STATE OF U P Vs. SATYA P

JUDGEMENT

(1.) THIS is a second appeal for the recovery of the sum of Rs. 3168.83p. The trial court decreed that suit for the recovery of Rs. 2569 22p. with pendente lite and future interest and proportionate costs. On appeal by the defendant, the lower appellate court has affirmed the judgment and decree of the trial court. Mr. Upadhaya, learned Standing Counsel for the defendant-State has urged before me only one point to the effect that the suit was barred by time. The relevant facts of the case are that the plaintiff is a contractor. He did some work for the defendant. There were certain disputes. He served a notice under section 80 C. P. C. in reply thereto, the Collector asked the plaintiff to have the matter settled by arbitration. The plaintiff agreed and Mr. Sumer Chand, Superintending Engineer was appointed Arbitrator, and the said dispute was referred to him on 21st September, 1962. His award wis set aside on 10th August, 1965 on the ground that the contract bond was vague and there was no fresh duly executed agreement between the parties for the appointment of Sri Sumer Chand as an arbitrator and thus there was no arbitrator agreement between the parties. The plaintiff thereupon filed a suit giving rise to the present appeal and naturally relied on the plea that the time taken in the arbitration proceedings was liable to be excluded in computing the limitation prescribed for the suit. Mr. Upadhaya has contended that the arbitration proceedings have been declared to be void. There were, in law, no arbitration proceedings and consequently the time occupied in the same could not be excluded under the law. Apart from the reasons given by the lower appellate court for holding that the suit was not barred by time I find that the arbitration proceedings having taken place and the award having come into existence, the plaintiff could not have got over those proceedings or award without a proper application under the Arbitration Act. He could not have ignored the award because under section 33 of the Arbitration Act, the existence or validity of an arbitration agreement or an award or their effect can only be determined by an application under that Act and not by a suit in the Civil Court. It follows that the arbitration proceedings were prosecuted by the plaintiff in good faith and with due diligence. It cannot be disputed that the arbitration proceedings in this case did not relate to the same matter. In the result, the time occupied in the arbitration proceedings was liable to be excluded in computing the limitation for the suit, under section 14(1) of the Limitation Act. It is not disputed that if the said period was so excluded, the suit would be within time. No other point was pressed. The appeal accordingly fails and is dismissed with costs.