JUDGMENT Arun Kumar Goel, J.—In this case hearing concluded today. 2. Admitted facts of this case are, that the parties entered into an agreement dated 7th April, 1986. This was followed by a supplementary agreement of 10th April, 1986. In terms of this agreement, defendant had agreed and undertaken to instal and erect a Ropeway, from the existing location of the resort of the plaintiff on Kalka Shimla Highway to the other end where plaintiff had set up a resort under the name and style of ‘Timber Trial Heights.’ This work of erection etc. of the Ropeway was undertaken by the defendant in terms of the agreement as well as, as per drawings etc. which formed a part of the agreement. 3. Record of the case shows that the Ropeway became operational on and w.e.f. 14th April, 1988 when it was handed over in terms of Annexure-D, i.e. letter dated 12th April, 1988. Ropeway became operational is a fact on which parties are not at variance. 4. Now the controversy starts. According to defendant after the communication dated 12th April, 1988 Annexure-D with the plaint, so far the aforesaid agreements of 7th April, 1986 and 10th April, 1986, were concerned the matter stood concluded. Defendant further claims that so far it was concerned, nothing remained to be undertaken by it. For ready reference contents of Annexure-D (original whereof is Ext. D-l), are extracted herein below:— "ASIA RESORTS LTD. Correspondence address : 3053, Sector 28-D, CHANDIGARH phone: 25861. TO WHOM IT MAY CONCERN The performance test of the Twin track Twin hauling rope Jigback Passenger Ropeway at Parwanoo (Himachal Pradesh), designed, supplied, erected and commissioned by Usha Breco Limited, Calcutta was successfully carried out from 21.3.1988 to 27.3.1988. The Ropeway is deemed to be taken over by Asia Resorts Ltd. with effect from 15.4.1988. The guarantee period of the ropeway will commence from 15.4.1988 and will expire on 14.4.1989. Asia Resorts Limited also confirms that all matters relating to the contract agreements dated 7.4.1986 and 10.4.1986 with Usha Breco Limited are settled. FOR ASIA RESORTS LTD. (R.K. GARG) 12th April, 1988 MANAGING DIRECTOR". 5. In this background sum and substance of the submissions of the defendant is that so far its part is concerned, the matter stood closed and settled. 6. On the other hand, according to the plaintiff, the matter did not stand closed vide Ext. FOR ASIA RESORTS LTD. (R.K. GARG) 12th April, 1988 MANAGING DIRECTOR". 5. In this background sum and substance of the submissions of the defendant is that so far its part is concerned, the matter stood closed and settled. 6. On the other hand, according to the plaintiff, the matter did not stand closed vide Ext. D-l. As subsequent correspondence exchanged between the parties is indicative of the fact, that the passenger ropeway was not satisfactorily working. As such on the basis of the aforesaid two agreements plaintiff was making grievance from time to time to the defendant. Whenever there was problem in the working/operation etc. of the ropeway it was being rectified/maintained by the defendant to make it trouble free. Another plea urged on behalf of the defendant in this context also needs to be noted. It is that performance guarantee furnished by it stood already released after one year, as such this is an additional factor for this Court to hold that everything went smoothly, in terms of the aforesaid agreement and thus nothing remained to be done so far it is concerned. According to defendant though ropeway was working properly and efficiently, however on 16th October, 1982 there was a mishap when this ropeway was on down hill journey. This was widely publicized in the press and media. As a result of this mishap, number of cases have been instituted against the plaintiff. As such with a view to avoid its liability, this frivolous litigation has been thrust on the defendant. 7. Before proceeding further in this case it may be noted that after cross-examination of Mr. R.K. Garg following order was passed by this Court on 3rd January, 2003 :— "Cross-examination of R.K. Garg has been concluded. So far documents filed along with application under Section 20 of the Arbitration Act, rejoinder thereto as well as affidavit dated 25.10.1994 are concerned those will be read in evidence as stated by the witness without any objection regarding their admissibility and/or mode of proof. Learned Senior Counsel for the defendant also stated that those may be read in evidence on behalf of both the parties. Ordered accordingly. Let the case be now listed on 14.3.2003 for cross-examination of A.K. Basu whose affidavit has been filed by the defendant in opposition to the affidavit of R.K. Garg. Learned Senior Counsel for the defendant also stated that those may be read in evidence on behalf of both the parties. Ordered accordingly. Let the case be now listed on 14.3.2003 for cross-examination of A.K. Basu whose affidavit has been filed by the defendant in opposition to the affidavit of R.K. Garg. Learned Counsel appearing for the defendant further stated that witness is no more in their Employment as such, he may be ordered to be summoned through the process of the Court. Prayer allowed. Let process fee, road and diet money as well as present correct