JAI CHAND BHASIN Vs. UNION OF INDIA

JUDGEMENT

(1.) JODGMENT -

(2.) THIS matter has been placed before us on a reference made by the learned Single Judge, because it was pleaded before him that there was a conflict between judgments of learned two Single Judges of this Court namely in 1980 Rajdhani Law Reporter 313 (Vilayatiram Mital v. Union of India) decided by Dalip Kapur, J., and 1982 Rajdhani Law Reporter 12 (Ram Nath Mehra & Sons v. Union of India), decided by Avadh Behari Rohatgi, J. On the point as to who is to decide whether if the demand for arbitration is not made within a stated period, the claim will be deemed to have been waived Kapur, J. has held that it is for the arbitrator. Avadh Behari, J. has held to the contrary, and says it is for the court, before making a reference under Section 20 of the Arbitration Act.

(3.) AS a result we would uphold the view taken by Kapur, J. and Luthra, J. in Shri Sawaran Singh (supra) and Bhim Sain (supra) respectively. The contrary view takan by Avadh Bshari, J. see text does not lay correct law and must be held to have been wrongly decided. We would, therefore, answer the question by holding that it is for the arbitrator to decide whether in fact the applicant had or had not made a demand for arbitration within 90 days of receiving the intimation from the government that the bill is ready for payment and in the circustances whetlier the claim should be deemed to have been waived and the government is discharged and released from its liability. These are not matters which are within the purview of the Court when dealing with the application like the present under Section 20 of the Act. There is no dispute that there is arbitration clause. We would, therefore, in the circumstances order that the agreement be filed in the Court and the matter to referred to the arbitration in terms of the arbitration agreement.