SANJAY DUBEY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) In this batch of civil revisions the orders passed by the Madhya Pradesh Arbitration Tribunal, Bhopal (hereinafter referred to as the Tribunal') have been challenged by which the Tribunal has dismissed the reference petitions on the ground that petitions have been presented beyond the period of three years from the date of accrual of cause of action, which is barred by limitation as provided under Article 113 of the Indian Limitation Act, 1963. A Division Bench of this Court vide order dated 3.8.2007 passed in C.R.No. 1343/2003 expressed the doubt with regard to correctness of the view taken by another Division Bench in the case of M/s. Sermen (India) Road Makers Pvt. Ltd. vs. State of MR and others, 2005 3 MPHT 292 (DB). The Division Bench thereafter referred five questions for consideration before the Full Bench. The Full Bench vide order dated 27.10.2009 while answering the aforesaid questions, doubted the correctness of the view taken by another Full Bench in the case of State of M.P. and another vs. Kamal Kishore Sharma, 2006 1 MPHT 565 (FB) and was of the opinion that decision in Kamal Kishore Sharma requires consideration by the larger Bench as in the aforesaid case the Full Bench has not taken note of the decision of Supreme Court in the case of State of M.P. and another vs. K.K. Shukla and Co., 2001 10 SCC 194 and has not scanned clause 29 in its entirety. It was further held that Full Bench has not adverted to a case where the agreement does not contain a clause like Clause 29. In the aforesaid factual background the matter has come up before this Bench. Learned counsel for the applicants submitted that in the case of Kamal Kishore Sharma , the Full Bench has not considered Clause 29 of the Agreement in its entirety as well as the effect of Section 28 of the Contract Act, 1872. It was further submitted that the time limit prescribed in Clause 29 for approaching the Superintending Engineer as well as Chief Engineer is administrative in nature and cannot be treated as mandatory and even if an aggrieved person does not approach either Superintending Engineer or Chief Engineer, as stipulated in Clause 29 of the agreement, he can still approach the Tribunal under section 7 of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam (hereinafter referred to as the 'Act'). It was also submitted that in view of Section 2A of Section 7B of the Act, an aggrieved person can approach the Tribunal within a period of three years without approaching the authorities mentioned in the works contract. It was also urged on behalf of the applicants that provisions of Limitation Act, 1963 would apply to the authorities mentioned in Clause 29 i.e. Superintending Engineer and Chief Engineer and, therefore, an aggrieved person can approach the Superintending Engineer as well as Chief Engineer within a period of three years as provided under Article 113 of the Limitation Act. Learned counsel for the applicants in support of the aforesaid submissions has placed reliance on the decisions rendered in the cases of National Insurance Co. Ltd. vs. Sujir Ganesh Nayak & Co. and another, 1997 4 SCC 366 and P.C. Rajput vs. State of M.P., 1994 MPLJ 387.

(2.) On the other hand, learned Deputy Advocate General for the State has submitted that under section 7B(2A) of the Act, as amended with effect from 29.8.2005, an aggrieved person has to approach the Tribunal within a period of three years from the date on which the works contract is terminated, foreclosed, abandoned or comes to an end in any other manner or when the dispute arises during the pendency of the works contract.

(3.) We have considered the respective submissions made by learned counsel for the parties. The precise issue involved in view of the order of reference dated 27.10.2009 passed by the Full Bench is about the period within which a reference can be made by an aggrieved person before the Tribunal constituted under the Act. The relevant extract of Section 7B(1) of the Act as it stand at present, after its amendment w.e.f. 29.8.2005 reads as follows:-