address of the witness be filed within one week. Thereafter notice be issued to the witness through registered post, speed post, through the process serving agency of the court concerned where he resides and additionally dasti notice will also be given to the defendant for getting the said witness served. Another prayer has been made on behalf of the defendant that some further evidence needs to be allowed to be lead by requisitioning the record from other Forum(s). As and when a prayer is made to that effect, the same shall be dealt with after hearing the parties in accordance with law. For the aforesaid date, record as detailed in para 2(i) of OMP No. 49 of 96 will also be summoned by the Registry. Plaintiff to file necessary process fee, road and diet money within one week. An authenticated copy of this order will be made available by the Court Secretary to the learned Counsel for the parties on affixation of necessary stamps/ 8. All the documents filed along with the plaint rejoinder, as well as affidavit of Mr. R.K. Garg filed by way of evidence are being read in evidence on the basis of this order. 9. Plaintiff instituted proceedings under Section 20 of the Arbitration Act, 1940 in this Court. Briefly stated case set-up was, that agreement dated 10th April, 1986 was entered into between the parties. As per this agreement, defendant undertook to supply mechanical and electrical items including structure, of the passengers ropeway system required by the plaintiff. Its parameters were defined in Annexure-A to the agreement. Plaintiff further claimed that the system to be supplied and installed was to have the capacity of 150 passengers per hour between Datyar and Banassar, i.e. two destinations. As per this agreement, defendant undertook to supply mechanical and electrical items including structure, of the passengers ropeway system required by the plaintiff. Its parameters were defined in Annexure-A to the agreement. Plaintiff further claimed that the system to be supplied and installed was to have the capacity of 150 passengers per hour between Datyar and Banassar, i.e. two destinations. It was to be on the basis of eight hourly shift which was to have nine trips per hour and total capacity of it was to be 150 persons per hour. Plaintiff further pleaded that within the eight hourly operation the total capacity of the passenger ropeway system would be 1200 persons per day. Plaintiffs further case is that on this assurance of the defendant, it invested huge amount in the project, but this capacity was never achieved. According to plaintiff, there was deficiency in service and thus he suffered maximum financial loss which threw out of gear entire financial viability of the project. This was a continuous loss. 10. In this background plaintiff further claimed that the legal demand notice dated 16th June, 1993 was also served on the defendant, but without any consequence. Since defendant evaded the demand of the plaintiff as such, contract was rescined per force of circumstances. Defendant was also informed that the plaintiff would instal a new ropeway system at the expense and cost of the defendant. In the aforesaid background following reliefs were claimed:— (a) direct the defendant to file the original agreement in court and appoint a Arbitrator by virtue of Clause 18 of the Agreement dated 7th April, 1986 entered into between the parties. The arbitrator may kindly be appointed by this Honble Court and the entire dispute between the parties may be referred to the arbitration of such Arbitrator who may be called upon to announce and file his award in this Honble Court within a maximum period of three months ; (b) Allow any other relief deemed fit by this Honble Court in favour of the plaintiff-applicant and against the defendant-respondent; (c) Allow costs of this application in favour of the plaintiff-applicant and against the defendant-respondent in the interest of law and justice. 11. When put to notice defendant contested and resisted the claim of the plaintiff. Reply was filed by the defendant on the affidavit of one Shri Amit Kumar Basu. 11. When put to notice defendant contested and resisted the claim of the plaintiff. Reply was filed by the defendant on the affidavit of one Shri Amit Kumar Basu. With a view to oppose the application preliminary submissions were made for dismissal of the application in limine. According to defendant the application was barred by limitation in particular under Article 137 of the Limitation Act, 1963 read with Section 20 of the Arbitration Act, 1940. Further, the claim made was barred by time. By referring to the notice dated 16th June, 1993 (Ext. D-3), it was pointed out that it was sent after expiry of period of limitation and does not save the same. According to it, if there was any dispute plaintiff ought to have applied for reference of such a claim within three years from the date of agreement dated 10th April, 1986 whereas application is dated 21st November, 1993. It may be noted that this application was filed in Court on 30th November, 1993. 