GANESH PRASAD NAYAK Vs. ORISSA STATE CO OPERATIVE

JUDGEMENT

(1.) THIS application under Section 115 and Section 151 of the Civil Procedure Code is directed against the order dated 22. 7.1982 of the Subordinate Judge, Bhubaneswar, rejecting the petitioner's application for revocation of the authority of the arbitrator, opposite party No. 4. The petitioner was entrusted to execute the work' Construction of balance ancillary works of Rice Mill at Udala (Khunta)' in the district of Mayurbhanj. An agreement, No. 35 -F2, was entered between the petitioner and the Secretary, Orissa State Co -operative Marketing Federation Ltd. -opposite party No 2, acting on behalf of the society -opposite party No. 1. As dispute arose between the parties in course of execution of the aforesaid work, a letter was issued on 19.4.1976 intimating the petitioner that his contract was rescinded and requesting him to attend personally or send an agent to be present at the time of final measurement of the work. Thereafter, according to the petitioner, all his attempts to get his dues having failed he issued a notice under Section 8 of the Arbitration Act calling Upon the Managing Director Orissa State Co -operative Marketing Federation Ltd. to appoint an arbitrator in accordance with clause in the agreement. The opposite party No 4 was appointed as arbitrator in pursuance of clause in the agreement. The petitioner seeks revocation of the authority of the opposite party No. 4 mainly on the ground that his appointment is not in accordance with arbitration clause in the agreement. According to the petitioner while the arbitration clause contemplates appointment of an Executive Engineer under the State Co -operative Marketing Federation, opposite party No. 4, Refrigeration Engineer has been appointed as arbitrator.

(2.) THE application was objected to by the opposite parties inter alia on the ground that it was barred by limitation. It was also contended by the opposite parties that the claims if any were also time barred and hence were not realisable. According to the opposite parties the contract with the petitioner having been rescinded by letter No. 54 -16 dated 19. 4. 1976 the right of the petitioner to apply for appointment of an arbitrator accrued on that date and since the petitioner failed to take appropriate steps for appointment of arbitrator within three years there after and filed the application before the Court only on 19. 5 1981, after lapse of about five years, the application was barred by limitation under Article 137 of the Limitation Act, 1963. It was the further case of the opposite parties that the appointment of opposite party No. 4 as arbitrator was a voluntary act on the part of opposite party Nos. 1 and 2. The petitioner had no right to maintain the application for revocation of authority of the appointed arbitrator.

(3.) SRI K. N. Jena, the learned counsel for the petitioner, has contended that the learned Subordinate Judge clearly erred in holding that the application under Sections 5, 8, 11 and 12 of the Arbitration Act filed by the petitioner was barred by limitation under Article 137 of the Limitation Act; 1963. He also questioned the finding of the Court below that a cause of action for filing the said application arose on 19. 4. 1976 when the opposite party Nos. land 2 rescinded the contract with the petitioner. Mr. Jena reiterated the objection raised by the opposite party Nos. 1 and 2 in their counter filed the Court below that the appointment of opposite party No. 4 as arbitrator was not In accordance with arbitration agreement. Sri K. C. Mohanty the learned counsel for the opposite party Nos. 1 and 2 on the other hand, supported the order under challenge. He further submitted that even if it was held that the decision of the learned Court below on the question of limitation was erroneous, that by itself would not bring success to the petitioner on his application. He has to further establish that opposite party No. 4 was not competent to be appointed as arbitrator under the arbitration clause.