PETITIONER: DAMODAR ENGG. & CONSTRUCTION & CO. Vs. RESPONDENT: BOARD OF TRUSTEES DATE OF JUDGMENT16/11/1993 BENCH: VENKATACHALLIAH, M.N.(CJ) BENCH: VENKATACHALLIAH, M.N.(CJ) AGRAWAL, S.C. (J) ANAND, A.S. (J) CITATION: 1994 AIR 1141 1994 SCC (1) 370 JT 1993 (6) 335 1993 SCALE (4)414 ACT: HEADNOTE: JUDGMENT:
ORDER
1.By this petition, the petitioner, as proprietor of M/s
Damodar Engineering & Construction Company, is seeking
special leave to appeal against the judgment dated July 17,
1992 of the learned Single Judge of the Calcutta High Court
whereby the application filed by the respondent, namely, the
Board of Trustees for the Port of Calcutta, challenging a
reference to an arbitrator and for removal of the arbitrator
under Sections 5, 1 1 and 33 of the Arbitration Act, 1940
(hereinafter referred to as ‘the Act’) has been allowed and
the reference has been superseded and the appointment of the
arbitrator, (respondent 2 in the said application of the
respondent), was revoked.
2.The petitioner entered into a contract with the
respondent in the year 1976 for construction of a permanent
road between Ranichak and the Main Feeder Road at Haldia.
The said contract contained an arbitration clause. The
petitioner, invoking the arbitration clause, referred the
disputes arising out of the contract to the arbitration of
an arbitrator appointed by the Institute of Engineers India.
The Statement of Claim filed by the petitioner before the
arbitrator covered a number of matters including refund of
security deposit amounting to Rs 60,940 as well as compound
interest at the rate of 18 per cent per annum on the said
amount from February 10, 1977 till date of payment. The
arbitrator made an award on September 26, 1984 whereby he
awarded a sum of Rs 4,95,000 to the petitioner. The said
award was, however, set aside, in appeal, by a Division
Bench of the Calcutta High Court by judgment dated December
II, 1989. Special Leave Petition (Civil) Nos. 2929-30 of
1990 filed by the petitioner against the said judgment of
the Calcutta High Court were disposed of by this Court by
order dated July 23, 1990, whereby it was directed that:
“… in all these matters a sum of Rs 7,50,000
(Rupees Seven lakhs and fifty thousand only)
should be paid to the petitioner in full and
final settlement of these matters within 3
months from today. If the said sum is not
paid within the prescribed period the
petitioner shall be entitled to interest at
the rate of 12% per annum.”
372
3.While the aforementioned proceedings for setting aside
the arbitral award were pending the petitioner invoked the
arbitration clause for a second time and the same arbitrator
was appointed again to arbitrate on the dispute. The
Statement of Claim for Rs 5,85,456.71 in the said reference
related to refund of the security deposit of Rs 60,943. The
claim for Rs 2,92,526.40 for loss of profit in business on
account of withholding of the sum of Rs 60,943 as well as
claim for Rs 1,94,132.31 by way of compound interest at the
rate of 18 per cent per annum on the said amount of Rs
60,943 from 1978 to October 1986 and certain other
incidental claims. The second reference to the arbitration
was challenged by the respondent by filing an application
under Sections 5, 11 and 33 of the Act which has been
allowed by the learned Single Judge of the High Court.
4.We have heard the petitioner, who appeared in person,
as well as Shri N.N. Gooptu, Advocate-General for the State
of West Bengal who, on the request of the Court presented
his case, as well as the learned Solicitor General for the
respondent.
5.Having regard to the claim made by the petitioner in
the first reference to arbitration which included the claim
for refund of security deposit of Rs 60,943 as well as the
claim for interest on the said amount and the order dated
July 23, 1990 passed by this Court on the special leave
petitions filed by the petitioner whereby it was directed
that a sum of Rs 7,50,000 should be paid to the petitioner
“in full and final settlement of these matters”, we do not
find any merit in the case of the petitioner. No ground is
made out for interference with the order passed by the
learned Single Judge of the High Court.
6. Special leave petition is, therefore, dismissed. No
orders as to costs.
373