12. While referring to notice dated 17th April, 1990 Ext. D-4, it was pointed out that if plaintiff had any right or claim then, it could enforce the same by taking action or by initiating arbitration proceedings from the aforesaid date, i.e., 17th April, 1990. According to it the present action was not fair. Defendant further pleaded that the plaintiff sent fresh notice dated 16th June, 1993, that too more than three years later will be of no benefit to the plaintiff. Emphasis was laid on the certificate dated 12th April, 1988 Ext. D-l, and matter having been settled and closed on this date. And with the settlement, the agreement as well as the arbitration clause therein also stood superseded and abrogated. Further submissions made in paras "d to o" of the reply, also revolved around the plea of limitation. Notices dated 17th April, 1990 and 16th June, 1993, as also proceedings having been initiated on 30.11.1993, disentitled the plaintiff from seeking any relief in proceedings under Section 20 of the Arbitration Act, 1940. 13. So far as merits of the case are concerned regarding paras 1 and 2 it is stated that those were matters of record however. But existence of any dispute was denied. 13. So far as merits of the case are concerned regarding paras 1 and 2 it is stated that those were matters of record however. But existence of any dispute was denied. Regarding passenger capacity to transport 1200 persons per day on the basis of eight hourly shift and eight trips per hour, stand of the defendant is that agreement dated 10th April, 1986 did not specify this fact. Plaintiff having invested huge amount into the project or that such investment was based on any representation or assurance or agreement by the defendant was also disputed. It was specifically denied that the working capacity of the system supplied by the defendant and as stipulated and incorporated in the agreement had never been achieved or there was any short fall in the said system. All averments made in this behalf were disputed. Reliance was also placed by the defendant on the reply to notice Ext. D-4 dated 17th April, 1990. This was replied to by the defendant vide Ext. D-5 dated 17th May, 1990. Similarly it was denied that in the meeting held on 19th June, 1988 the question of increase in the capacity was discussed as alleged by the plaintiff. Existence of arbitration clause between the parties and for that matter reference of dispute to arbitrator was also denied. Claim of the plaintiff that defendant owed any money to the former was also disputed. 14. Replication was filed to this reply, wherein by and large facts which were denied in the written statement were controverted. At the same time averments in the petition under Section 20 were reiterated. This court framed issues in this case on 12th July, 1994 as under:— 1. Whether the application in question is within limitation? OPP 2. In case issue No. 1 is decided in the affirmative, whether there is a dispute existing in between the parties? OPP 3. Whether the written statement has been filed by a competent and authorized person? OPD 15. Parties led evidence by way of filing affidavit of Mr. R.K. Garg on behalf of plaintiff and Shri A.K. Basu on behalf of the defendant. OPP 3. Whether the written statement has been filed by a competent and authorized person? OPD 15. Parties led evidence by way of filing affidavit of Mr. R.K. Garg on behalf of plaintiff and Shri A.K. Basu on behalf of the defendant. Thereafter application under Section 20 was allowed vide judgment of this Court dated 29th August, 1997, and this Court while allowing this application, appointed Shri V.P. Bhatanagar a retired Judge of this Court as arbitrator to adjudicate the dispute between the parties in terms of clause 18/15 of the agreement dated 7/10.4.1986 entered between them and make his award after the statutory period reckoned from the date he entered into reference. 16. Defendant felt aggrieved and dis-satisfied with the said judgment of the learned Single Judge, preferred OSA 14/97. After admitting this appeal, on CWP No. 100/97 while issuing notice to the plaintiff, operation of the impugned judgment was stayed. Finally after hearing the parties this appeal was allowed and subsequently it was held that the application under Section 20 of the Arbitration Act, was barred by limitation and on this ground alone while allowing the appeal, application under Section 20 of the Arbitration Act, 1940 i.e. C.S. 2/84 was dismissed. Against this judgment of Division Bench, plaintiff preferred Civil Appeal No. 739/2001 (arising out of SLP (Civil) No. 1721/2000), before the Supreme Court. This appeal was allowed and vide its judgment dated 30th October, 2001, Honble Supreme Court ordered that the delay caused in filing the application by the plaintiff was not wilful and hence was liable to be condoned. This was ordered subject to payment of Rs. 20,000 as costs. Cost was to be deposited with the Registrar General of the Supreme Court on or before 1st December, 2001, when liberty was reserved to defendant to withdraw the same. On payment of cost appeal was to be allowed and failure was to result in its dismissal. Operative portion of this order was as under:— "......the matter would be remitted to the High Court to be proceeded with in accordance with the provisions of Arbitration Act, 1940, read with relevant arbitration clause in the agreement between the parties....." 