DES RAJ NAGPAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition filed under clause 11 of the J&K Arbitration and Conciliation Act, 1997 (for brevity the Act) prays for appointment of an arbitrator by this Court. Brief facts:

(2.) A contract agreement No. CEUZ -31/ 92 -93 to build quarters at Akhnoor was executed on 31 -12 -1992 (Annexure A) between the petitioner and respondents. According to the contract agreement the Engineer -in - Chief -respondent No. 3, is the designated authority to appoint an arbitrator and there are no specific qualification of the arbitrator indicated in the agreement. The claim of the petitiorie'r is that it had completed the work and bill was raised which became subject - matter of dispute. A perusal of the original record shows that the petitioner had submitted bills from 1993 which included claims for extra work done on the asking of respondents. Eventually on 1 -1 -1996, a final bill was prepared by the petitioner firm. Even this bill has a number of cuttings reducing the claim by respondents. On the foot of the bill there is a certificate by the contractor. It certified that entire payment due to it and its claims ma,de from time to time were included in the bill irrespective of the fact whether they were accepted by the department or not. It also stipulated that the firm reserved its right to raise additional claims in the final bill. The bill was signed under protest which was paid on 31 -1 -2003. It is claimed that the legitimate payment due to the petitioner has been withheld for no fault on its part. A list of claims has been set out in para 11 of the petition. Despite notice dated 11 -8 -2003 requesting the Engineer -in -Chief -respondent No.3 to appoint an arbitrator no heed has been paid to the request of the petitioner which led to the filing of the instant petition under Section 11 of the Act.

(3.) MR . Anil Mahajan, learned counsel for the petitioner has vehemently argued that the right to apply for appointment of an arbitrator in terms of Clause 70 of the IAFW of the general conditions in the contract agreement arose to the petitioner only on 30 -1 -2003 when the partial payment of final bill was made. According to the learned counsel it is wholly unwarranted and uncalled for the conclude that the cause of action had arisen when the so called final bill was submitted on 1 -1 - 1996 because at that stage the petitioner could not be sure with regard to the disputed amount. The submission made by the learned counsel is that the cause of action would arise only when the dispute had surfaced on partial payment made on 31 -1 -2003 which was after a period of seven years of the submission of the so called final bill. In support of his submission learned counsel has placed reliance on the observations made b a Division Bench of Delhi Court in the case of Prasar Bharti v. MAA Communications 2010 (1) Arb. LR 551 : (AIR 2011 Del 26) (Delhi) (DB) and argued that limitation for filing an application under Section 11(4) of the Act would start running only from the receipt of request mention in Section 11(4)(a) or (b) of the Act. The limitation for an application under Section 11(6) would start running on happening of contingencies mentioned in sub -clause (a) or (b) or (c). Therefore, a petition filed within three years of approaching the competent authority for appointment or an arbitrator would be within time. Mr. Mahajan has also placed reliance on the observations made by a Division Bench of Calcutta High Court in Bhilai Wires Limited v. Bharat Sanchar Nigam Limited, 2011 (1) Arb LR 74 (Calcutta) : (AIR 2010 Cal 172) indicating that the date of last payment would be the relevant date for purposes of commutation of limitation for the entire period claimed by the contractor. Viewed from that point it has been submitted that the filing of the present petition is within the period of limitation.