TaxTMI 
TaxTMI 
2018 (12) TMI 2002
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.... arisen in Mumbai and all legal proceedings in respect of any such claim, dispute or difference shall be instituted in a competent court in the city of Mumbai only. If any dispute, difference or claim is raised by either party relating to any matter arising out of the contract, the aggrieved party may refer such dispute within a period of 7 (seven) days to the concerned Deputy Municipal Commissioner (DMC) of Municipal Corporation of Greater Mumbai, who shall constitute a committee comprising of 3 (three) MCGM Officers i.e., concerned DMC or Director (ES & P), Chief Engineer other than the Engineer of contract & concerned C.A. the committee shall give decision in writing within 60 (sixty) days. Appeal from the order of the Committee may be referred to Municipal Commissioner (M.C.) of Municipal Corporation of Greater Mumbai within 7 (seven) days. Thereafter, M.C. shall constitute the committee comprising of 3 (three) DMC including DMC in charge of finance Department. The decision given by this Committee shall be final and binding upon the parties/bidders. 4. However, when the Tender Notice was accepted and an agreement between the parties was entered into, Clause 13 of the Gener....
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....icer Shri A.M. Agashe-Asst. Engineer (Meter Workshop) (City), who was present in the Court was not aware that contract has no arbitration Clause which is as follows: 17. Disputes and Arbitration: 13.1 No Arbitration is allowed. 13.2 In case of disputes or difference of opinion arising between the Hydraulic Engineer and the bidder, the bidder can refer the matter to the Municipal Commissioner of Greater Mumbai with an advance copy to the Hydraulic Engineer and the decision of Commissioner will be final in such case. I say that Shri A.M. Agashe-Asst. Engineer (Meter Workshop) (City) is not empowered to take decision regarding appointment of the Arbitrator in the above Petition. 7. By an order dated 12.09.2017, the learned single Judge referred to the recall application and the affidavit of the Commissioner, and also referred to Clause 13 of the General Conditions of Contract and Clause 22 of the Tender Notice and observed that they were not arbitration clauses at all, but in-house proceedings, which could be taken at the behest of the aggrieved party. This being so, the learned single Judge recalled the order appointing Justice V.M. Kanade (retired) as a sole Arbitrator. An ....
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....that the said Clause has a marginal note which reads: Jurisdiction of Courts. The first paragraph of Clause 22 specifically deals with competent courts in the city of Mumbai only having exclusive jurisdiction in respect of claims, disputes etc. arising in respect of the contract. The second paragraph and the third paragraph, according to Shri Naphade, would amount to an arbitration Clause as the Committee mentioned therein is to give a decision, which is appealed again before another Committee which gives a decision which shall be final and binding upon both the parties. We are of the view that Clause 22 deals with disputes that may arise under the agreement which can either be dealt with by an in-house procedure or by courts, as the case may be. By no stretch of imagination could this in-house procedure be stated to be an agreement to arbitrate between the parties. In any case, what is important on the facts of this case, is that neither of these clauses has been invoked. The Court's order dated 27.06.2017, clearly shows that Justice Kanade was appointed as Sole Arbitrator thanks to Mr. Agashe, Assistant Engineer, having no objection to the same. As has been stated in the reca....
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.... of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches. The same view was expressed by their Lordships of the Privy Council in R.M.A.R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar, (1947) 74 I.A. 264, wherein it was said: Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary Rules of procedure, applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal. Again in Secretary of State for India v. Chellikani Rama Rao, (1916) I.L.R. 39 Mad. 617, when dealing with the case under the Madras Forest Act their Lordships observed as follows: It was contended on behalf of the Appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute just quoted. In their Lordships' opinion this objection is not well-founded. Their view is that when proceedings of this character reach the District Court, that Court is appea....