17. It is in this background that the matter came back to this court and was taken up for consideration. 18. It is in this background that the matter came back to this court and was taken up for consideration. 18. This Court on 23rd May, 1995 in OMP No. 85/93, had ordered that the plaintiff will be entitled to cross-examine Dr. Basu on his affidavit that he had filed by way of evidence on behalf of defendant in this case; and similarly defendant was permitted to cross-examine Mr. R.K. Garg on his affidavit that was filed as evidence on behalf of defendant. 19. Fact remains that Dr. Basu on whose affidavit reply to the application under Section 20 of the Arbitration Act as well as evidence is filed by the defendant is concerned, he did not appear in Court for being cross-examined. Rather a statement was made on 14.3.2003 by the defendant that it was not in a position to produce Mr. Basu for cross-examination as he was not in defendants service. And with a view to cut-short the litigation his affidavit of February, 1995 be not read in evidence on behalf of defendant. Here a contention urged on behalf of defendant in this behalf needs to be noted. It is, that right from 1995 to be prcecise w.e.f. 23rd May, 1995 no effort was made to cross examine the said witness till passing of the judgment of the learned Single Judge in the year 1997. 20. Fact remains that Mr. R.K. Garg was cross-examined at length on the basis of his affidavit on 3rd January, 2003. 21. There are two affidavits filed by Mr. A.K. Basu one is at pages 185 to 191 and other from pages 230 to 252. It was stated at the time of hearing of this case that so far evidence at pages 181 onwards dated 14th September, 1994 is concerned it was filed to show the professional competence of Shri Basu in support of the written statement filed by the defendant. Regarding other affidavit starting from page 230 of the paper book it was stated that it is in the shape of evidence to controvert the affidavit of Mr. R.K. Garg filed on behalf of plaintiff. 22. A brief reference to his affidavit, as well as to his cross-examination, therefore, needs to be made. 23. Mr. Regarding other affidavit starting from page 230 of the paper book it was stated that it is in the shape of evidence to controvert the affidavit of Mr. R.K. Garg filed on behalf of plaintiff. 22. A brief reference to his affidavit, as well as to his cross-examination, therefore, needs to be made. 23. Mr. Garg in his evidence, i.e. his affidavit dated 25th October, 1994 has by and large reiterated what he has stated in the plaint, as well as in the replication. And at the same time has challenged the status of Mr. Basu. According to him Mr. Basu is neither principal officer of the defendant company nor has he placed any document on record to show that he was ever in any manner authorized to file any affidavit on behalf of defendant company. As such the affidavit dated 21st April, 1994 and of September, 1994 are without any authority because he was not competent to file those. In this behalf it may be noted that the defendant was put to notice on this objection from day one when replication was filed by plaintiff to the written statement. Despite this fact, nothing is placed on record to show his authority and/or his being the principal officer to sign, verify and file pleadings/affidavit(s). Thus there is no affidavit in the eyes of law on behalf of the defendant. By referring to other facts while assailing the affidavit of Mr. Basu a copy of Bank guarantee furnished by Canara Bank dated May 12, 1989 has been placed on record as Annexure P-l. Besides this, Annexure P-4 letter dated 13th May, 1988, gives the details of the problems being faced by the plaintiff in the passengers ropeway system is filed. In addition to this, vide Annexure P-5, again problems of ropeway not functioning to its capacity were brought to the notice of one Mr. Prashant Jawar of the defendant company on 13th January, 1989. Copy of review notes as on 23rd February, 1989, Annexure P-7 highlighted problems faced by the plaintiff. Remarks showing as to what was done by the defendant to remove the problems mentioned it and how the plaintiff found those to have been rectified. It is based on the record of the notes of discussion of 20th August, 1988. Copy of review notes as on 23rd February, 1989, Annexure P-7 highlighted problems faced by the plaintiff. Remarks showing as to what was done by the defendant to remove the problems mentioned it and how the plaintiff found those to have been rectified. It is based on the record of the notes of discussion of 20th August, 1988. Most of the items in it were attended to by the defendant; and whatever remained to be attended, time schedule was fixed for doing the needful. 