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TMI Blog1957 (4) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... levant work order forms and also three schedules. One schedule Rave the items of work which are covered by the work orders. The value of this work is ₹ 3.608-3-0. The second schedule gives the items not covered by the work orders and its value is alleged to be ₹ 4,126-9-0. The third list gives the items of work done and paid for. Thus for the present proceedings we have only to consider the schedule giving the items which according to the plaintiff are not covered by the work orders. The trial Court fixed the 19th of November 1954 for appearance of the defendant. On this date the Government Pleader with one Kartar Singh, Sub-Divisional Officer, appeared and asked for time to file written statement as Instructions with a copy of the plaint had not been received. The Court granted adjournment and fixed 17th of December 1954 for filing the written statement. On this date the Government Pleader filed the application for stay of the suit under Section 34 of the Indian Arbitration Act. This application was contested by the plaintiff on the grounds that there was no arbitration agreement between the parties and that in any case the suit should not be stayed. Some evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government can be said to have taken any steps in the proceedings. I have not come across any case in which an effort has been made to define as to what is a step in the proceedings. Lindley, L. J.. in Ives and Barker v. Willans (1894) 2 Ch 478 (A), has said : The authorities shew that a step in the proceedings means something in the nature of an application to the Court, ..... taking of some step, such as taking out a summons or something of that kind, which is, in the technical sense, a step in the proceedings. In Subal Chandra Bhur v. Md. Ibrahim AIR 1943 Cal 484 (B), it was held that an application must be made to Court and the act of making such application should Indicate that the defendant is acquiescing in the dispute being decided by a suit in civil Court. Similar view has been taken in Nuruddin Abdulhusein v. Abu Ahmed AIR 1950 Bom 127 (C). It follows whether a particular application to Court amounts to a step in proceedings depends on the circumstances in each case and no absolute test can be laid down to determine it. It is however, clear, that such an application must be made by a defendant or under his authority. The Government Pleader had neither rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In matter of dispute the case shall be referred to the Superintending Engineer of the Circle, whose order shall be final. The real dispute between the parties is whether the disputed items are covered by the items mentioned in the work orders or not. It is clear from the work orders that they describe the work to be done and then follow the description of each item and the rate at which each item is to be paid. The work entrusted to the contractor was for construction of buildings etc. described in the beginning of this judgment and specified in the plaint. The Items that follow in the work orders only give specifications of the items of work that is to be done by the contractor to perform that contract. The main contract is to construct the buildings, a bridge and a syphon. The parties have produced expert engineers in the witness-box and they are not agreed whether the entire work is covered or not covered by the items mentioned in the work Orders. The Executive Engineer, Hissar, has produced Exhibit D. W. A./ 1 and 2 which shows that out of the disputed items only the items relating to site clearance (Value 270) are not covered by the work orders. Shri Lakhanpal, Executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I think that, as my brother Mathew pointed out in the Court below, there being all these clauses in the Contract as to any of which a dispute might arise, this last clause was added to settle them all. I agree with what my brother Lepes has said, that a dispute as to 'the construction of the contract' is within the clause. The question, therefore, comes to be, was this a dispute in consequence of the contract having been made? If this rule is applied then it is obvious that the present dispute is covered by the arbitration agreement. It must also be remembered that it is well settled that if resort has to be had to the terms of a contract to settle a dispute between the parties, then that dispute arises out of the contract and the arbitration agreement in the present case would cover the dispute. Even if it be held that the contractor has done some work which is not covered by the items mentioned in the work orders a claim for payment of this extra work would be covered by the arbitration agreement. It is after all a dispute which relates to the contract. Every slight deviation or every deviation from the original terms of the contract would not make the disput ..... X X X X Extracts X X X X X X X X Extracts X X X X
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