Modern India Builders vs President, Super Bazar ...
1990 Latest Caselaw 404 Del

JUDGMENT

P.K. Bahri, J.

(1) This is a petition filed under Section 20 of the Indian Arbitration Act seeking directions for filing the arbitration agreement and for appointment of arbitrator and for reference of disputes as mentioned in annexure 'A' attached with the petition for decision by the arbitrator. Reply has been filed by the respondents in contesting the petition.

(2) Only legal questions have been raised and thus, I have heard arguments for deciding the petition finally.

(3) The first contention raised by the learned counsel for the respondents is that the petition is not maintainable inasmuch as in the body of the petition the petitioner has not mentioned about the disputes which are liable of be referred to the arbitrator and he has placed reliance on Villayati Ram Mittal v. Union of India & Others, Air 1981 Delhi 313 and M/s. Rai Bahadur Basakha Singh & Sons (Contractors) Private Limited v. M/s. Indian Drugs & Pharmaceutical Ltd., , in support of his contention.

(4) Counsel for the petitioner, on the other hand, has contended that the petition itself recites that the disputes which are sought to be referred to the arbitrator are detailed out in annexure 'A' attached with the petition and thus, annexure 'A' becomes part of the petition and hence, there is no merit in the contention raised by the learned counsel for the respondents and the judgments cited by the learned counsel for the respondents are distinguishable on facts.

(5) In para 3 of the petition it has been specifically mentioned that the petitioner invokes the arbitration clause and the claims/disputes are tabulated in annexure 'A' attached with the petition. So, it is evident that annexure 'A' is not a separate document and has to be treated as part of the petition. A similar question came before the Circuit Bench of Punjab & Haryana High Court at Delhi Mrs. Sarda Rani v. Malik Yashpal, 1964(66) Punjab Law Reporter 1126,-on the point whether the documents which have been referred to in the plaint are to be treated as part of the pleadings or not? It was held that the object of pleadings is to ascertain for the guidance of the parties and Court material facts in issue, with the result that pleadings are not to be too strictly, narrowly or pedantically construed and where a document is referred to and relied on in the pleadings, the contents of that document might well be considered to constitute a part of the pleadings. In the said case, the document happened to be a notice by the landlord to the tenant relating to the subject matter of the controversy. It was held that the contents of such documents are to be deemed part of the pleadings and the opposite parly is fixed with the knowledge of such contents. In re: Pandam Tea Company Limited, 1972 Taxation Law Reports 1923, a Single Judge of the Calcutta High Court also held that annexures to the pleadings are part of the pleadings.

(6) In the case of M/s. Rai Bahadur Basakha Singh (supra) a Single Judge of this Court held that where an application for filing arbitration agreement does not contain particulars of items of disputes to be referred,reference to arbitral or cannot be made and the plea that copies of notice and other documents accompanying the petition contain the particulars of dispute is not available as those documents do not form part of the petition. On facts the case is distinguishable. Mere fact that some documents have been filed Along with the petition would not make those documents part of the pleadings but if the documents are referred to and relied upon in the petition or plaint, they obviously become part of the petition or the plaint. Similarly in the case of Villayati Ram (supra), it was laid down that the petition under Section 20 of the Arbitration Act for filing of agreement and making an appointment of an arbitrator would not be maintainable in absence of pleadings of disputes even if the letter which was served upon the respondents with items of disputes and requiring appointment of arbitrator was attached to the petition but such letter could not be taken as part of the pleadings. This-case is again distinguishable on facts because here annexure 'A' is not merely attached as a document with the petition but has been made part of the pleadings by making a reference to the same in para 3 of the petition and having been relied upon the same by the petitioner. A bare perusal of the petition in the present case makes it abundantly clear that annexure 'A' which tabulates the disputes/claims which are referable to the arbitrator has been made part of the pleadings and thus, it cannot be said that the said annexure 'A' cannot be taken note of in order to decide as to what disputes have been sought to be referred to the arbitrator by the petitioner. I find no merit in this contention of the learned counsel for the respondents.

(7) The learned counsel for the respondents has then argued that the particular clause sought to be treated as arbitration clause by the petitioner is, in fact, not arbitration clause because the clause does not show that parties intended that their disputes should be decided by arbitration. The relevant part of the clause is to the following effect as appearing in the contract between the parties: "In case of any dispute the decision of the General Manager, Super Bazar Cooperative Store Limited, shall be final and binding."

Mere fact that the words "arbitration" or "award" have not been used in the aforesaid clause would not mean that the said clause does not amount to arbitration agreement. A similar type of clause cams up for consideration before a Single Judge of Punjab & Haryana High Court in Girdhari Lal Bansal v. The Chairman, Bhakra, Beas Management Board, Chandigarh & Others, . In the said case, the clause in the works contract provided that the disputes arising from the contract between the parties shall be referred to the Superintending Engineer of the Circle. It was held that though the words "arbitrator and award" were not mentioned in the clause but the clause was clear enough to show that the dispute which was to arise between the parties had to be referred to the Superintending Engineer and thus, the Superintending Engineer was to be treated as an arbitrator and his decision was to be treated as an award. It was held that it cannot be said that there was no agreement between the parties to refer dispute to him for adjudication. In M/s. Bharat Lal & Company v. Union of India & Another, , a Division Bench of this Court considered the clause which provided that all to disputes under the contract and in connection with the contract will be referred Divisional Superintendents and his decision will be final. The .words "arbitrator" and "award" were not used in the aforesaid clause, still it was held that the same amounted to an arbitration agreement. So, it has to be held that the clause in question which contemplates reference of the disputes arising from the contract for decision of General Manager, Super Bazar, v/hose decision shall be final and binding, amounts to an arbitration clause and I negative this contention of the learned counsel for the respondents as well.

(8) Lastly, it has been contended that the petitioner has not submitted complete bill and despite reminders being issued to the petitioner he did not submit the details of the bill in order to enable the respondents to verify the same. However, this question would be decided by the arbitrator whether the bill submitted by the petitioner was in order or not. The disputes mentioned in annexure 'A' apparently arise from the contract between the parties. The petitioner had been given a contract for the work of renovation of Coffee House at Super Bazar by the respondent and thus, the claims made by the petitioner in annexure 'A' cannot be said to be not arising from the said contract because his claim to the tune of Rs, 1,71,453.00 is in respect of the work done in pursuance to the said contract and second claim pertains to the refund of the security amount deposited in pursuance to that contract and third claim pertains to the costs which may be incurred in arbitration proceedings and fourth claim pertains to the damages suffered by the petitioner on account of some alleged breaches of the contract committed by the respondents and the last claim pertains to the interest on the amount which may be found due. However, in the last claim it is clarified that the arbitrator shall not have jurisdiction to award any pendente lite or future interest.

(9) I, hence, allow this petition and direct that the arbitration agreement be filed and the disputes as mentioned in my order above are, hereby, referred to the General Manager, Super Bazar, for his decision in accordance with law. He shall give the award within four months from entering upon the reference.