SHIV CONSTRUCTION COMPANY Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal is filed by the appellant M/s. Shiv Construction Company whose connected appeal No. 36/1993 for other contract with the same department has been decided by a separate judgment today. The present appeal is directed against the order of the learned District Judge, Bikaner in Civil case No. 4/1989 dated 31. 1. 1992 holding that application under Section 20 of the Arbitration Act, 1940 filed by the plaintiff on 23. 12. 1988, was time barred by the bar of Article 137 of the Limitation Act, 1963.

(2.) LEARNED counsel appearing for the appellant urged before this Court that Article 137 of the Limitation Act does not apply in the case of application under Section 20 of the old Arbitration Act, 1940 and no limitation is prescribed for filing application in Section 20 of that Act. According to her, the final bill prepared on 30. 5. 79 was accepted by the plaintiff under protest and in fact the final bill itself was not fully paid by the department and some other deductions were also wrongly made according to the plaintiff. In support of her submissions, learned counsel has relied upon the following judgments to fortify her submission that Article 137 of the Limitation Act does not apply to the applications filed under Section 20 of the Arbitration Act, 1940. 1. Wazir Chand Mahajan & Anr. vs. The Union of India (AIR 1967 SC 990) 2. Mohd. Usman vs. Union of India (AIR 1969 SC 474)

(3.) PER contra, the judgment cited by the learned counsel for the respondent in U. O. I. vs. Momin Construction Company (1997 (9) SCC 97) (supra) which was decided in the absence of respondents' appearance on the facts of the case, the Hon'ble Supreme Court held that the claim of the first appeal arose to the respondents before 11. 8. 1965 when they issued "no Claim Certificate" and the final bill was passed. The right to apply under Section 20 of the Arbitration Act therefore arose to the respondents before 11. 8. 1965. The application under Section 20 was made by them much after the expiry of three years therefrom and therefore, the application under Section 20 was held to be barred by time. With great respect, it appears that the said judgment cited by learned counsel for the respondents would not apply in the present case where even the final bill was not paid to the contractor and that was signed apparently under protest.