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2013 Supreme(SC) 940

G.S.SINGHVI, V.GOPALA GOWDA, C.NAGAPPAN
Vishnu – Appellant
Versus
State of Maharashtra – Respondent


Judgement Key Points

What is the distinction between expert determination and arbitration? Whether Clause 30 of B-1 Agreements is an arbitration clause?

Key Points: - The main question is whether Clause 30 of B-1 Agreements entered into between the Government of Maharashtra and the appellant constitutes an arbitration clause under the Arbitration Act, 1940 [1000533050001] (!) - Clause 30 makes the Superintending Engineer's decision final, conclusive, and binding on matters relating to specifications, designs, quality of workmanship, materials, claims, etc., arising from the contract (!) (!) [1000533050014] - Clauses 29 and 30 confer supervisory control on the Superintending Engineer as a departmental dispute resolution mechanism, not arbitration [1000533050016] - Distinction between expert determination (uses own expertise, makes enquiries) and arbitration (judicial function, evidence, law application) per Russell on Arbitration [1000533050017] (!) - Relied on State of U.P. v. Tipper Chand (1980) 2 SCC 341, holding similar clause not an arbitration agreement as no reference to dispute or arbitrator [1000533050018] (!) (!) - Distinguished Mallikarjun v. Gulbarga University (2004) 1 SCC 372 due to differences: SE not supervisory authority there, explicit dispute reference [1000533050027] (!) (!) [1000533050029] - Superintending Engineer cannot act as arbitrator due to supervisory role, risking bias; cannot judge own decisions [1000533050025] (!) - Trial court wrongly appointed Chief Engineer as arbitrator; High Court correctly held Clause 30 not arbitral [1000533050009][1000533050030] - Government circulars interpreting Clause 30 as arbitration not binding on courts [1000533050015] (!) [1000533050031] - Appeals dismissed, confirming Clause 30 is not an arbitration clause [1000533050032]

What is the distinction between expert determination and arbitration?

Whether Clause 30 of B-1 Agreements is an arbitration clause?


Judgment :-

G.S. Singhvi, J.

1. Whether Clause 30 of B-1 Agreements entered into between the Government of Maharashtra and the appellant is in the nature of an arbitration clause is the question which arises for consideration in this appeal filed against judgment dated 6.5.2004 of the learned Single Judge of the Bombay High Court, Aurangabad Bench.

2. The tenders submitted by the appellant, who is now represented by his legal representatives, for Tondapur Medium Project, Jalgaon Medium Project Division, Jalgaon and Hatnoor Canal Division No.3, Chopda, District Jalgaon were accepted by the Competent Authority and five agreements were executed between the parties on 19.5.1983 and 5.10.1983 (hereinafter referred to as ‘B-1 Agreements’).

3. In January 1985, the appellant abandoned the works and submitted bills for the works already done. He also claimed damages in lieu of the alleged loss suffered by him.

4. After four years, the appellant served notice under Section 80 CPC and then filed Civil Suit No.995/1989 before the trial Court for declaring the recovery proceedings initiated by the defendants as illegal, null and void.

5. During the pendency of the suit, the appellant filed an applica
























































































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