24. In his cross-examination by the defendant, Mr. R.K. Garg, admitted documents; Ext. D-l certificate dated 12th April, 1988, Ext. D-2, minutes of meeting held at Parwanoo on 19th June between the parties/their representatives. Ext. D-3 is the notice dated 16th June, 1993 by the plaintiff to the defendant. Ext. D-4 is the first notice dated 17.4.1990 from plaintiff to defendant. Ext. D-5 is the reply dated 17th May, 1990 sent by the Solicitor of the defendant to Ext. D-4. Ext. D-6 is the reply sent again by the solicitor of the defendant to the notice Ext. D-3. In addition to this correspondence exchanged between the parties and filed as Annexures with the plaint, replication and affidavit have been briefly referred to above. While admitting Ext. D-l, Mr. Garg stated that he did not recollect whether a notice was issued by the plaintiff for appointment of arbitrator, however, he did not nominate any person as arbitrator indicating the defendant in that behalf. He admitted the issuance of bank guarantee having been obtained by the plaintiff from defendant for the satisfactory operation of the trolly in question for one year. To a specific question on behalf of defendant that there was no mention in the agreement dated 10th April, 1996 to carry 1200 persons per day, Mr. Garg replied that per him trolly was to carry 150 persons per hour and during 8 hours it was to carry 1200 persons. Duration of service he admitted to be one year. According to him after expiry of one year it was for the plaintiff to operate the trolly. What was the day when this arrangement was to commence, he did not recollect. He further admitted that ropeway in question was registered with the Inspector of Ropeways to the Government of H.P. under H.P. Aerial Ropeways Act, somewhere in the year 1988. According to him after expiry of one year it was for the plaintiff to operate the trolly. What was the day when this arrangement was to commence, he did not recollect. He further admitted that ropeway in question was registered with the Inspector of Ropeways to the Government of H.P. under H.P. Aerial Ropeways Act, somewhere in the year 1988. He did not re-collect whether ropeway in question was inspected by the Cable Inspector before its registration with the Inspector of Ropeways. However, he voluntarily stated that inspections were being carried out prior to its operation. Certificate was issued before permitting the operation of ropeway trolly but, he was not in a position to give exact date. Log-book was being maintained by the plaintiff company of the ropeway in question. But of the guarantee period it was with the defendant. He admitted the exchange of notices between the parties. He further admitted that Ext. D-3 and Ext. D-4 were issued by lawyers of plaintiff company for arbitration and he had instructed the lawyer for arbitration when those notices were issued. He admitted that there was an accident and the same having been widely publicised. Cases being pending (against the plaintiff), before the National Consumer Commission was also admitted. Letter Ext. D-7 has also been admitted, however, he was not in a position to orally say whether any case was instituted by Consumer Aid and Liberty Organization against plaintiff company. Similar was his reply regarding number of cases about the accident. He, however, denied the suggestion on behalf of defendant that there was no dispute, muchless arbitral dispute between the parties that was required to be referred. This is the entire oral and documentary evidence produced on behalf of the plaintiff. 25. In the aforesaid background, learned Counsel appearing for the plaintiff submitted that after the decision of the Supreme Court, this court does not have to look to any other thing except for referring the matter to an Arbitrator. Per Mr. Sud, the pleadings of the parties, i.e., his client making an averment and its being denied by the defendant, by itself constituted a dispute which is referable for arbitration. According to him so far plea of claim being time barred is concerned anything said either way, is likely to prejudice one of the parties. Reason being that this is also a question to be decided by the Arbitrator. According to him so far plea of claim being time barred is concerned anything said either way, is likely to prejudice one of the parties. Reason being that this is also a question to be decided by the Arbitrator. Both these pleas were controverted by Mr. Karol, Senior Counsel appearing for the defendant. He submitted that his client has been made able to show cause, in accordance with subsection 4 of Section 20 of the Arbitration Act, 1940 that no case is made out for invoking Section 20 on behalf of the plaintiff. He further submitted that even if this submission is not accepted, in that event, assuming for the sake of argument that there is an arbitral dispute, still prima facie on admitted facts claim being time barred no fruitful purpose is going to be served by referring the same to be adjudicated upon by the Arbitrator because the claim has already been held to be time barred by the Supreme Court. Further per him power under Section 20 being discretionary, therefore, has to be used with circumspection by this Court and not as a matter of course. Assuming for the sake of argument again without conceding, Mr. Karol pointed out that application under Section 20 does not disclose any cause of action and also lacks material particulars so as to enable this court to adjudicate upon the present application. Thus he prayed for dismissal of the present application. He submitted that contract stood nova ted after issuance of Ext. D-l, certificate and admitted by Mr. R.K. Garg, on behalf of the plaintiff. Plaintiff was never ready and willing to perform its part of the agreement/obligation under the arbitration clause. Plaintiff also never invoked the same by having recourse to it. Plaintiff has disentitled itself from seeking any relief because of the mis-statement of facts as well as by suppression of true, correct and material facts while filing this application under Section 20 (supra). And as already pointed earlier in its pleadings, present proceedings are nothing but a counter-blast to the action initiated against the plaintiff before the National Consumer Commission. 