State of Maharashtra & Ors. Vs. Naseer
EmailAppeal: Civil Appeal Nos. 8382-8386 of 2001
(Arising out of SLP (C) Nos. 16939-16943 of 2000)
(Arising out of SLP (C) Nos. 16939-16943 of 2000)
Petitioner: State of Maharashtra & Ors.
Respondent: Naseer
Apeal: Civil Appeal Nos. 8382-8386 of 2001
(Arising out of SLP (C) Nos. 16939-16943 of 2000)
(Arising out of SLP (C) Nos. 16939-16943 of 2000)
Judges: G.B. PATTANAIK & BRIJESH KUMAR, JJ.
Date of Judgment: Dec 07, 2001
Head Note:
ARBITRATION
Arbitration Act, 1940
Section 30 – Arbitration – Reference of dispute to arbitration – Existence of clause in the agreement for making reference of disputes to arbitration, a precondition. On facts, held, that clause 30 of the agreement between the parties under which the dispute was sought to be referred to arbitration not being an arbitration clause, the trial court as well as the High Court erred in construing clause 30 of the agreement to be an arbitra-tion clause. (Para 6)
Cases Reffered:
1. State of Orissa v. Damodar Das (JT 1995 (9) SC 419) (Para 6)
2. State of Maharashtra v. Ranjit Construction (Air 1986 Bombay 76) (Para 5)
3. State of U.P. v. Tipper Chand ((1980) 2 SCC 341) (Para 4)
2. State of Maharashtra v. Ranjit Construction (Air 1986 Bombay 76) (Para 5)
3. State of U.P. v. Tipper Chand ((1980) 2 SCC 341) (Para 4)
JUDGEMENT:
O R D E R
1. Leave granted.
2. This appeal by the State of Maharashtra is directed against the impugned judgment of the Bombay High Court in civil revision upholding the conclusion of the trial judge. On an application being filed by the respondent under section 30 of the Arbitration Act, the state took the stand that there was no arbitration clause in the agreement and, therefore, the question of refer-ring the disputes or differences, if any, to an arbitrator would not arise.
3. The learned trial judge, however, on construction of clause 30 of the agreement, was of the opinion that the arbitration clause does exist. The state assailed the said order in a revi-sion and the High Court having dismissed the same, the state is in appeal.
4. The only question for our consideration is, whether clause 30 of the agreement can be held to be an arbitration clause and dispute in relation to the same could be referred to an arbitra-tion. In State of U.P. v. Tipper Chand ((1980) 2 SCC 341) an identical clause came up for consideration before this Court and the Court on considering the said clause, came to the conclu-sion that neither the clause can be held to be an arbitration agreement nor even any such agreement can be spelt out from the terms by implication, inasmuch as there is no mention of any dispute much less of a reference thereof.
5. Mr. R.F. Nariman, learned senior counsel appearing for the contractor, however, submitted that even if clause 30 of the agreement would not tantamount to an arbitration clause, but, as was held by Bombay High Court in State of Maharashtra v. Ranjit Construction (Air 1986 Bombay 76), the conduct of the parties as well as the circular issued by the government would indicate that the government did agree for referring a dispute arising out of a contract for arbitration. We are not persuaded ourselves to agree with the submission, in the facts and circumstances of the pres-ent case.
6. A similar matter from the State of Orissa again came up for consideration before a three-judge bench of this Court in the case of State of Orissa v. Damodar Das (JT 1995 (9) SC 419) wherein the decision of this Court in Tipper Chand’s case (supra) has been followed. An almost similar clause has been construed not to be an arbitration clause in view of the authori-tative pronouncement of the aforesaid two decisions of this Court, we have no hesitation to come to the conclusion that clause 30 of the agreement in question does not amount to an arbitration clause. Necessarily, therefore, we set aside the impugned judgment of the Bombay High Court as well as that of the trial judge and hold that there never existed any agreement for arbitration.
7. The appeals accordingly stand allowed.
1. Leave granted.
2. This appeal by the State of Maharashtra is directed against the impugned judgment of the Bombay High Court in civil revision upholding the conclusion of the trial judge. On an application being filed by the respondent under section 30 of the Arbitration Act, the state took the stand that there was no arbitration clause in the agreement and, therefore, the question of refer-ring the disputes or differences, if any, to an arbitrator would not arise.
3. The learned trial judge, however, on construction of clause 30 of the agreement, was of the opinion that the arbitration clause does exist. The state assailed the said order in a revi-sion and the High Court having dismissed the same, the state is in appeal.
4. The only question for our consideration is, whether clause 30 of the agreement can be held to be an arbitration clause and dispute in relation to the same could be referred to an arbitra-tion. In State of U.P. v. Tipper Chand ((1980) 2 SCC 341) an identical clause came up for consideration before this Court and the Court on considering the said clause, came to the conclu-sion that neither the clause can be held to be an arbitration agreement nor even any such agreement can be spelt out from the terms by implication, inasmuch as there is no mention of any dispute much less of a reference thereof.
5. Mr. R.F. Nariman, learned senior counsel appearing for the contractor, however, submitted that even if clause 30 of the agreement would not tantamount to an arbitration clause, but, as was held by Bombay High Court in State of Maharashtra v. Ranjit Construction (Air 1986 Bombay 76), the conduct of the parties as well as the circular issued by the government would indicate that the government did agree for referring a dispute arising out of a contract for arbitration. We are not persuaded ourselves to agree with the submission, in the facts and circumstances of the pres-ent case.
6. A similar matter from the State of Orissa again came up for consideration before a three-judge bench of this Court in the case of State of Orissa v. Damodar Das (JT 1995 (9) SC 419) wherein the decision of this Court in Tipper Chand’s case (supra) has been followed. An almost similar clause has been construed not to be an arbitration clause in view of the authori-tative pronouncement of the aforesaid two decisions of this Court, we have no hesitation to come to the conclusion that clause 30 of the agreement in question does not amount to an arbitration clause. Necessarily, therefore, we set aside the impugned judgment of the Bombay High Court as well as that of the trial judge and hold that there never existed any agreement for arbitration.
7. The appeals accordingly stand allowed.
