RAJENDRA KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) This arbitration case under section 11 of the Arbitration and Conciliation Act, 1996 (for short "the Act") has been filed by applicant for referring the dispute to an independent Arbitration. The case of the applicant is that he is a Railway Contractor and had entered into an agreement with Railway on 21.9.1992. According to the applicant, the general conditions of contract are applicable and clauses 63 and 64 provide for referring the dispute to the arbitration. The work, cost of which was approximately Rs. 17,24,525/- was to be completed by the applicant by 27.11.1992 but there was a breach of contract by respondents and, therefore, the work could not progress and running bills were not paid. The dispute was not referred by the respondents for arbitration, therefore, on 22.4.1999 the applicant had filed MJC No. 16/99 (later renumbered as MJC No. 29/2007) under section 11 of the Act before the Additional District Judge Ratlam which was returned on 14.9.2007 for filing before the competent Court in view of judgment of the Supreme Court in the matter of SBP and Company v. Patel Engineering Ltd. and another, 2005 8 SCC 618, whereas in terms of said judgment Additional District Judge should have transferred the pending application to the High Court, therefore, the applicant had filed an application under section 151 of CPC which was rejected on 4.2.2008 and thereafter the present application has been filed for appointing an independent Arbitrator.

(2.) The respondents have filed their reply and have raised the objection that once the application is decided by the Court of Additional District Judge, the fresh application under section 11 of the Act is not maintainable before this Court. They have raised further objection that the claim filed by the applicant has become barred by time and that the applicant had given no claim certificate, therefore, he is precluded from reagitating the claim in the arbitral proceeding and that the claim is not arbitrable since it falls under 'excepted matter' and that no demand in terms of the clause 64(1) of the Act was made by the applicant within 180 days for appointment of Arbitrator.

(3.) Learned counsel appearing for applicant submits that since the application under section 11 of the Act was not decided by the Additional District Judge on merit, therefore, the fresh application before this Court is maintainable. He has further submitted that the limitation will commence from the date of notice i.e. 2.5.1998 and the claim is not a time barred claim in view of the Division Bench judgment of this Court in the matter of Prashant Kumar Sahu v. M/s. Optel Telecommunication Ltd. Bhopal and others, 2008 2 MPLJ 481, since no claim certificate was obtained under duress and undue pressure, therefore, the same would not come in way of the appointment of arbitrator and that since the application is within time, therefore, even if within 180 days no demand for appointment of arbitrator was made that will not have any adverse effect on the applicant's request for appointment of arbitrator and that plea relating to "excepted" matter has no merit.