26. By referring to a Supreme Court judgment, Mr. Karol further pointed out that, its only consequence is, that the delay in filing application under Section 20 of the Arbitration Act was condoned on payment of costs by the Supreme Court and nothing more. 26. By referring to a Supreme Court judgment, Mr. Karol further pointed out that, its only consequence is, that the delay in filing application under Section 20 of the Arbitration Act was condoned on payment of costs by the Supreme Court and nothing more. Otherwise all pleas raised by him need to be adjudicated upon by this Court and then to decide whether the matter is referable or not. 27. Arbitration clause in this case needs to be extracted here. It is in the following terms:— "If at any time any question, dispute and difference whatsoever shall arise between ARL and UBL in relation to or in connection with this agreement, both parties agree to resolve such differences by mutual consultation failing which either party may give to the other notice in writing of the existence of such question, dispute or difference and the same shall be referred for the final determination of a single arbitrator, if agreed upon or to two arbitrators one to be appointed by ARL and another by UBL; or in case of disagreement between the said two arbitrators to the final arbitration of an umpire to be appointed by the said two arbitrators and that the award of the sole arbitrator or the said Umpire as the case may be shall be final and binding on both the parties and the said arbitration proceedings shall be governed by the provisions of the Indian Arbitration Act, 1940 and the rules thereunder, to be read together with all statutory amendments or modifications of the said Act." 28. Learned Counsel for the parties stated that except this there is no other arbitration clause in either of the agreements, i.e., on 7th April, 1986 and 10th April, 1986. 29. With a view to support his submission that whether the claim is time barred or not was a question to be decided by the Arbitrator Mr. Sood placed reliance on a decision of Supreme Court in Union of India and another v. M/s. L.K. Ahuja and Co., AIR 1988 SC 1172. As according to him whether a claim subsists or not or is not arbitral is a question to be determined by the arbitrator. Sood placed reliance on a decision of Supreme Court in Union of India and another v. M/s. L.K. Ahuja and Co., AIR 1988 SC 1172. As according to him whether a claim subsists or not or is not arbitral is a question to be determined by the arbitrator. Relevant extract from this decision is as under:— "In view of the well-settled principles we are of the view that it will be entirely wrong to mix-up the two aspects, namely, whether there was any valid claim for reference under Section 20 of the Act, and, secondly, whether the claim to be adjudicated by the arbitrator, was barred by lapse of time. The second is a matter which the arbitrator would decide unless, however, if on admitted facts a claim is found at the time of making on Order under Section 20 of the Arbitration Act, to be barred by limitation. In order to be entitled to ask for a reference under Section 20 of the Act, there must be an entitlement to money and a difference or dispute in respect of the same. It is true that on completion of the work, right to get payment would normally arise and it is also true that on settlement of the final bill, the right to get further payment gets weakened but the claim subsists and whether it does subsist, is a matter which is arbitrable. In this case, the claim for reference was made within three years commencing from April 16, 1976 and the application was filed on December 18, 1976. We are, therefore, of the view that the High Court was right in this case. See in this connection the observations of this Court in Major (Retd.) Inder Singh Rekhi v. D.D.A., (1988) 2 JT 6 : (AIR 1988 SC 1007)." 30. Mr. Sood also placed reliance on Subhashchandra Patodi, Indore v. Food Corporation of India, AIR 1992 M.P. Page 315. While dealing with the question whether the claim is barred by limitation or not, it was held in this case that it is for the arbitrator to decide. It was further observed, that the reference cannot be refused on the ground that claim is barred by limitation. What was held in this behalf after placing reliance on behalf of decision of Union of India v. M/s. L.K. Ahuja and Co. (supra) was as under :— "4. It was further observed, that the reference cannot be refused on the ground that claim is barred by limitation. What was held in this behalf after placing reliance on behalf of decision of Union of India v. M/s. L.K. Ahuja and Co. (supra) was as under :— "4. Applying the aforesaid test to the present case, it is clear that there is a valid claim for reference under Section 20 of the Arbitration Act. The Food Corporation of India, the original claimant before the lower court, has claimed a specific amount as damages. This amount according to the FCI came to be quantified only after the work was got done from other contractors. Irrespective of the fact whether the claim would be allowed on merits or not, it is plainly within limitation. The matter whether actually the claim made by the FCI is barred by limitation or not is for the arbitrator to decide. The application, therefore, has no force and is accordingly dismissed. The parties shall bear their own costs." 