NARESH KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE petitioner was awarded the execution of certain water works at Nandgaon by the State of Haryana and for this purpose, Agreement No.73 of 1996 -97 was executed between the parties. The cost of work was Rs.30.25 lacs. As per the applicant, certain claims of payments are due to the applicant under this contract, which are not paid by the respondent, State of Haryana. The applicant had served legal notice on 28.3.2011 giving 30 days to the respondents to appoint an Arbitrator in terms of Clause 25A of the general conditions of contract agreement between the parties. However, the respondent did not appoint the Arbitrator and therefore, present application is filed under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of the Arbitrator by this Court on the ground that the respondents have forfeited the right of nominating the arbitrator.

(2.) EXECUTION of the agreement is not in dispute. It is not in dispute that the aforesaid work was awarded by the respondent to the petitioner. However, the present petition is resisted on the ground that it is time -barred. Thus, the plea of limitation is raised to contest the application. In the application itself, the applicant has submitted that the work was completed by the applicant to the entire satisfaction of Engineer -in -Chief. The last payment of running bill was made by the Executive Engineer P.H. Division -I, Bhiwani on 22.10.1999 vide voucher No.188. It is, however, alleged that the Executive Engineer failed to perform his obligation to finalize the bill of the contractor despite many requests. However, after the receipt of the last payment on 22.10.1999, the legal notice for appointment of Arbitrator was served only an 23.8.2011, i.e., more than 10 years thereafter. However, as per the applicant, application is still within time as the time starts when the final bill is either processed or passed by the competent authority. But, in the instant case, neither the final bill was passed, nor processed. The respondents, on the other hand, referred to Clause 25A of the Agreement and submitted that on the basis of mechanism provided therein, the present petition is hopelessly time barred. It is their submission that as per Clause 25A(2) of the Agreement, in case of any dispute of difference of any kind whatsoever that shall arise, be in the first instance, be referred to for being settled by Executive Engineer -in -Charge of the work at the time and he shall within a period of 60 days after being requested in writing by the contractor to do so convey his decision to the contractor. The Clause 25(1) is reproduced is under:

(3.) AFTER hearing the arguments and going through the records, I find substance in the submission of the respondents. The applicant, as per the aforesaid Clause, was supposed to raise the claim or seek arbitration within 60 days. He could have approached the court within limitation. He never raised any such claims for more than 10 years. In such circumstances, the applicant cannot blame the respondents that the respondents did not process or prepare the final bill and woke up after more than 10 years by issuing legal notice dated 28.3.2011. The claim raised now is patently time -barred. No communication is produced to show that the applicant ever requested the respondents for preparation of final bills. In any way, he could not wait for all these years and should have approached this Court in time.