Sri Narain Kumar vs Bihar State Food and Civil Supplies Corporation

Dhrub Narayan Upadhyay, J.—This appeal has been preferred against the judgment dated 07.04.1995, decree signed on 17.04.1995 in connection with Arbitration Title Suit No. 109 of 1990 passed by learned Sub-Judge-VI, Ranchi, whereby petition filed under section 20 of the Arbitration Act, 1940 (hereinafter referred to as the ''Act, 1940'') for appointment of Arbitrator was refused on the ground that the suit was time barred.

The appellant-plaintiff (hereafter referred to as the ''plaintiff'') had presented a case before learned Sub-Judge that respondents-defendants had been inviting tenders for transportation and handling of food grains, edible oils, sugar etc. and in response to that the plaintiff had filed tenders quoting rates and other conditions. The contract was given to the plaintiff and agreements were executed in the year 1985-86 and 1986-87 (Exhibits 2 and 2/A). There was clause of minimum guarantee in those agreements, but the higher officials of the concerned department had later changed the minimum guarantee as disclosed in the contract and the payments against the job done were withheld by the defendants. It was contended that the defendants started giving wrong interpretations to the provisions of payment of transport charges of the minimum guarantee rate as laid down in the tender and they deviated from the transport charges contained in the agreements. The plaintiff had further made out a case that the defendants illegally deducted a sum of Rs. 24,954.20 paise, a sum of Rs. 26,612.62 paise and further withheld a sum of Rs. 1,08,386/-, Rs. 2,54,833/- and Rs. 26,467/- and as such dispute arose.

In pursuance of Clause 17 of the Agreement, notices were sent to the defendants to enter into an arbitration proceeding, but it was refused and hence petition under section 20 of the Act, 1940 was filed on which Arbitration Title Suit No. 109 of 1990 was registered.

The defendants in pursuance of notice appeared before learned trial court and filed their written statement denying the allegations raised in the plaint.

On the basis of the pleadings of the parties, the following issues were framed by learned Sub-Judge:

(I) Whether the suit as framed is maintainable in law?

(II) Whether there is any agreement of arbitration between the parties?

(III) Whether the dispute between the parties is covered by clause 17 of the Arbitration Agreement?

(IV) Whether the defendants have validly and legally refused to refer the dispute of the named arbitrator?

(V) Whether the suit is barred by law of limitation?

Learned Sub-Judge after considering the evidences both oral and documentary adduced by both sides has dismissed the suit mainly on the ground that the suit was hopelessly time barred and hence this appeal.

Learned counsel for the appellant has submitted that the respondents-defendants kept on making payment against the bill raised by the plaintiff till the year 1989, which will be apparent from Exhibit-A series. Furthermore, the letters due to which dispute arose between the parties were also issued by the higher officials of the concerned department of the defendants in the year 1987. The appellant had also served with a legal notice dated 30th April, 1990 raising his demand and also pointing out the illegal deduction, which had been made by the defendants and further requested the defendants in pursuance of Clause-17 of the Agreements to proceed with arbitration proceeding. It is contended that the finding of learned trial court is illegal since the suit was brought within time and the limitation can be counted from the date on which the notice for appearance in arbitration proceeding was given.

Learned counsel for the appellant has relied on paragraphs-4 and 11 of the judgment of the Supreme Court in S. Rajan Vs. State of Kerala and another, .

Nobody appears on behalf of the respondents-defendants.

I have gone through the impugned judgment and decree. It is not in dispute that the agreements were for one year, which commenced from 31.03.1986 and ended on 31.3.1987. The plaintiff has failed to bring on record the bills raised by him after conclusion of the aforesaid agreements. There is no document on record to show that the defendants had ever acknowledged the dues likely to be paid to the plaintiff. The plaintiff has proved Exhibit-4, which is the legal notice sent by him, but it was received by the defendants has not been proved. There is no reply on record, which would show that such notice was served upon the defendants. It is always expected that at the conclusion of the agreement, at least within thirty days bill should have been raised and if there was any dispute prevailing, that should have also been pointed out. Since the plaintiff has failed to bring on record any such document, the period of limitation shall be counted from the date on which the agreements ended.

I have also gone through the judgment cited above. I do not find that the plaintiff at any point of time raised his demand against the defendants in view of the contract, which he had completed in pursuance of the aforesaid agreements(Exhibits-2 and 2/A).

In the circumstance, the judgment relied upon by the appellant is of no avail. I do not find any illegality in the finding of the trial court as the trial court has clearly held the suit was time barred. Since the suit itself was time barred, I do not feel desirable to discuss other findings given by the trial court.

This appeal is devoid of merit, as the suit was time barred. Accordingly this appeal stands dismissed but without costs.