UTILITY ENGINEERS I LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) This is an application undersection 20 of the Arbitration Act. In the year 1985 respondent No. 2 for and on behalf of respondent No. 1 floated tenders for replacement of package type A.C. Unit in instrumental Building CRRW and Parachute building at Hindan Air Field, Ghaziabad. The petitioner inresponse to the tender notice submitted its tender which was accepted by respondent No. 2 by his letter dated May 30,1985 (Ext. P-l). A formal agreement was executed by and between the parties. After the execution of the work final bill was prepared and payment was made thereunder to the petitioner. Upon receipt of the payment of the final Bill the petitioner wrote to the respondents that a sum of Rs. 1,88,550.02 still remains to be paid to it by respondents I and 2. It appears that the petitioner wrote to the respondents I and 2 stating that it had appointed Mr. S.M. Pande on its behalf to act as an Arbitrator and requested the respondents to appoint their Arbitrator. Mr. Pande, however, declined to continue as an Arbitrator. Thereupon, the petitioner by its letter dated Marcn9,1988 (Ext. P-5) nominated Mr. A.R. Ramanathan as the Arbitrator. By the same letter the petitioner called upon respondents I and 2 to nominate their Arbitrator. The respondents reacting to the letter of the petitioner dated March 9,1988 pointed put in their letter dated April 6,1988 (Ex.P-3) that the Chief Engineer, C.P.W.D., was the authority who could nominate an Arbitrator. After receipt of the aforesaid letter the petitioner by its letter dated April 29, 1988 (Ext. P-5) requested the Chief Engineer to appoint an Arbitrator to adjudicate upon the disputes as listed in the annexure thereto (Ext. P-6). By the same letter the petitioner reduced his claim from Rs. 1,88,550.02 to Rs. 1,68,550.02. The respondents in response to the letter of the petitioner dated April 29,1988 informed the petitioner by letter dated May 9,1988 (Ext. P-7) that the procedure for applying for appointment of an Arbitrator has been modified and the petitioner should apply in the prescribed proforma: The petitioner complied with the requirement by letter dated September 26,1988 (Ext. P-8). However, the Chief Engineer, respondent No.. 3, did not make the appointment with the result that the petitioner filed the instant petition under Section 20 of the Arbitration Act.

(2.) The respondents in their reply to the petition, inter alia, contended that the petitioner accepted the payment under the final bill and as such it cannot now file this petition under Section 20 of the Arbitration Act. Respondents also took up the plea that the petitioner did not approach the Chief Engineer for appointment of an Arbitrator with in ninety days of the receipt of the intimation regarding preparation of the final bill and as such the0 claims would stand barred and waived.

(3.) I have considered the pleas raised by the respondents in their reply. The question whether the petitioner once having received the payment under the final bill would be disentitled from raising the claims is a matter entirely for the Arbitrator to determine. Similarly, the question whether the claims of the petitioner stand waived and barred as the petitioner did not raise the same within ninety days of the receipt of the intimation by it regarding the preparation of the final bill is also a plea which is for the Arbitrator to decide.