Sindh Construction Co. vs Union of India (UOI)

V.K. Mehrotra, J.—Applicant M/s. Sindh Construction Company, made an application u/s 8 of the Arbitration Act with a prayer that the opposite party, namely, the Union of India through the General Manager, Northern Railway be directed to appoint in arbitrator as provided in Clause 64 of the general conditions of the agreement under which the Company had carried on some work for the Union of India. The application u/s 8 was rejected by the Civil Judge, Mirzapur, inter alia, on the ground that it had not been presented within the period of limitation.

The case of the applicant was that there was no period of limitation governing such applications so that it could be presented at any time. The Union of India, on the contrary, took the plea that the period of limitation for such; applications was provided for in Article 137 of the Schedule to the Limitation Act, 1963 and inasmuch as the applicant had not made the application within that period, he could not be permitted to geek any direction from the Court in the matter of appointment of arbitrator. The contention on behalf of the Union of India was accepted by the Court below.

Before the Court below several authorities were cited on behalf of the applicant as well as on behalf of the Union of India in support of their rival Contentions. It is, however, not necessary for me to notice them or to discuss the matter in any detail for the question of limitation for an application of the nature involved in the present case stands concluded by a recent decision of the Supreme Court in The Kerala State Electricity Board, Trivandrum Vs. T.P. Kunhaliumma, in which, speaking through Chief Justice Ray, the Supreme Court ruled that the limitation provided in Article 137 of the Schedule of the Limitation Act, 1963 applies to any petition or application filed under any Act to a Civil Court and that it is not confined to applications contemplated by or under the Code of Civil Procedure.

Under Article 137, an application, for which no period of limitation is provided elsewhere in the III Division of the Schedule to the Limitation Act, can be made within three years of the date when the right to apply accrues. In the present case, the Union of India finally rejected the claim made by the applicants through a letter dated Dec. 23, 1969 sent by it to the applicant through registered A/D post. This letter said that as the applicant had already given a clear no claim certificate, it had extinguished its right to agitate and that arbitration could, therefore, not be allowed as already explained to the applicant. The applicant has brought on record a letter dated January 15, 1976, which it sent to the Chairman of the Railway Board reiterating its claim. Between December, 1969 and January 15, 1976, it appears that the applicant kept silent about its claim. It took the applicant several years to re-iterate the claim through the letter of January 15, 1976. The applicant let the period of limitation available to it for making an application u/s 8 of the Arbitration Act slide by.

The view of the learned Civil Judge that the application made by the applicant u/s 8 of the Arbitration Act was barred by limitation is in consonance with the law declared by the Supreme Court and does not merit interference by this Court in its discretionary jurisdiction u/s 115, Code of Civil Procedure.

Sri S.B. Chaudhary, appearing for the applicant, then prayed that the applicant may be afforded an opportunity of seeking condonation of delay by being permitted to re-agitate the matter. He prayed that in order to enable the applicant to seek the benefit of Section 5 of the Limitation Act, the impugned order may be quashed and the matter be sent back to the Court below. It is difficult to accept the submission for the jurisdiction u/s 115, CPC cannot be exercised merely to enable the applicant to do so, more so, when the Court'' below has not been shown to have committed any error of jurisdiction in passing the impugned order.

The revision fails and is dismissed but in the circumstances of the case, I will let the parties bear their own costs.