UNION OF INDIA Vs. GOPALAN

JUDGEMENT

(1.) THE respondent Railway contractor entered into an agreement with the appellants herein for the construction of quarters at Olavakkode in Putuppariyaram Amsom. THE work was to be completed on 14-9-1973. In spite of several extensions given to the respondent, he could not complete the work and ultimately the appellants rescinded the contract with effect from 31-12-1977. THE respondent made several correspondence with the appellants Railway for cancellation of the rescission of the contract and also to permit him to complete the remaining work. This prayer was rejected by the General Manager and thereafter the respondent filed a suit under S. 20 of the Arbitration Act for appointment of an Arbitrator. THE suit was resisted by the appellants on the ground that the suit was barred by limitation. THE court below rejected that contention and held that the petition under S. 20 of the Act is within time. THE appellants challenge the finding.

(2.) THE short question that arises for consideration is whether the respondent's suit under S. 20 of the Arbitration Act is barred by time. THE provisions of the Limitation Act are made applicable to Arbitration proceedings by virtue of S. 37 (1) of the Arbitration Act. S. 37 (1) of the arbitration Act reads: "all the provisions of the Indian Limitation Act, 1908 shall apply to Arbitration" However, no specific period of limitation has been prescribed for the filing of the petition under S. 20 of the Arbitration Act. Art. 137 of the Limitation Act, 1963 is the relevant provision applicable to these proceedings. In Kerala State Electricity Board, Trivandrum v. T. P. Kunhaliumma ( (1976) 4 SCC. 634) the Supreme Court considered the scope of amplitude of Art. 137 of the Limitation Act, 1963. THE Court considered whether this provision would apply to a petition filed under S. 16 (3) of the Indian telegraphs Act for enhancement of compensation. THE Supreme Court considered the distinction between Art. 137 of the Limitation Act, 1963 and Art. 181 of the limitation Act, 1908. THE Court held: "s. 2 (b) of the Act defines "application" to include a petition. This changed definition in the 1963 Act indicates the object of the Act to include petitions, original or otherwise, under special laws. Article 137 includes petitions within the words "applications". THE alteration of the division as well as the change in the collocation of words in Art. 137 of the Limitation Act, 1963 compared with Art. 181 of the 1908 Limitation Act shows that applications contemplated under Art. 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other applications as in the 1963 Limitation Act. THE words "any other application" under Art. 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division (Article 137 occurs in Part ii ). Any other application under Art. 137 would be petition or any application under any Act. But it has to be an application to a court for the reason that s. 4 and 5 of the 1963 Limitation Act speak of courts. Hence the conclusion is that Art. 137 of the 1963 limitation Act will apply to any petition or application filed under any Act to a civil court. Now where by statutes matters are referred for determination by a court of record with no further provision the necessary implication is that the court will determine the matters as a court. "

(3.) THE learned counsel for the respondent contended that this is a case where the respondent made an honest attempt to revoke the cancellation of the contract effected by the Railway. It was pointed out that on a former occasion the Appellants Railway bad cancelled the respondent's contract. However, the cancellation was later revoked and the respondent was allowed to cany on the work. THE respondent sent several communications to the railway and these communications show that he bad honestly believed that the railway would permit him to carry on the work. THErefore we feel that this is a fit case where S. 5 of the Limitation Act can be made applicable. In view of s. 37 (1) of the Arbitration Act, which provides that all the provisions of the limitation Act, 1963 will apply to Arbitration proceedings the benefit of S. 5 of the Limitation Act also can be invoked by the parties. In view of the fact that the respondent had various correspondence with the appellants Railway to settle the claim, we hold that the respondent had sufficient cause for not preferring the application under S. 20 of the Arbitration Act. THErefore, we hold that the order passed by the Court below does not call for any interference. THE M. F. A. is dismissed without costs. Dismissed. . .