1988 PLP 1351 (MLD)

The facts of the case are that the plaintiff is a sole proprietary firm and the plaintiff submitted tender for the work of electrical cable inter‑connection and outside lighting for refractories and line production complex and for the work of electrical installation; erection works of By‑Product Recovery Plant of Coke Oven and By‑Product Complex in 1978. It is the case of the plaintiff that the tenders were accepted by the defendants and agreements were drawn containing various terms and conditions for the execution of works. The tams and conditions need not be produced herein as they are got relevant for the purposes of these suits except as to arbitration clause which appears is both the contracts and which reads as follows:‑ Any matter required to be referred to arbitration under section 19.2 hereof shall subject to Section 20.3 hereof and in accordance with and subject to the provisions of the Arbitration Act, 1940 or any statutory modification or re‑enactment thereof for the time being in force be referred unless the parties concur in the appointment of a single, arbitrator or two arbitrators (one to be appointed by each party to the dispute or difference) who shall lay instrument in writing appoint an; umpire immediately after they are themselves appointed. The parties shall he deemed to have failed to concur ire appointing a single arbitrator if such an arbitrator shall not have 'been appointed within fourteen clear days after the service by either party on the other of a notice requesting him to concur in the appointment of such an arbitrator. If either part shall refuse or neglect to appoint an arbitrator for fourteen clear day after the other party having appointed his arbitrator has served the party making default with notice to make the appointment the party who has appointed the arbitrator shall lie entitled tip appoint that arbitrator to act as sole arbitrator in the reference." The plaintiff called upon the defendants for the appointment of arbitrator but the defendants did not comply with the above requisition. I have heard Mr.S.A.Mannan for the plaintiff and NAr.Kamal Mansoor Alam for the defendants. Mr.Kamal Mansoor Alam, the learned counsel for the defendant has raised the following contentions:‑ (1) The claim is time‑barred. (2) The claims in these suits were already referred to Sole Arbitrator Mr.Fakhruddin G.Ebrahim. (3) The applications are premature. . Reverting to the first objection raised by defendants that the claims have become barred by time. The plaintiff wrote to the Engineer incharge on 25‑3‑1985 but there was no response from him. The plaintiff wrote to the Chairman of the defendants within ninety days and thereafter the plaintiff filed the present suits. There is nothing on the record to substantiate that the claims are barred by time. The defendants can raise such a plea before the Arbitrator and this will be question for Arbitrator to consider and adjudicate upon and I would not like to enter into that controversy at this stage. Reverting to the second objection that the subject‑matters of these references were already referred to the Sole Arbitrator who gave an Award on the basis of the compromise arrived between the parties. The defendants have not placed the copies of reference agreement on the record except the compromise application filed by the parties before the learned Arbitrator. In the circumstances there is nothing to substantiate the objection raised by the defendants that the claims were already settled between the parties. I am of the view that this will be a question for the Arbitrator to consider and adjudicate upon area f would not like to enter into that controversy at tins stage. The last objection is also devoid of force. The plaintiff wrote to the engineer incharge on 25‑7‑1985 and as there was no response, the plaintiff wrote to the Chairman of the defendants. The learned counsel for the plaintiff has contended that the plaintiff have fulfilled pre‑conditions for reference to arbitration. This position is not admitted by the learned counsel for the defendants. It appears that the pre‑conditions are fulfilled in the present case. However, if the pre‑conditions are not fulfilled, the same will be determined by the arbitrator. The defendants are at liberty to raise any legal objection if they are desirous to do so. In the result, I allow the prayer of the plaintiff and order that the arbitration agreement shall be filed within one month; and a reference shall be made to Mr.Justice (Retired) Jaffer Naeem in terms of the arbitration agreement. The suits are disposed of as above. In the circumstances of the case the parties shall bear their own costs. A.A./E‑13/K Order accordingly.