NATIONL ALUMINIUM COMPANY LTD Vs. G C KANUNGO

JUDGEMENT

(1.) This miscellaneous appeal is filed under Sec. 39 of the Arbitration Act, 1940 challenging the order dated 23-7-2001 passed by the Civil Judge (Senior Division), Angul, in M.J.C. No. 2 of 2001 making the award a rule of the Court.

(2.) National Aluminium Company Ltd. ('NALCO' in short), which is an existing company under the Companies Act, 1956, and its Chairman-cum-Managing Director, the appellants herein, challenge the aforesaid order dated 23-7-2001 on the ground that the learned Civil Judge has lost sight of the aspect that the claim raised by the respondent was barred by limitation under Sec. 137 of the Limitation Act. In this regard it is argued that even though the learned Civil Judge in paragraph 8 of his order observed that the claim was barred by limitation, yet he did not interfere with the award.

(3.) Before going into the merits of the case, it is worthwhile to briefly narrate the facts giving rise to the present proceeding. The present respondent, who is a contractor, entered into a contract with the NALCO for construction of road, culvert and storm water drainage at NALCO Nagar in Angul and an agreement to that effect was signed between both the parties on 18-2-1985. National Industiral Development Corporation ('NIDC in short) was appointed by the NALCO as its Consultant Engineer to supervise the aforesaid work. The respondent raised certain claims for which the Chariman-cum-Managing Director of NALCO appointed Shri S. Misra, a retired Executive Director of Bhilai Steel Plant as the Arbitrator to adjudicate the dispute be- tween the parties in terms of the agreement. On being appointed, the Arbitrator called upon the parties to file their pleadings in shape of claim and counter-claim. While the respondent-claimant filed his claim statement, the appellants filed an application before the Arbitrator praying therein to reject the claim of the respondent on the ground of limitation. The Arbitrator rejected the said objection and against such rejection, an application under Sec. 33 of the Arbitration Act was filed before the learned Civil Judge. On the aforesaid application being rejected, a revision being Civil Revision No. 347 of 1996 was preferred and this Court disposed of the said revision application holding that it was for the Arbitrator to decide whether the question of limitation raised was a pure question of law or mixed question of facts and law. This Court further directed the Arbitrator to proceed with the matter if it was a mixed question of facts and law. Upon scrutiny of the documents, the Arbitrator found that the issue was a mixed question of facts and law and accordingly directed the appellants to file their counter claim/counter statement. Ultimately the appellants filed their counter claim and documents.