IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1363 of 1981 For Approval and Signature:
HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== UNION OF INDIA Versus CONTINENTAL COMMERCIAL CORPORATION ========================================== =============== Appearance :
MR RAMNANDAN SINGH with MS REETA CHANDARANA for Appellant. MR MIHIR J THAKORE with MS RV ACHARYA for respondent.
========================================== =============== Date : 30/01/2012
CAV JUDGMENT
(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) This First Appeal under section 39 of the Indian Arbitration Act [the Act] is at the instance of the defendant in a proceedings under section 20 of the Act and is directed against an order dated April 24, 1980 passed by the Judge, 11th Court, City Civil Court, Ahmedabad in Civil Suit No. 3251 of 1977 thereby allowing the said application under section 20 of the Act and directing that the agreement between the parties which was Exh. 37, should be filed in the Court and the disputes indicated in paragraphs 7(a) to 7(e) of the plaint should be referred to the Arbitrator before whom the disputes arising out the selfsame agreement were pending as those were already referred to by the defendant.
There is no dispute that there was an Agreement between the parties, i.e. the Railway Administration and the plaintiff, M/s. Continental Commercial Company [the Contractor], relating to loading, unloading, transshipment as well as sweeping, cleaning etc. as referred to in Schedule ‘A’ to the Agreement for Sabarmati (BG/MG) Station.
Clause 33 of the Agreement between the parties refers to provisions of arbitration in case of dispute and difference between the Railway Administration and the Contractor as to the respective rights, duties and obligations of the parties or as to the construction or interpretation of any of the terms and conditions of the Agreement or as to its application [except the decision whereof was expressly provided for in the agreement].
Ultimately, various disputes having arisen out the said Agreement, the Contractor, plaintiff-respondent, demanded arbitration in terms of clause 33 of the Agreement. The Railway Administration also called for arbitration of certain disputes raised by them. It, however, appears that only the disputes raised by the Railway Administration were referred to the Arbitrator but some added ones raised by the Contractor were not referred, as a result, the plaintiff filed the application under section 20 of the Act for filing of the Agreement before the Court.
The suit was contested by the Railway Administration wherein the existence of the Agreement between the parties was not disputed but the defence of the Railway Administration was that the additional disputes raised by the plaintiff were outside the purview and scope of the arbitration and should be treated as “excepted matters” where the decision of the Railway Administration was final and binding according to the terms and conditions of the agreement, and, therefore, the Railway Administration did not refer those disputes to the Arbitrator.
On the basis of the aforesaid pleadings, the Court below framed different issues and ultimately, decided all the issues in favour of the plaintiff thereby directing filing of the agreement before the Court and for referring the additional disputes referred to by the plaintiff to the Arbitrator who had already been appointed.
Being dissatisfied, the defendant has come up with the present appeal.
Mr. Singh, the learned advocate for the appellant, strenuously contended before us that the learned court below committed substantial error of law in referring the disputes raised by the plaintiff to the Arbitrator by totally misunderstanding the nature of the disputes and only looking at the terms of the agreement. According to Mr. Singh, the disputes raised by the plaintiff were outside the purview of the arbitration clause and as such, were not referable. Mr. Singh, therefore, prays for setting aside the order impugned and dismissal of the application under section 20 of the Act.
Mr. Mihir Thakore, learned Senior Counsel appearing on behalf of the plaintiff-respondent, has, on the other hand, opposed the aforesaid contentions of Mr. Singh and has contended that having regard to the clause of arbitration referred to in the Agreement, the Court below has rightly concluded that those disputes are required to be referred to the Arbitrator. He, therefore, prays for dismissal of the appeal.
Therefore, the only question that arises for determination in this appeal is whether the Court below was justified in passing a direction for filing of the application before the Court and for referring the disputes mentioned therein to the Arbitrator.
After hearing the learned counsel for the parties and after going through the materials on record, we find that admittedly there was a written agreement between the parties on the subject-matter of the contract. There is also no dispute that there is a clause indicating that in cases of disputes referred to in clause 33 of the Agreement, the matter should be referred to the Arbitrator. The said clause, viz. clause 33 of the Agreement, is quoted below:
“33. If any dispute, difference or question shall arise between the Railway Administration and Contractor as to the respective rights, duties and obligations of the parties hereto or as to the construction or interpretation of any of the terms and conditions of this Agreement or as to its application (except the decision whereof is hereby expressly provided for) then the same shall be referred to the sole arbitration of the General Manager of the Railway or if he be unable or unwilling to act then to the sole arbitration of any person appointed by him in this behalf and the decision of the General Manager or the person so appointed shall be final and binding on the parties hereto.”
The scope of investigation in a proceeding under Section 20 of the Act is now well settled. In this connection, it will be appropriate to refer to the following observations of the Supreme Court in the case of GENERAL MANAGER, NORTHERN RAILWAYS AND ANOTHER V.
