Andhra HC (Pre-Telangana)
Unionof India And Others vs Vungarala Constuructions, Hyd. And ... on 19 July, 2001
Equivalent citations: 2001(5)ALD79
Author: S.B. Sinha
Bench: Chief Justice
ORDER S.B. Sinha, C.J.
1. The question which arises for consideration in these writ petitions is as to whether, in view of the purported 'no-claim certificate' issued by the 1st respondent herein, an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the 1996 Act") was maintainable.
2. It is not disputed that the parties hereto entered into an agreement as regards work of diversion of Up line from Channel 169M (km 318/5) to Channel 3318M (Km 321/13) between Bisugirsharrif and Potkapalli Station on Kazipet - Balarsha section construction of well foundation and substructure, superstructure with prestressed concrete girders deck slab, etc., for rebuilding of bridge No.66 as 27 x 18.1630 M for Up main line across Manair river including earth work in approach in embankment on either side of the bridge including extension of minor bridge No.65 and 67".
3. Disputes and differences having arisen between the parties, the same had been referred to a Departmental Committee. Allegedly thereafter the 1st respondent continued with the work and filed a no claim certificate. Despite the same a demand was made for referring the claim to an Arbitrator which was not acceded to by the petitioner herein. An arbitration application was filed before this Court under Section 11(6) of the 1996 Act. A learned single Judge of this Court by an order dated 5-12-2000 allowed the said application.
4. Mr. Sanghi, the learned Counsel appearing on behalf of the petitioner has raised a short question in support of these petitions. The learned Counsel would contend that having regard to the arbitration clause contained in clause 63 of the contract, the excepted matters would could not be referred to arbitration. He would further submit that in view of the acceptance of the decision of the Departmental Committee by the 1st respondent, as far back as on 4-3-1993, the reference was not maintainable. Reliance in this connection has been placed on V.M. Thomas v. Tata Projects Limited, Hyderabad, .
5. The learned Counsel for the 1st respondent on the other hand would submit that the reference to the departmental committee was merely a reference to a pre-arbitral Tribunal. Our attention has been drawn to the no claim qualified certificate from a perusal whereof it appears that a claim of Rs.20,23,200/- was made therein and the 1st respondent had agreed and undertaken not to make any claim or whatsoever against the South Central Railway at any time thereafter which is to the following terms:
We hereby admit and acknowledge that we have no claim or claims whatsoever against the South Central Railway Administration under or by virtue of or arising out of the contract agreement No.13/CAD/C/SC/ 1991 dated 1-5-1991 for......
Although we preferred 15 claims before the Department Committee constituted in South Central Railway No.., dated 16-11-1993, the following 3 claims only were considered by the Departmental Committee and a meagre amount of Rs.24-69 lakhs paid against our claim amount of Rs.195.21 lakhs for these 3 claims since it was only a temporary relief pending arbitration.
.....
Hence, we request that the 15 claims totalling to Rs.1,90,74,334/- (balance amount of claims 1,6 and 15 -Rs.1,70,51,134/- + amount of the other 12 claims - Rs.20,23,200/-) may either be paid to us along with interest @ 18% per annum, from final date of completion of work till the date of actual payment or referred for arbitration as per clauses 63 and 64 of GCC.
We hereby further admit that our only claims now subsisting against the South Central Railway administration under or by virtue of or arising out of the aforesaid contract are as detailed above.
We hereby further agree and undertake not to make any claim or claims whatsoever against South Central Railway administration at any time hereafter under or by virtue of or arising of the aforesaid contract save and except the subsisting claims more particularly specified in the preceding paragraph.
6. The said purported no claim certificate has to be read as a whole. From a perusal of the said certificate it is evident that purported no claim certificate was a qualified one and as such the same cannot stand as a bar. At this juncture, it was submitted by the learned Counsel for the petitioner that some interpolations have been made in the said certificate. We, in exercise of our writ jurisdiction, cannot go into such a question.
7. There is no dispute that in the agreement dated 1-5-1991 an arbitration clause exists. It is not for this Court, in exercise of its jurisdiction under Section 11(6) of the 1996 Act, to enter into the merit of the matter. The acknowledgment of receipt of the amount delivered pursuant to the report was also conditional and qualified one and pending arbitration and in that view of the matter there cannot be any doubt whatsoever that the dispute as to whether there exists any claim or not falls within the domain of the Arbitrator and not of this Court. This aspect of the matter is squarely covered by a Division Bench decision of this Court in Union of India v. Vengamamba Engineering Company, Juputi, Krishna District, , wherein it has been held:
But, decision on a question as to whether an arbitration agreement exists at all or not inasmuch may attract the ambit of jurisdiction as even as administrative order can only be exercised provided the Chief Justice or his nominee satisfied himself as regards his jurisdiction under Section 11(6) of the Act or not.
8. The decision of this Court in V.M. Thomas case (supra) is not applicable in the facts and circumstances of this case. The Division Bench in Vengamamba Engineering Company's case (supra) has taken note of the said decision and distinguished the same. It is not a case where the learned Judge has refused to appoint an Arbitrator. As the Arbitrator has been appointed, these writ petitions are not maintainable.
9. For the aforesaid reasons, these writ petitions are accordingly dismissed. There shall be no order as to costs.