1982 PLP 1679 (CLC)

2. I have heard Mr. S. A. Mannan, Advocate and Mr. Kamal Mansoor Alam, Advocate in support of their respective contentions. It is admitted before me by the learned counsel for the parties that the contract had been terminated and that at the time the contract was terminated the work had not been completed. According to Mr. S.A. Mannan, learned counsel for the plaintiff, the relevant clause in the tender documents, which was a part of the agreement between the parties, is clause No. 20.3 which is as follows :‑ "When reference to 20.3 Except as to the withholding by the Arbitration may be Engineer of any certificate or the with made holding of any portion of the Retention Money under Section 15. 1 hereof to which the Contractor claims to be entitled or as to the exercise of the Engineer's power to give a certificate under section 17.1 hereof no reference to arbitration shall be made until. After the completion of the works unless with, the written consent of the Corporation and the Contractor. Provided always that the giving of a certificate of completion under section 9.14 hereof shall not be a condition precedent to the making of any such reference."

3. In view of this arbitration clause between the parties, no reference to Arbitration can be made until after the completion of the works unless there is written consent of both the parties for taking the matter to arbitration earlier. There are three exceptions in this clause and these are‑ (a) withholding by the Engineer of any certificate ; (b) withholding of any portion of the Retention money under section 15.1 to which the Contractor claims to be entitled ; and (c) exercise of the Engineer's power to give a certificate under section 17.1 of the tender documents. 4. 1 find that the plaintiff has not brought his case under any of the aforesaid three exceptions. Plaintiff's case is that the contract has been prematurely terminated, and the plaintiff has done more work than he has been paid for, and defendant is liable to pay the balance amount. This claim is not covered by any of the three exceptions noted above. Further the defendant have not consented to take the present dispute at this stage to arbitration.

5. Learned counsel for the defendant has taken up the position that the work which was yet incomplete when the contract was terminated, is still under completion by the defendant and till such time the works are completed, the present dispute cannot be taken to arbitration by the plaintiff. Learned counsel for the defendant had, in support of his contention that the request for arbitration was premature, relied upon the decision of the English Court of Appeal in the case of Smith v. Martin, (1). In that case the arbitration clause in a building contract provided for reference of disputes to arbitration but with the rider that "such reference shall not be opened until after the completion of the works". The builder determined the contract under a clause of the contract before the work was completed and then commenced arbitration proceedings. The arbitrator gave an award in his favour. It was held by the Court of Appeal that, in view of the wordings of the ;arbitration clause, arbitration proceedings were premature and the arbitrator bad no jurisdiction to make the award. This judgment supports the 'contention of learned counsel for the defendant.

6. As the works are still incomplete which is admitted by the counsel for the plaintiff, and the defendants are not agreeable to go to arbitration at this stage; and the plaintiff's claim does not come within, the 3 exceptions of clause 20.3, the present application under section 20 of the Arbitration Act, is premature and cannot be granted. In the circumstances the present application under section 20 of the Arbitration Act is dismissed with no order as to costs. Dismissal of this application does not, however, prevent the plaintiff from taking such other action as might be permissible for him to take under the law. Petition dismissed.