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TMI Blog2002 (7) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... cant, the NTPC vide its office note dated 7th September, 1999, finally approved on 7th October, 1999, had agreed that the balance work could be entrusted to the applicant. In terms of the said arrangement, the applicant was to execute the work, as per the contract of GEL with NTPC; get the work executed measured; submit the bills as per the rates settled in terms of the contract and the NTPC was to make direct payment of the running bills to the applicant in their name. It is also averred that for documentation of this arrangement an agreement was also entered into on 31st August, 1999 between GEL and the applicant. Disputes relating to payment for the work done by the applicant having arisen between the applicant and the NTPC, the applicant claims to have requested the NTPC to get these settled by appointing an arbitrator in terms of clause 56 of the General Conditions of Contract, governing the contract between GEL and NTPC. The said clause provides that all questions and disputes relating to the designs, drawings, quality of workmanship or any other question, claim or right etc., shall be referred to the sole arbitration of the General Manager, NTPC and if he is not willing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand, learned counsel has placed reliance on the correspondence exchanged between all the three parties - the applicant, GEL and the NTPC. It is thus submitted that there being no arbitration agreement between the applicant and the NTPC, the present application is not maintainable. 6. Section 8(1) of the Act provides that a judicial authority before which an action is brought in a matter which is the subject-matter of an arbitration agreement shall, if a party so applies, refer the parties to arbitration. Existence of an arbitration agreement between the parties is a pre-requisite for invoking jurisdiction of a Judicial authority either under section 8 or 11 of the Act. Section 7 of the Act states that an "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. It is true that the Apex Court in Konkan Railway Corpn. Ltd. v. Mehul Construction Co. [2000] 7 SCC 201 1 , approved in the aforenoted decision of the Constitution Bench, has observed that there is nothing in section 11 which contemplates decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consent of the promisee and when such consent is given, it is really a novation resulting in substitution of liabilities. On the other hand, rights under a contract are assignable, unless the contract is personal in its nature or the rights are incapable of assignment either under the law or under an agreement between the parties. The doctrine of assignment is also known to the insurance law and an assignment of the policy is a transfer of the contract of insurance with all its rights and liabilities to the transferee and, therefore, it is substitution of a new assured for all intents and purposes. 9. Thus, broadly speaking, an assignment is in the nature of a transfer by one to another of his interest or rights in one s property and vests in the latter the former s interests, rights and remedies in respect of the subject- matter. In such a case, the latter by virtue of the assignment in his favour will be in a position to enjoy the rights of the former in his own name. Obviously, the factum of an assignment or for that matter a transfer of the contract has to be gathered from a specific document in this behalf or at least from contemporaneous action/contract on the part of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with BTPS as per clause 37 of the GCC. I fail to understand how clause 37 of the GCC is attracted now as pointed out above. The noting on the file of phase-II are not enclosed as pointed out above in note dated 11-9-1999. However M(L) is on record and same are reiterated. We should also keep in mind the past conduct of the contractor in dealing with the NTPC (BTPS). May proceed as per the contract. Sr. M. (C-T/S). Sd/- M.K. Kaul 27-9-1999 Subject : Construction of New Block in Notre Dam School in BTPS Staff Colony at BTPS. The remarks of Manager (Law) may please be seen. The work is of important nature and we are mainly depending on the sub-agency M/s. Sethi Construction Company who is advancing with the progress of work in the absence of the representative of M/s. GEL. As done in case of Phase-II, raising where the sub-contractor was given direct payment on behalf of M/s. GEL as per agreement reached between them, a similar agreement has been formed between M/s. GEL and M/s. Sethi Construction Company. Proposal to process payment to M/s. Sethi Construction Company, the Sub-agency engaged by M/s. GEL as per the agreement may be agreed to. 935/1-10-1999 DGM (Civil) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of M/s. Gangotri Enterprises Ltd. having its registered office at B-158, Sec-A, Mahanagar; Lucknow-6 and local office at P-32, South Extension, Part-II, New Delhi do hereby appoint/nominate and constitute Shri Rajender Kumar Sethi S/o Late Shri Shadari Lal Sethi R/o A8-A9, Gali No. 2, Arjun Nagar, Delhi-51 as my true and lawful General Attorney in the name and on behalf of aforesaid company to do and execute the balance work of Construction of Block of Notri Dame School in Pmt. Colony at BTPS awarded by M/s. N.T.P.C. Ltd. BTPS Badarpur, New Delhi vide letter of award No. 10285/BTPS/CC/98-99/03 dated 1/7/98 and all or any of the following acts, deeds or things by the said attorney in connection with the above work. 1. To sign the measurement books, prepare and submit the bills to the department, get the cheques prepared in his own name and receive payments on behalf of the Company. 2. To appear and argue his stand on behalf of the Co. before Senior Officers of N.T.P.C. Ltd. 3. Generally to do all such acts, deed and things as our said attorney shall think expedient for the process purposes aforesaid as effectually in all respects as we would be ourselves relating to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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