UNION OF INDIA Vs. MOHAN ENTERPRISES

JUDGEMENT

(1.) Heard the learned counsel for the appellants and learned counsel for the respondent

(2.) The respondent here in has used the proceeding under Article 226 of the Constitution of India to realise his claim from the appellants and the court has obliged him by issuing a summary order in this behalf. Writ petitioner - respondent's claim has arisen from the alleged breach of contract. There is, we are informed, an arbitration clause in the contract. It appears the writ petitioner - Respondent has been making demands, but has not ever asked for appointment of arbitrator. Learned Counsel for the writ petitioner-respondent has, however, stated that the writ petitioner shall make such a demand. Learned counsel for the appellants herein has drawn our attention to section 37 of the Arbitration Act and Article 137 of the Limitation Act and has contended that, while considering whether there should be arbitration, it will be open to the appellant to raise the issue of limitation. It is well settled that even questions of law, when they are required to be decided with reference to some facts, can be left for decision by the arbitrator. In any case when appointment of arbitrator is in the hands of one of the contracting parties., it is expected that once any difference or dispute comes to its notice, it refers the matter to the arbitrator and acts in accordance with the decision of the arbitrator. The question of limitation in the case of the writ petitioner - respondent shall also be a mixed question of fact and law and it will be considered when such an application is made to the court by the writ petitioner - respondent whether the period consumed in the proceeding before this Court shall be excluded while calculating the period of limitation. We do not, however, say anything final on the question of limitation at this stage because we cannot pre-judge any issue without there being any demand for appointment of arbitrator by the writ Petitioner - Respondent. We leave the question open, with the observations as above, for the competent authority to decide whether there is any justification for raising the issue of limitation or not. We permit, however, the writ petitioner - respondent to institute a suit for the claim or to seek arbitration and proceed in accordance with law. It is well known and it is known to the courts in India for more than three decades that Railways have been behaving as one of the worst litigants ever known and it is in cases of Railways that the courts have particularly pointed out that they unnecessarily stick to technicalities and raise technical objections including objections as to limitation. It is observed in many cases and we have no reason to think that appellants are not aware of such observations of the Supreme Court that governments and statutory authorities in particular should not stand by technicalities and limitations, but to enter into the merits so that matters are decided fairly and completely between the parties. If the appellants herein have to take any lesson, they should take it from their own conduct in filing the instant appeal after the expiry of period of limitation and after a delay of 208 days.

(3.) In the result, with the observations as above, we set aside the impugned order and allow the appeal.