JUDGMENT
D.P. Wadhwa, J.
1. The is a petition under Section 20 of the Arbitration Act.
2. The Petitioner, a contractor who works in the name of Vishal Construction Company was awarded the work of widening and extension of an arch bridge including dismantling of the existing arch bridge at km. 5.96 near Delhi Shahdara Railway Station in connection with construction of Shahdara-Saharanpur Broad Gauge Line (SSBL) Project. This way by letter dated 30th January, 1984 of the Chief Engineer (Construction), Northern Railway, Kashmere Gate, Delhi and the work was to be completed within a period of six months. The work was not completed in spite of extensions granted by the respondent. It is alleged by the respondent that the work was abandoned by the contractor and ultimately a notice terminating the contract was issued. The contractor, however, lays the blame for non-completion of the work on the respondent.
3. The contract contained the usual arbitration clause, it being Clause No. 64 of the General Conditions of Contract, Regulations and Instructions for Tenderers and Standard Forms of Contract (1971 edition). This clause constitutes the arbitration agreement between the parties. Disputes and differences having arisen the contractor invoked the arbitration clause and thereafter the present petition came to be filed. The disputes are mentioned in para 9 of the petition. In fact, these would be the claims of the contractor and these are twenty four in number.
4. The respondent has, however, contending that the petition is not maintainable under Clause 63 of the aforesaid General Conditions of Contract which govern the subject contract and that the petitioner is not entitled for arbitration as the claims mentioned in the petition are “excepted matter.”
5. On the pleas of the parties the following issues were framed:
1. “Whether subject disputes are covered under the arbitration agreement between the parties?
2. Relief.”
6. Parties were allowed to lead evidence by means of affidavits
7. It is not necessary to set out Clauses 63 and 64 on which the parties rely. Clause 63 provides that all disputes and differences of any kind whatsoever arising out of or in connection with the contract are to be referred to arbitration after completion of certain formalities which are again not necessary herein to state. This clause also provides that the matters for which provision has been made in certain clauses of the General Conditions of the Contract or in any Clause of the Special Conditions of the Contract shall be deemed as “expected matters” and the decision thereon shall be final and binding on the contractor provided further that “expected matters” shall (sic) and specifically excluded from the purview of the arbitration clause and not to be referred to arbitration. Thus, it will be seen that the arbitration agreement would not apply to “excepted matters.”
8. The contention of Mr. Jagjit Singh, learned counsel for the respondent, that the subject claims fall within the category of “excepted matters” is on the ground the these fall within various Clauses of the “Special Conditions of Contract” in the present case. Otherwise, it is not disputed that there it an arbitration agreement between the parties which is almost all embracing.
9. If reference is made to the contract document in the present case, it will be seen that the following documents from part of the contract. This is as per recital of the contract agreement between the parties.
“(1) General Conditions of Contract Regulations and
Instruction for Tenderers, 1975.
(2) Standard schedule of rates of 1981 with
“errata”.
(3) Standard specification for material and works, 1981
with errata.
(4) Tender condition and Instruction to tenders.
as contained in tender document.”
(5) Special conditions of contract
(6) Special data and specification
But, there are no special conditions of contract as separately given and these tender documents contained”
“(1) Schedule of rates and quantities.
(2) Special tender conditions and Instructions to Tenderers.
(3) Special data specification.”
10. Thus, it was submission of Mr. D.P. Sharma, learned counsel for the petitioner, that since there was no special condition of contract in the present case, Clause 63 was inapplicable. Mr. Sharma also referred to the definition of contract as contained in the General Conditions of Contract. This is as follows:
“(g) “Contract” shall mean and include the Agreement or Work Order, the accepted schedule of rates or Schedule of Rates of Northern Railway modified by the tender-percentage for items of works quantified or not quantified, the general conditions of contract, the special conditions of contract, if any, the drawings, the specifications, the special specifications, if any, and tender forms, if any.”
11. Mr. Singh, however, said that Special data and specifications would be the special conditions of contract in the present case. But, then Mr. Sharma brought to my notice tender documents of some other contract between the Northern Railway and some other contractor for carrying out certain construction work and earth work. In this one set of documents clearly specified “Special Conditions of Contract.”
12. If reference is made to the contract documents in the present case. One set of documents is the ‘Tender conditions and Instructions to Tenderers.’ But, if that particular document set is seen the words are ‘Special General Conditions and Instructions to Tendereres.’ Would this make these conditions and instructions to tenderers are special conditions of contract? I am afraid it might not. I am quite aware of the observation of the Supreme Court in The Union of India v. D.N. Revri & Co. and Ors., that a contract being a commercial document must be interpreted in such manner as to give efficacy to the contract rather than to invalidate it. The words “Special Conditions of Contract” have been used in the present contract documents and have also been used in the definition of the word “contract” in the General Conditions of Contract quoted above. As noted above Mr. Sharma also brought to my notice contract documents of a case other special conditions of contract did form part of the contract. It is, therefore, very difficult for me to read Special Tender Conditions and Instructions to Tenderers as Special Conditions of contract. I, therefore, cannot accept the contention of Mr. Singh.
13. Once having taken this view that there are no Special Conditions of Contract or that special data and specifications as well as Special Conditions and Instructions to Tenderers do not constitute Special Conditions of Contract if I examine the claims of the petitioner I find that these would not come within the category of “excepted matters” and would thus be outside the scope of Clause 63. I need not set out the claims given in para 9 of the petition all over again herein inasmuch as the objection of the respondent was that most of these claims were barred either being covered under the clauses of the special data and specifications or Special Conditions and Instructions to Tenderers which contention I have replied. There can be no other objection that these claims/disputes did not fall within the ambit of the arbitration agreement between the parties. However, I may not that under claim No. 20 the contractor has claimed interest costs of proceedings as Rs. 5,500/-. These will be within the jurisdiction of the arbitrator. Though, Mr. Singh said that claim of interest was not maintainable under the agreement between the parties, still it will be for the arbitrator to decide if the claim of interest is maintainable or not. Under claim 22 the contractor claimed Rs. 30,000/- as loss of profit. This Mr. Sharma said was on account of illegal termination of the contract and this, to m mind, would be a dispute within the arbitration agreement between the parties.
14. It was also the agreement of Mr. Singh that most of the claims of the petitioner would be barred under various clauses of the Special Tender Conditions and instructions as well as special data and specifications. If that is so, it would be for the arbitrator to give effect to those clauses.
15. In view of my discussion above, I will hold issue No. 1 in favor of the petitioner.
16. Accordingly, the petition is allowed and disputes mentioned in para 9 of the petition are referred to arbitration in terms of the arbitration agreement between the parties. General Manager, Northern Railway will appoint the arbitrator within two months from today. There will be no (sic) as to costs.