1. These eight appeals filed u/s 39(1)(iv) of the Arbitration Act arise out of eight suits instituted by the common Respondent in these appeals before the Principal Subordinate Judge, Trivandrum u/s 20 of the said Act praying that the arbitration agreement referred to in the plaints should be ordered to be filed in court and that an order of reference of "all disputes" should be made to the arbitrator, namely Sri M.U. Isaac, former Judge of this Court, to whose arbitration, it is alleged, the parties had agreed. The lower court by separate orders, the contents of which are almost identical, allowed the applications. It is against those orders passed by the court below that these appeals have been filed by the Kerala State Electricity Board which figured as the Defendant in all the suits in the court below.
2. The Respondent in these appeals who is the Plaintiff in the suit had entered into eight different agreements with the Defendant Board for the execution of certain works in connection with the construction of the Kulamavu Masonry High Dam in the Idikki Hydro Electric Project. As per Clause 17 contained in those agreements, in the event of dispute arising between the contractor and the department "regarding the application of this contract" the same shall be submitted for arbitration to the Board whose word shall be binding on the contractor. The case of the Plaintiff is that after the completion of the work when differences arose between the parties it was agreed between them that in the place of the original arbitrator named in the agreement, namely, the Electricity Board itself, the dispute may be referred to the arbitration of Sri M.U. Isaac, retired Judge of this Court. The Plaintiff has produced along with the plaints in all the suits a copy of a letter written to him by the Secretary of the Kerala State Electricity Board on 10th August 1977 agreeing in writing that the "existing disputes" arising out of the contracts in question may be referred to the arbitration of Sri M.U. Isaac. The said document has been produced along with the plaint as Annexure A-1. In the court below the parties were at variance as regards the points in dispute in respect of which they had agreed for a reference to the arbitration of Sri Isaac. The Board also took a contention that the arbitrator--Sri Isaac-had already entered on the reference and that hence the Plaintiff was not entitled to invoke the jurisdiction of the civil court u/s 20 of the Act. Another contention taken by the Board before the court below was that it had agreed to refer only the "existing disputes" to the arbitration of Sri Isaac and that hence the points should be formulated by the court below incorporating in the reference only the subject-matter of those disputes which were existing on the date of Annexure A-1 and omitting from the purview of reference points on which disputes had been subsequently raised by the contractor. The lower court rejected both the aforesaid contentions put forward by the Board and made an omnibus reference to the arbitrator without any specification of the points on which the adjudication is to be conducted by the arbitrator. The Appellant before us contends that the order so passed by the court below is illegal and has to be set aside.
3. After hearing both sides we have come to the conclusion that there is force in the contention advanced by the counsel for the Appellant that the lower court acted illegally in not formulating the point of difference between the parties which were to be referred for adjudication by the arbitrator. Strangely enough the agreements which have been directed by the Subordinate Judge to be filed in court are only the agreements originally executed between the parties wherein the named arbitrator is the Kerala State Electricity Board. Admittedly that agreement has been subsequently modified by the parties and it is as a result thereof that in substitution of the arbitrator named in the original agreement, the parties have agreed that the arbitration may be conducted by Sri M.U. Issac. The Plaintiff had produced as Annexure A-l attached to the various plaints only true copies of the letters written by the Secretary of the Board to the Plaintiff from contents whereof the subsequent agreement is sought to be spelt out in proof. The originals of those letters were not produced before the lower court by either side. The result was that there was no legal evidence at all before the court below regarding the subsequent agreement between the parties on the basis of which alone a reference could be sought to be made through court to Sri M.U. Issac. Apart from the above the Plaintiff had not also specified in the plaints in the various suits the point of difference between the parties or the claims for relief in respect of which there was difference between the parties thereby necessitating those specific matters to be settled by arbitration on the basis of the arbitration agreements. The plaints contained only a vague and general prayer that the court should make an order of reference of all the disputes to the named arbitrator. This is not a proper or legally acceptable mode of pleading in a suit u/s 20 of the Arbitration Act especially when the parties are at divergence as to what are the matters in respect of which a reference can be made to the arbitrator on the basis of the arrangement which is sought to be proved by the production of Annexure A-1.
4. Even though the counsel for the Appellant reiterated the contentions taken on behalf of his client before court below that the suit u/s 20 is not maintainable on the ground that the arbitrator had already entered on the reference we do not find any force in this argument. We agree with the view expressed by the court below that the arbitrator had not actually entered on reference as on the date of the institution of the present suit filed u/s 20 of the Act.
5. The main point of dispute between the parties as it emerges from the arguments advanced before us by the counsel appearing in these appeals is as to whether the claim for compensation put forward by the contractor in respect of the delay caused in the execution of the work by reason of a prolonged strike by a section of the labourers is a matter in respect of which a reference can be made on the basis of the revised agreement between the parties sought to be proved by the production of Annexure A-1. We regret to find that without applying its mind at all to this matter the lower court has proceeded to make an all inclusive reference of "all disputes" in the vaguest possible terms. Then the parties were at variance before the court below as to what matters were covered by the arbitration clause and were liable to be compulsorily referred to arbitration, it was the plain duty of the lower court to investigate into the said question and determine what points of difference between the parties were covered by the arbitration clause and were liable to be specifically referred to the arbitrator. As pointed out by the Supreme Court in
6. We make it clear that we are not expressing any opinion as to the merits or otherwise of the respective contentions urged by the parties in relation to the exact points of reference to be made to the arbitrator in the various cases. That is a matter in respect of which the lower court will have to arrive at its own conclusion after getting the original of the revised arbitration agreement produced and marked and after allowing an opportunity to the Plaintiff to amend his plaints by specifying therein the precise claims and the questions relating thereto in respect of which reference to arbitration is sought u/s 20 of the Act in all suits. Both parties will also be given adequate opportunity by the court below to place any further evidence relating to the aforesaid matter which they might wish to place before it. The orders passed by the court below being unsustainable in law are hereby set aside and the suits are remanded to the lower court for disposal in the light of observations and directions given above. The court fee paid on the memoranda of appeals will be refunded to the counsel appearing for the Appellant.