31. On the other hand, Mr. Karol submitted that while considering an application under Section 20 of the Arbitration Act, 1940, court has to exercise discretion with care and caution. With a view to support his submission reliance was placed by him on Abdul Kadir Shamsuddin Bahere v. Madhav Prabhakar Oak and another, AIR 1962 SC 406. In this case allegation of fraud was made, under Section 20(b) of the Act (supra) it was held that it is only in cases of allegation of fraud of a serious nature that the court shall refuse a arbitration agreement to be filed and will not make a reference. It was also observed that aforesaid sub-section also leaves wide discretion to court to consider whether application for filing of an agreement should be allowed and reference be made accordingly or not. It was further held that it is not desirable to lay down in general terms that what can be sufficient cause which would entitle the court to refuse to order an agreement be filed or refuse to make an order of reference. Court will have to decide on the facts of each case whether sufficient cause has been made out or not. This decision does not advance the plea of the defendant on the facts in the present suit. 32. Reliance was also placed by Mr. Court will have to decide on the facts of each case whether sufficient cause has been made out or not. This decision does not advance the plea of the defendant on the facts in the present suit. 32. Reliance was also placed by Mr. Karol on two decision, in M/s. Kalipada Das v. M/s. North Bihar Sugar Mills Ltd., 1982 Calcutta 48, and on J.S. Sood v. Saawan Kumar, 1983 Delhi 273. In the Calcutta case it was observed that the conduct of the parties for filing agreement clearly demonstrates that he had no intention to go to arbitration and to take recourse to suit and apart from this fact he himself alleged bias and sought arbitrator to be appointed under the Arbitration Agreement and therefore asked for variation of the agreement under Section 20 by changing the name of the arbitrator. In such a situation it was held that court would not exercise its discretion in favour of the applicant as the conduct of the party constitutes sufficient cause for not making on order under Section 20 (supra). 33. Similarly in Delhi case, while interpreting words "sufficient cause" under Section 20(4) (supra), while denying the claim made by the respondent, after noting the fact that the appellant and respondent had agreed to appoint a sole arbitrator who was the appellants employee and it was within his full knowledge that respondent entered into an agreement. Respondent challenged the reference on the ground, inter alia, that named arbitrator was appellants employee, who will be biased and interested. However, there was no specific allegation of bias and partiality, nor was there any satisfactory reason to forward or to go back from the agreement. In these circumstances it was held that mere fact that the named arbitrator was the appellants employee would not furnish a cause for refusing the reference. In this background, the appeal of the appellant was allowed and the order of the learned Single Judge of the High Court to the contrary was set aside. It was further ordered that two agreements be filed, and order of reference of disputes raised in the petition to Manohar Singh Bisht, the sole Arbitrator agreed upon between the parties was made. 34. Next decision relied upon by Mr. Karol was of M/s. Rai Bahadur Baskha Singh and Sons (Contractors) Pvt. Ltd. v. M/s. Indian Drugs and Pharmaceutical Ltd., AIR 1979 Delhi 220. 34. Next decision relied upon by Mr. Karol was of M/s. Rai Bahadur Baskha Singh and Sons (Contractors) Pvt. Ltd. v. M/s. Indian Drugs and Pharmaceutical Ltd., AIR 1979 Delhi 220. In this case particulars of dispute to be referred to, having not been disclosed in the application under Section 20. As a matter of practice it was held that the reference cannot be ordered. However in this Civil Suit in the face of facts briefly noted above it cannot be said that no dispute in the face of facts is pleaded by the plaintiff when read with the accompanying annexures. 