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1979 Supreme(Ker) 28
Judges : GEORGE VADAKKEL
THRESIA - Appellant
Versus
STATE OF KERALA - Respondent
Case No : C.R.P. No. 3348, 3349 of 1978
Decided On : 02/01/1979
Advocates Appeared :
M.A. George; K.L. Varghese; For Petitioners Government Pleader; For Respondents
The main legal point established in the judgment is the court's authority to grant interim injunctions and authorize local inspection for arbitration proceedings under S.41(b) of the Arbitration Act, 1940, and the limitations of the court's authority in determining the quantum of work and examination of the commissioner for arbitration purposes.
Headnote:
Arbitration Act - Government Contractor - S.20 of the Arbitration Act, 1940 - S.41(b) of the Act - Second Schedule to the Act - Interim Injunction - Court's Power - Quantum of Work - Commissioner's Examination - Court's Authority - Local Inspection - Arbitration Proceedings
Fact of the Case:
Varoo, a Government Contractor, died before completing a work. His widow and children filed a suit under S.20 of the Arbitration Act, 1940. The lower court allowed the suit and made an order of reference to the appointed arbitrator. Various issues were referred, including final bill payment, extra payment for additional lead, refund of security deposit, and declaration of balance works. The court also dealt with applications for interim injunction and examination of the commissioner.
Finding of the Court:
The court found that the lower court had the power to grant interim injunctions under S.41(b) of the Act and the Second Schedule, even when no proceedings were pending in court, provided arbitration had commenced. The court also clarified the scope of the court's authority in relation to local inspection and examination of the commissioner for arbitration proceedings.
Issues: The issues included the entitlement to various payments, refund, and declaration of balance works. The court also addressed the maintainability of the applications for interim injunction and commissioner's examination.
Ratio Decidendi: The court's decision was influenced by the interpretation of S.41(b) of the Act and the Second Schedule, which granted the court the power to grant interim injunctions and authorize local inspection for arbitration proceedings. The court also clarified the limitations of the court's authority in determining the quantum of work and examination of the commissioner for arbitration purposes.
Final Decision: The court disposed of the revision petitions, allowing the appointment of an engineer commissioner to measure and ascertain the quantum of work done by Varoo. The court also restrained the respondents from altering the work for a specified period. The court dismissed one revision petition and ordered the parties to bear their costs.
1. Varoo was a Government Contractor. He died on 13-5-1977 before completion of a work he had undertaken to execute. The 1st respondent-State entrusted the execution of the balance work to one Joseph. Varoo's widow and children, the revision petitioners, then filed a suit under S.20 of the Arbitration Act, 1940. (for brevity, the Act). The lower court allowing the suit has made an order of reference to the appointed arbitrator-the Chief Engineer (Arbitration)- as per its decision dated 28-10-1978. The points referred are:
(1). Whether the plaintiffs are entitled to an amount of Rs. 1,25,5000.00 or any other amount by way of final bill payment due for works done by late Sr. A. I. Varoo under Agreement No. 3/SEMI/1975-76 dated 27-10-1975.
(2). Whether the plaintiffs are entitled to extra payment for additional lead for the conveyance of earth done by late Sri. A. I. Varoo involving a distance of about 8 KM as against 3 KM specified in the agreement and if so what is the amount payable by the Defendants to the plaintiffs.
(3) Whether the plaintiffs are entitled to refund of the security Deposit and retention amounts pertaining to contract Agreement No. 3/SEMI/1975-76 dated 27th October 1975 lying to the credit of late Sri. A.1. Varoo with the Defendants.
(4). Whether the Plaintiffs are entitled to a declaration that the balance works under contract No. 3/SEMI/1975-76 dated 27-10-1975 if any, got executed or to be got executed by the Defendants, the same shall not be at the risk and cost of the estate of late Sri. A. I. Varoo or his legal heirs or successors
(5) Interest pendent lite.
(6) Costs
(7) What are the reliefs to be granted against the above issues in favour of the plaintiffs.
2. As per order on I. A. 467 of 1978 the lower court had restrained the respondents (the 2nd respondent is the concerned Superintending Engineer) from altering, modifying, destroying or in any way changing the work already carried out by Varoo till 'proper measurements' thereof are taken. On 28-10-1978 the lower court dismissed this application on the ground that the suit has been disposed of. In CRP. 3348 of 1978 directed against this order of dismissal of I.A. 467 of 1978 it is contended that the lower court should have continued the injunction granted and that the lower court has, notwithstanding the disposal of the suit under S.20 of the Act, power to grant interim injunction. The learned counsel for the revision-petitioners rely on S.41 (b) of the Act and item 4 in the Second Schedule to the Act.
3. During the pendency of the suit, at the instance of the revision petitioners, a commission was issued to the take the measurements of the work done by Varoo. He submitted a report. Dissatisfied with it the revision petitioners by I. A. 1092 of 1978 sought to have the commissioner, a retired engineer, summoned and examined in court. The lower court dismissed this application by order dated 17-10-1978 which is under challenge in CRP. 3349 of 1978.
4. The learned Government Pleader raised a preliminary objection to the maintainability of CRP. 3348 of 1978 on the ground that the order dismissing an application for temporary injunction is an order appealable under 0.43 R.1(r) of the Code Civil Procedure, 1908. S.41 of the Act by clause (a) thereof makes the provisions of the Code applicable to all proceedings before Court, and to all appeals, under the Act, but subject to the provisions of the Act and rules thereunder The provisions in the Code conferring right of appeal have to be read subject to S.39 of the Act; this means that only such orders passed under the Act as are mentioned therein are appealable. See Gopal v. M. P. Sundari (AIR. 1955 Patna 277 (280). Therefore, S.104(1)(i) of the Code read with 0.43 R.1(r) therein does not govern an order passed on an application for interim injunction filed under S.41 of the Act, be it under clause (a) or clause (b) thereof. There is no merit in the preliminary objection.
5. In view of S.41(b) of the Act. a