SARVESH CHOPRA reported in AIR 2002 SC 1272 where, while dealing with the cases of excepted ones as specified in the Arbitration Agreement, the said court took note of all the relevant decisions of that court on the point [para 10, pp.1276]:
“While dealing with a petition under Section 20, Court has to examine; (i) whether there is an arbitration agreement between the parties, (ii) whether the difference which has arisen is one to which the arbitration agreement applies, and (iii) whether there is a cause, shown to be sufficient, to decline an order of reference to the arbitrator. The word 'agreement' finding place in the expression 'where a difference has arisen to which an agreement applies', in sub-section (1) of Section 20 means 'arbitration agreement'. The reference to arbitrator on a petition filed under Section 20 is not a function to be discharged mechanically or ministerially by the Court., it is a consequence of judicial determination, the Court having applied its mind to the requirements of Section 20 and formed an opinion, that the difference sought to be referred to arbitral adjudication is one to which the arbitration agreement applies. In the case of Food Corporation of India (supra) relied on by the learned counsel for the respondent, it has been held as the consistent view of this Court that in the event of the claims arising within the ambit of 'excepted matters', the question of assumption of jurisdiction by any arbitrator either with or without the intervention of the Court would not arise. In Union of India v. Popular Builders, Calcutta (2000) 8 SCC 1, and Steel Authority of India Ltd. v. JC Budharaja, Government and Mining Contractor (1999) 8 SCC 122, Ch. Ramlinga Reddy v. Superintending Engineer and another (1994) 5 Scale 12 (pr 18), M/s. Alopi Parshad v. Union of India : (1960) 2 SCR 793 at page 804 this Court has unequivocally expressed that an award by an arbitrator over a claim which was not arbitrable as per the terms of contract entered into between the parties would be liable to be set aside. In M/s. Prabartak Commercial Corporation Ltd. v. The Chief Administrator, Dandakaranya Project and another, (1991) 1 SCC 498, a claim covered by 'excepted matter' was referred to arbitrator in spite of such reference having been objected to and the arbitrator gave an award. This Court held that the arbitrator had no jurisdiction in the matter and that the reference of the dispute to the arbitrator was invalid and the entire proceedings before the arbitrator including the awards made by him were null and void.”
After going through the said clause 33 and applying the aforesaid tests, we find that whatever may be the nature of the disputes in respect of the rights, duties and obligations of the parties or as to the construction or interpretation of any of the terms and conditions of the said Agreement or as to its application, except the decision whereof is expressly provided for in the agreement, the same should be referred to the sole arbitration of the General Manager of the Railway or if he is unable or unwilling to act as such, then to the sole arbitration of any person appointed by the General Manager.
Therefore, the question before us is whether the disputes sought to be referred to the arbitrator by the plaintiff are those disputes, the decisions whereof are expressly provided for in the agreement.
The five items of disputes referred to in paragraph 7 (a) to 7 (e) of the plaint, which the defendant refused to refer to the arbitrator, are quoted below:
“(7). The plaintiffs are entitled to recover the following amounts from the Western Railways, i.e. the defendant.
(a). Rs.1,50,000-00 Being the amount of security deposit illegaly forfeited by defendants.
(b). Rs.2,40,000-00 Being the damage suffered by the plaintiff at the rate of Rs.25,000/- per month for a period of 9 months and 15 days between 14-9-74 when the contract 1975 of was illegally terminated and 30.06-
when the contract period would have otherwise ended on account of breach contract committed by the defendants.
(c). Rs.5,95,393-00 Being illegaly and wrongfully deducted from the plaintiffs bills on account of demurrage charges.
(d). Rs. 9,468-00 Being the amount wrongfully and illegally deducted by way of fines from plaintiffs bills.
(e). Rs. 73,795-00 Being wrongfully and illegally deducted from plaintiffs bills on the alleged ground of engagements of casual labourers”
After going through the terms of the Agreement, we do not find any clause in the same which provides for decision by the agreement itself thereby taking those out of the operation of the arbitration agreement in respect of the disputes where (a) the amount of security deposit is illegally forfeited by the Railway, (b) a party suffers for illegal termination of contract by other side, (c) any amount is deducted illegally as demurrage charge, (d) any amount is illegally deducted by way of fines, and, (e) any amount is illegally deducted on the ground of alleged engagement of casual labourers.
In our opinion, all those disputes having arisen out of the Agreement since allegedly illegally terminated and the Agreement not having provided any other mode of decision even in cases where the contractor alleges illegality on the part of the Railway Administration in violation of the Agreement, those disputes as regards the alleged illegality must be decided by the Arbitrator.
We, therefore, find no reason to interfere with the judgment impugned in this appeal by which the learned trial judge has held that those disputes are not exempted from arbitration.
We, however, make it clear that within the scope of this appeal under section 39 (iv) of the Act, we have not gone into the merit of the disputes referred to by the respondent. If any of the parties is dissatisfied with the ultimate award of the Arbitrator on those disputes, such party will be free to challenge the award in accordance with law.
With the above observation, this appeal is dismissed. In the facts and circumstances of the case, there will be, however, no order as to costs.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA. J.]