TaxTMI 
TaxTMI 
1999 (7) TMI 712
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....Clause 25(1) of the agreement and unilaterally terminated the contract. Therefore it is necessary to appoint an arbitrator to adjudicate the entire disputes between the applicant and the 1st respondent relating to the contract. 2. The respondents have resisted this arbitration request on several grounds. The main objection raised by the 1st respondent is that the applicant has filed this arbitration request without complying with the procedure laid down in Clauses 24 and 25 of the agreement and therefore, this arbitration request is not maintainable being premature. 3. Clause 24 of the agreement deals with disputes which reads as follows : "24. Disputes. 24.1 If the Contractor believes that a decision taken by the Engineer was either outside the authority given to the Engineer by the contract or that the decision was wrongly taken, the decision shall be referred to the Adjudicator within 14 days of the notification of the Engineer's decision." Therefore, it is clear that the contractor has right to refer the decision taken by the Engineer to the adjudicator within 14 days of the notification of the Engineer's decision, if he believes that the deci....
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....led to move this Court to appoint an arbitrator as per the provisions of the Arbitration and Conciliation Act, 1996 without resorting to take steps for a decision by the Engineer and then decision by the adjudicator with regard to the disputes involved in this case, since the provisions of the Arbitration and Conciliation Act with regard to the appointment of arbitrator are specifically made applicable as per the terms of the agreement. Therefore, according to him, the above arbitration request filed by the applicant under the Arbitration and Conciliation Act is perfectly maintainable as it is in compliance of the provisions of Arbitration and Conciliation Act, 1996 and the scheme framed thereunder. 6. As already noted, the scheme provided under the agreement Ext. P4 is reference of the dispute to the decision of the Engineer, if not satisfied by the Engineer's decision, to refer the same to the adjudicator and if dissatisfied with the decision of the adjudicator, to refer the dispute to the arbitrator in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The contract data appended to the agreement which form part of the agreement shows that the En....
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....ispute in the agreement they cannot jump to the second step or to the final step to settle the disputes between the parties. The contention of the applicant that since the contract is unilaterally and illegally terminated by the 1st respondent the Clause s in the contract with regard to the decision by the Engineer and then by the adjudicator named in the contract also came to an end with the termination of the contract, is not sustainable. Even after the execution of the contract or termination of the contract before the execution of the contract if there is any dispute with regard to the amounts due and payable under the contract between the contractor and the employer and those disputes are alive the clause in the agreement with regard to arbitration will be alive, valid and binding upon the parties irrespective of the completion of the work or unilateral termination of the contract before the execution of the contract. 7. It has to be noted that if there is any dispute between the applicant and the 1st respondent with regard to the execution of the work, payments to be made etc. as per the terms of the contract, the same should have been referred to the engineer for his deci....
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....observed as follows (At p. 957, para 17 of AIR): "A closer scrutiny of Clause 3.3.29 clearly suggests that the parties intended to enter into an arbitration agreement for deciding all the questions and disputes arising between them through arbitration and thereby excluding the jurisdiction of ordinary civil Courts. Such reference to arbitration is required to be preceded by a decision of the Superintending Engineer and a challenge to such decision within 28 days by the party feeling aggrieved therewith. The steps preceding the coming into operation of the arbitration clause though essential are capable of being waived and if one party has been its own conduct or the conduct of its officials, disabled such preceding steps being taken, it will be deemed that the procedural prerequisites were waived. The party at fault cannot be permitted to set up the bar of non-performance of prerequisite obligation so as to exclude the applicability and operation of the arbitration clause." 10. In that case the party at fault for non-compliance of the preceding steps enshrined in the agreement to enforce the arbitration clause contended that the opposite party is not entitled to enforce....