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Judgment
The only dispute in this case is with respect to the alleged payment of Rs. 90,000/-. The appellant-writ petitioner asserts that he paid Rs. 90,000/-to the Bihar Housing Board on 28th February, 1995. Annexure 4 at page 24 of the L.P.A. is a copy of the money receipt, allegedly issued by the Bihar State Housing Board. The petitioner-appellant further asserts that the Hire Purchase Agreement (Annexure 5, page 25 of the L.P.A) also mentions about the petitioner having paid Rs. 1,76,686/- and this amount actually reflects the inclusion of aforesaid Rs. 90,000/-, as claimed by the petitioner.
The respondent No. 2, Jharkhand State Housing Board, being successions to the Bihar State Housing Board disputes the receipt of the aforesaid payment. Earlier, even the Bihar State Housing Board had disputed the receipt of the aforesaid payment. This disputed question of fact can best be resolved by taking recourse to arbitration.
The Hire purchase Agreement actually contains an arbitration clause. Both the parties are agreeable to the reference of aforesaid dispute to the sole arbitration of Mrs. Benani Verma, an advocate of this Court. Without fixing the onus of proof on either of the parties, the arbitrator shall decide this question, basically and primarily, in reference to the records of Bihar State Housing Board. The records of Bihar State Housing Board, either the ledgers or other records would the conclusive evidence to establish whether this amount was deposited by the appellant or not. In normal course, the duty to produce these records would rest upon the respondent No. 2, however, if respondent No. 2 feels difficulty, it may apply to the arbitrator for issuing summons to the concerned officials of Bihar State Housing Board for the production of the records.
The arbitrator''s fee is fixed at Rs. 5,000/- which shall be paid in equal shares by both the parties.
Let copy of this order be given to the counsels.
With these observations and directions, this appeal is disposed of.
No order as to costs.