P H PARMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The parties to both these appeals are the same and both these appeals raise common questions of law and fact. I have therefore thought it fit to dispose of both these appeals by this common judgment of mine.

(2.) First Appeal No. 341 of 1978 is directed against the decision made by the learned Civil Judge (S D.) of Kutch at Bhuj on 30/11/1971 in Special Civil Suit No. 61 of 1975. First Appeal No. 342 of 1978 is directed against the decision rendered by the same Judge on he same date in Special Civil Suit No. 62 of 1975. The appellant in each case was the plaintiff in the Trial Court in each case. Each suit arose out of an application made by the plaintiff under Section 20 of the Arbitration Act 1940 ('the Act for brief) calling upon the respondents herein as the defendants to file their arbitration agreement and to refer the disputes between the parties to arbitration for their resolution. The plaintiff in Special Civil Suit No. 61 of 1976 had undertaken the contractual work between miles 113 and 125 on Malia Kandia Station of Jhund Kandia (BG) Project. The contract was executed between the parties on 9/09/1967. It appears that the work was completed some time in 1970 and the final bill was prepared some time in August 1970 and was signed by the plaintiff under protest on 21/08/1970 Since the disputes between the parties were not resolved and since the contract between the parties contained what is popularly known as an arbitration clause the plaintiff moved the court with an application under Section.20 of the Act. It came to be registered as Special Civil Suit No. 61 of 1975. So far as Civil Suit No. 62 of 1975 is concerned it pertained to construction of one road overbridge on the State Highway (Sakakhiali Chitrod Road) at Railway Mile 102.83 between Kataria and Samakhiali stations. The contract was entered with the Railways by the plaintiff on 8/01/1970. It appears that in that case also the contractual work was completed around 1971 and the final bill was prepared some time in July and was signed by the plaintiff some time on 16/09/1971. The plaintiff filed his application under Section 20 of the Act some time on 21/11/1975. It came to be registered as Special Civil Suit No. 62 of 1975. The respondents as the defendants filed their written statements in both the suits and resisted them on various grounds. They inter alia pressed into service the Law of Limitation for defeating the plaintiffs claim in each suits. It appears that the plaintiff thereupon applied for condonation of delay in preferring the application in each suit. Such application in Special Civil Suit No. 61 of 1975 is at Exh. 20 and in Special Civil Suit No. 62 of 1975 at Exh. 30 on the record of the case. It was supported by the affidavit of the plaintiff. The defendants appeared to have filed their reply to each of these applications. The Rojkam (the proceedings) in each case show that both these applications were kept for hearing and were heard on 2 3/11/1977. The proceedings were thereupon adjourned to 30/11/1977 and then to 1/12/1977. On that day the fate of the condonation application was decided alongwith the suits itself. The delay was not condoned and consequently the suit in each case came to be dismissed as time-barred without examining the case on merits. The aggrieved plaintiff has thereupon invoked the appellate jurisdiction of this Court under Section 39 of the Act by means of both these appeals for questioning the correctness of the decisions of the Trial Court as aforesaid.

(3.) It appears that the application for condonation of delay and its reply by and on behalf of the defendants kept in D file in each case. When the record in each case was received from the Trial Court D File was found to have been destroyed. It may be mentioned that the record of this Court shows that the necessary writ calling for the records of the Trial Court in each case was sent in or about July 1978 and it was received in the District Court of Kutch at Bhuj on 20/07/1978. The record was despatched by the District Court of Kutch at Bhuj some time around 19/09/1985 and it was received here on 24/09/1985. It is strange and surprising that during the pendency of the requisition of the record of the Trial Court made by this Court D file has come to be destroyed.