TaxTMI 
TaxTMI 
TaxTMI 
1999 (5) TMI 592
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....ng the adjudicator, shall be final and binding between the parties - this is what popularly known as 'excepted matters' in a Government or Governmental agencies' contract. 'Excepted matters' obviously, as the parties agreed, do not require any further adjudication since the agreement itself provides a named adjudicator - concurrence to the same obviously is presumed by reason of the unequivocal acceptance of the terms of the contract by the parties and this is where the courts have found out lacking in its jurisdiction to entertain an application for reference to arbitration as regards the disputes arising therefrom and it has been the consistent view that in the event the claims arising within the ambit of excepted matters, question of assumption of jurisdiction of any arbitrator either with or without the intervention of the court would not arise; The parties themselves have decided to have the same adjudicated by a particular officer in regard to these matters: what are these exceptions however are questions of fact and usually mentioned in the contract documents and forms part of the agreement as such there is no ambiguity in the matter of adjudication of these specialised matt....
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.... demand is not made within that period, the claims, of the contractors shall be discharged and released of all liabilities under the contract in respect of these claims. It is further provided that the Arbitrator may, from time to time, with the consent of the parties enlarge the time for making and publishing the award. In all cases where the claim in dispute is Rs,25,000/- and above the arbitrator shall record the reasons for his award. Subject as aforesaid the Arbitration Act 1940 shall apply to the Arbitration proceedings under this clause. The costs of and in connection with Arbitration shall be in the discretion of the arbitrator who may make a suitable provision for the same in his award". Turning now on to the contextual facts, it appears that by reason of certain disputes between the parties the Respondent herein instituted a suit under Section 20 of the Arbitration Act for the purposes of filing the Arbitration Agreement in Court being CSNo.304 of 1982. Incidentally, be it noted that in the plaint filed in the suit the Respondent herein has included four several claims of which the fourth claim pertains to the excepted matters in terms of clause XII of the agreement. T....
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....lapse and unworkmanlike performance of the Respondent herein in performing their duties and obligations under the contract. In paragraph 11 of the plaint, the Plaintiff prayed before the Court the following: "(a) directing the defendants jointly and severally to pay the plaintiff the sum of Rs.1,89,775.00 (Rupees One lakh eighty nine thousand seven hundred and seventy five only) together with interest at 18 per cent per annum on the said sum from the date of plaint till date of realisation; (b) directing the defendants to pay the costs of the suit; and (c) pass such further or other relief as this Hon'ble Court may deem fit and proper and render justice. Significantly enough in paragraph 8 of the Plaint, the appellant Food Corporation of India being the Plaintiff therein stated as below: "8. The Senior Regional Manager, Food Corporation of India, Tamil Nadu Region, as the Head of the Offices of the Corporation in the State of Tamil Nadu and as party to the tender contract is entitled to and competent to file the suit for the recovery of the sum due to the Corporation, as set out in this Plaint. The District Manager, Madras Distrcit of the Food Corporation of India is also a Pri....
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....hat regard but the fact remains that in fact, there was an abandonment of a right of adjudication by one of the Corporation's officer so far as the wharfage claim is concerned and it is on this perspective that the Appellate Bench of the High Court was pleased to direct that all the issues in dispute in suit No.C.S. 304 of 1982 shall be referred to L.R.Kohli, Arbitrator. The High Court as a matter of fact came to a conclusion that the dispute in Civil Suit No.368 of 1986 has intrinsic connection with the fourth claim of the Respondent herein in Suit No.304 of 1982. The Appellate Bench observed: "Since three of the four times of the disputes between the parties in C.S.No.304 of 1982 have been referred to arbitration, it is indeed improper to exclude one item in respect of damage connected with the other matter which is before the Arbitrator for Court's adjudication. There can be in a situation like this conflict in the pronouncements all connected facts and the Arbitrator may take one view and the court another depending upon evidence brought before the court and the Arbitrator respectively by the parties. There can be no finality to the adjudication in this behalf until all procee....