Advocates appeared :
For the Appellant : S. Rao
For the Respondent : A. P. Singh.

ORDER : – This revision under section 19 of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as Act of 1983) takes exception to award dated 29-11-2001, passed by Madhya Pradesh Arbitration Tribunal, Bhopal, in reference case No. 15/98, rejecting the claim of the applicant.

2. Brief facts for adjudication of the present revision are that the applicant was awarded contract for construction of medium bridge in km of 13/10 of Jhipra Chawalpani Road on 26-2-1992. The applicant claimed that on account of various reasons he suffered loss and, therefore, he preferred reference petition under section 7 of the Act of 1983 claiming a sum of Rs. 6,29,672/- against the respondents.

3. The respondents have denied the aforesaid claim and have submitted that incomplete work left out by the applicant was got completed by debitable Agency Vide Exhibit- D/20 and a sum of Rs. 3,52,452/- was paid to the debitable Agency, therefore, the respondents are entitled for adjustment of the said amount from the applicant.

4. The learned Arbitral Tribunal after recording the evidence, vide impugned award has found that the applicants are entitled for Rs. 85,849/- under different heads. However, it has been held that as per Clause 3(c) of the agreement, if any unexecuted work is left by contractor, the employer is entitled to get it completed by any other agency and the amount incurred in getting such work completed would be recovered/adjusted from the contractor. Therefore, the respondents were entitled for adjustment for the amount of the debitable charges of Rs. 3,52,452/- and hence, the claim of the petitioner was rejected.

5. We have heard the counsel appearing for the parties and perused the record.

6. Learned counsel for the applicant has placed reliance on the decision of the Full Bench of this Court in the matter of Ravikant Bansal, Engineers and Contractors vs. Madhya Pradesh Audyogik Vikas Nigam Gwalior, 2006(2) M.P.L.J. (F.B.) 299 and the decision in the matter of Dr. Surendranath Reddy vs. State of M. P., Civil Revision No. 1973/2000, order dated 21-9-2015. According to him the Arbitral Tribunal has erred in allowing the counter claim of the respondents. Unless the dispute is first referred to the final authority in terms of the works contract, the counter claim was not maintainable. He states that the Tribunal should only entertain a counter claim preferred by the opposite party, when the same is first referred to the final authority for final decision under the terms of the contract. No other point is argued/pressed by the learned counsel for the applicant.

7. Learned counsel appearing for the State has supported the impugned award, and states that in view of the finding recorded in paragraph No. 20 of the impugned award to the effect that the applicant did not dispute the amount incurred in getting the work completed from debitable Agency, it cannot be said that the principles applicable to the counter claim needs to be followed. He further submits that the agreement in question was executed prior to coming into force of the substituted provision of section 7-B of the Act of 1983 and for this reason also the present revision deserves to be dismissed. He distinguishes the decision cited by the learned counsel appearing for the applicant on facts. He placed reliance on decisions in the matter of P. K. Pande vs. State of M. P., 2000(1) M.P.L.J. 367, Narayan Prasad Lohia vs. Nikunj Kumar Lohia and others, (2002) 3 SCC 572, Union of India vs. Susaka Private Limited and others, (2018) 2SCC 182 and ARCE Polymers Pvt. Ltd. vs. M/s Alphine Pharmaceuticals Pvt. Ltd. and ors., 2021 SCC Online 1169, Civil Appeal No. 7372/21 dated 3-12-2021.

8. The learned Arbitral Tribunal while passing an order of adjusting an amount incurred for getting the incomplete work completed by the debitable Agency has clearly recorded a finding in paragraph No. 20 that the applicants did not deny the fact of getting the work completed from the