdrawn the earlier writ petition. The petitioners also stated that the order passed by the Superintending Engineer is not the award being simply the decision by the Departmental Authority on the claim raised by the respondent and not an award under the Act, 1996 or the Adhiniyam, 1983. The petitioner placed reliance upon the decisions rendered in Bharat Bhushan Bansal v. U.P. Small Industries Corporation Ltd., Kanpur (1999) 2 SCC 166, State of M.P. and Another v. K.K. Shukla and Co. (2001) 10 SCC 194, State of Madhya Pradesh and Ors. v. Chahal and Company 1995 MPLJ 885 and Ishwarlal v. State of M.P. and Ors. 2015 (1) MPLJ 463

6. Per contra, learned counsel appearing for the respondent/contractor would argue that the State has submitted to the jurisdiction of the Arbitrator, therefore, it cannot question the award passed by the Superintending Engineer. It is also argued that in the claim preferred before the Tribunal, State has referred the Superintending Engineer as Arbitrator and moreover in the pleadings made before the Superintending Engineer, he has been referred as Arbitrator, therefore, the order passed by the Superintending Engineer is an award to resolve the dispute between the parties against which Section 9 application is not maintainable before the District Judge. Reliance is placed upon the decisions rendered in Smt. Rukmanibai Gupta v. Collector, Jabalpur and Others (1980) 4 SCC 556, Mallikarjun v. Gulbarga University (2004) 1 SCC 372, Bihar State Mineral Development Corporation and Another v. Encon Builders (I) (P) Ltd. (2003) 7 SCC 418, Punjab State and Others v. Dina Nath (2007) 5 SCC 28, Gas Authority of India Ltd. and Another v. Keti Construction (I) Ltd. and Others (2007) 5 SCC 38, Jai Singh & Ors. v. Municipal Corporation of Delhi & Anr. 2010 AIR SCW 5968, Union of India v. Pam Development Private Limited (2014) 11 SCC 366 and M.P. Housing Board and Anr. v. Satish Kumar Raizada 2003 (2) MPLJ 346.

7. Before proceeding to deal with the submissions made by the learned counsel appearing for the parties, it would be necessary to refer to the orders passed by this Court in earlier writ petitions preferred by the respondent herein.

(A) WPC No. 325 of 2014 was preferred seeking a direction to hold the act of retendering by the respondents No. 1 to 4 as illegal and arbitrary and the process of retendering including the award of contract be...

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