R S BAJWA AND COMPANY Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) THIS writ petition is directed against the order dated 5-5-2007 passed by the learned District judge, Sarguja (Ambikapur) in Execution proceedings No. 1 /2007 whereby the execution application of the petitioner has been rejected with a finding that the Executing court has no jurisdiction to execute the arbitration award.

(2.) BRIEFLY stated the case of the petitioner is that the petitioner was awarded work of construction of masonry Dam over flow block Nos. 7, 8 and 9 and non-over flow block 10 and 11 with Right Key Wall including r. C. C. Piers, Gallery, Bucket and Bridge etc. of Shyam (Ghunghutta) Project ambikapur. Agreement No. 24/dl/82-83 dated 25-3-1983 was executed between the parties. The petitioner successfully completed the work under the contract, including the extra works and items, on 30th July 1992 within the extended period of the contract. Clause 51 of the agreement provides for settlement of the dispute. The petitioner, invoking Clause 51, applied for settlement of the dispute vide his letter dated 26-4-1994 (Annexure P-1 ). The respondent after inordinate delay of more than 11 years gave its decision under Clause 51 on 28-11-2005 (Annexure P-3) and rejected the claims of the petitioner. Invoking Clause 52 of the agreement, which provides for arbitration proceedings, the petitioner addressed a letter dated 3rd October, 2003 for appointment of Sole Arbitrator (Annexure-P3 ). The petitioner also addressed a letter dated 18-12-2003 (Annexure P-5) to the respondent State that the authority competent to decide the dispute as per Clause 51 of the agreement has failed to give his decision, therefore, decision in the matter may be given at the earliest. The respondent No. 2 in his reply dated 24-11-2003 (Annexure P-6) informed the petitioner that the claim raised by the petitioner against the additional items is pending consideration, therefore, appointment of sole Arbitrator is not possible. However the respondent No. 2 vide order dated 13th march, 2006 (Annexure P-7) appointed Shri c. M. Malhotra, Retired Superintending engineer as the Sole Arbitrator, cancelling the earlier appointment order dated 22-2-2006 of shri V. K. Chelani, Retd. Chief Engineer as Sole Arbitrator and referred the dispute for adjudication. Learned Arbitrator, after completing the arbitration proceeding, passed arbitration award on 22nd August, 2006 (Annexure P-8) and awarded a sum of Rs. 2,19,64,449/ -. The petitioner addressed several communications to the authorities of the respondents for compliance of the award in his favour and ultimately filed application under Order 21, rule 11 of the CPC for execution of the award before the District Judge, Ambikapur as per the provisions of Arbitration and conciliation Act, 1996 (For short, hereinafter referred to as 'the Act of 1996' ). Learned District Judge, on the objectio'n of the respondent state dated 14-3-2007 (Annexure P-14), rejected the application.

(3.) THE petitioner has impugned the above order on the ground that the arbitration proceedings commenced on 3-10-2003 when the petitioner requested the respondents for appointment of arbitrator. No Arbitration Tribunal under the C. G. Madhyastham adhikaran Adhiniyam, 1983 (for short, hereinafter referred to as the Adhiniyam of 1983)was in existence until 2nd September, 2005. Therefore, the petitioner rightly invoked clause 52 of the agreement for appointment of arbitrator. The respondent, after appointing arbitrator as per the provision of the agreement, also participated in the arbitration proceedings before the Sole Arbitrator. The award passed by the Sole Arbitrator has attained finality as the respondents did not apply for setting aside the award under Section 34 of the Act of 1996 and the same is binding on the parties as per the provisions of Section 35 of the Act of 1996. The award was executable in the same manner as if it were a decree of the Court as per Section 36 of the Act of 1996, it was not open to the executing Court to travel behind the decree sought to be executed. The Executing Court has passed the impugned order by ignoring documents available on record on mere presumption.