Damodar
Engg. & Construction & Co. Vs. Board of Trustees [1993] INSC 490 (16
November 1993)
VENKATACHALLIAH,
M.N.(CJ) VENKATACHALLIAH, M.N.(CJ) AGRAWAL, S.C. (J) ANAND, A.S. (J) CITATION: 1994
AIR 1141 1994 SCC (1) 370 JT 1993 (6) 335 1993 SCALE (4)414
ACT:
HEADNOTE:
ORDER
1.By this petition, the petitioner, as proprietor of M/s Damodar Engineering
& Construction Company, is seeking special leave to appeal against the
judgment dated July 17, 1992 of the learned Single Judge of the Calcutta High
Court whereby the application filed by the respondent, namely, the Board of
Trustees for the Port of Calcutta, challenging a reference to an arbitrator and
for removal of the arbitrator under Sections 5, 1 1 and 33 of the Arbitration
Act, 1940 (hereinafter referred to as 'the Act') has been allowed and the
reference has been superseded and the appointment of the arbitrator,
(respondent 2 in the said application of the respondent), was revoked.
2.The
petitioner entered into a contract with the respondent in the year 1976 for
construction of a permanent road between Ranichak and the Main Feeder Road at Haldia.
The
said contract contained an arbitration clause. The petitioner, invoking the
arbitration clause, referred the disputes arising out of the contract to the arbitration
of an arbitrator appointed by the Institute of Engineers
India.
The
Statement of Claim filed by the petitioner before the arbitrator covered a
number of matters including refund of security deposit amounting to Rs 60,940
as well as compound interest at the rate of 18 per cent per annum on the said
amount from February 10, 1977 till date of payment. The arbitrator made an
award on September 26,
1984 whereby he
awarded a sum of Rs 4,95,000 to the petitioner. The said award was, however,
set aside, in appeal, by a Division Bench of the Calcutta High Court by
judgment dated December II, 1989. Special Leave Petition (Civil) Nos. 2929-30
of 1990 filed by the petitioner against the said judgment of the Calcutta High
Court were disposed of by this Court by order dated July 23, 1990, whereby it
was directed that:
"...
in all these matters a sum of Rs 7,50,000 (Rupees Seven lakhs and fifty
thousand only) should be paid to the petitioner in full and final settlement of
these matters within 3 months from today. If the said sum is not paid within
the prescribed period the petitioner shall be entitled to interest at the rate
of 12% per annum." 372 3.While the aforementioned proceedings for setting
aside the arbitral award were pending the petitioner invoked the arbitration
clause for a second time and the same arbitrator was appointed again to
arbitrate on the dispute. The Statement of Claim for Rs 5,85,456.71 in the said
reference related to refund of the security deposit of Rs 60,943. The claim for
Rs 2,92,526.40 for loss of profit in business on account of withholding of the
sum of Rs 60,943 as well as claim for Rs 1,94,132.31 by way of compound
interest at the rate of 18 per cent per annum on the said amount of Rs 60,943
from 1978 to October 1986 and certain other incidental claims. The second
reference to the arbitration was challenged by the respondent by filing an
application under Sections 5, 11 and 33 of the Act which has been allowed by
the learned Single Judge of the High Court.
4.We
have heard the petitioner, who appeared in person, as well as Shri N.N. Gooptu,
Advocate-General for the State of West Bengal who, on the request of the Court presented his case, as
well as the learned Solicitor General for the respondent.
5.Having
regard to the claim made by the petitioner in the first reference to
arbitration which included the claim for refund of security deposit of Rs
60,943 as well as the claim for interest on the said amount and the order dated
July 23, 1990 passed by this Court on the special leave petitions filed by the
petitioner whereby it was directed that a sum of Rs 7,50,000 should be paid to
the petitioner "in full and final settlement of these matters", we do
not find any merit in the case of the petitioner. No ground is made out for
interference with the order passed by the learned Single Judge of the High
Court.
6.
Special leave petition is, therefore, dismissed. No orders as to costs.
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