35. So far parties having been relegated to the stage of initiation of proceedings under Section 20 after condonation of delay is concerned, there can be hardly any dispute and in this behalf contention urged by Mr. Sood that this Court is only to refer to the disputes for arbitration cannot be accepted. Reasons being that after condoning delay Supreme Court had directed this Court to proceed in accordance with the provisions of the Arbitration Act, 1940 read with relevant arbitration clause in the agreement between the parties. It was only pursuant to this direction that deponents of the affidavits filed by the parties by way of evidence were directed to be summoned for cross-examination. So far plea of the defendant that power under Section 20 is discretionary and sufficient cause having been made out by the defendant as well as claim in law and on admitted facts being ex facie barred by time is concerned looking to the decision of the Supreme Court in Union of India v. L.K. Ahuja and others, as well as the decision of M.P. High Court (supra), is a question to be determined by the Arbitrator and not by this Court. Even if it be assumed for the sake of argument that same was barred by time as alleged by the defendant. I may hasten to add here, that nothing to the contrary has been brought to my notice particularly in the face of the decision of the Supreme Court. 36. Once this conclusion is arrived at, the plea of defendant, that application under Section 20 does not disclose any cause of action or lacks any material particulars, not disclosing any dispute or difference also cannot be accepted. 36. Once this conclusion is arrived at, the plea of defendant, that application under Section 20 does not disclose any cause of action or lacks any material particulars, not disclosing any dispute or difference also cannot be accepted. Reason being that a perusal of the said application clearly suggests that the plaintiff had made a grievance regarding the capacity of trolly not giving the required output of 150 passengers per hour on eight hourly basis besides other claims/pleas. Plaintiff has reiterated this position time and again in its pleadings as well in annexures attached to such pleadings. Thus to say that the material facts were lacking in this behalf or that the reference would be an exercise in futility is not correct on the part of the defendant. In my considered view on the facts pleaded in the petition under Section 20 (supra), it can safely be held that it does disclose a cause of action. Similar is the position regarding disclosure of dispute/difference between the parties. It hardly needs to be clarified here that while considering this aspect of the case, only averments made in the application under Section 20 need to be noted. Further in the absence of anything having been placed on record, in the face of objection of the plaintiff challenging the authority/right of Mr. Basu to have signed/verified/ filed pleadings/affidavits etc. or anything having been shown at the time of hearing, it can safely be held that this is a case of no pleadings/evidence being there on behalf of the defendant. On this ground it can be held that there are disputes existing between the parties which need to be decided under Arbitration Clause. 37. After having argued on other pleas like completion of contract and its novation in view of the Ext. D-l for some time, Mr. Karol urged that in the face of the view taken by this Court in the earlier part of this judgment, this question be also left to be determined by the Arbitrator. Prayer granted and ordered accordingly. 38. To be fair to the learned Senior Counsel for the defendant, another argument urged also need be noted here. It was that even if everything is held in favour of the plaintiff appointment of arbitrator was dependant on different steps which were required to be taken by the parties one after the other. Prayer granted and ordered accordingly. 38. To be fair to the learned Senior Counsel for the defendant, another argument urged also need be noted here. It was that even if everything is held in favour of the plaintiff appointment of arbitrator was dependant on different steps which were required to be taken by the parties one after the other. Firstly it was for the plaintiff, to ask resolving such differences by mutual consultation; failing which either party was to give to the other notice in writing of the existence of such question, dispute or difference and the same was to be referred for final determination of a single arbitrator if agreed upon; or to two arbitrators one to be appointed by each of the parties, or in case of disagreement between the two said arbitrators, of an umpire to be appointed by the said two arbitrators and the award of the sole arbitrator or the said umpire, as the case may be, was to be final. 39. In this behalf suffice it to say that the plaintiff was pointing out the irritants those were being experienced in the operation of the cable car ropeway. Its grievances are clearly made out from the correspondence exchanged between the parties and the minutes of the meetings held from time to time. Vide Ext. D-3 and Ext. D-4 plaintiff had highlighted what was its grievance. It is a different matter that so far Ext. D-4 is concerned it was elaborately replied by the defendant, however a brief reply was sent to Ext. P-3. Even thereafter plaintiff had called upon the Solicitor of the defendant to make it known to the plaintiff as to whether any further reply is to be sent by them on behalf of the defendant or not and there is a communication to that effect on record. However, no reply has been sent to this notice. In these circumstances to say that the plaintiff was not ready to do his part of the obligation and or he never invoked the said clause would not be proper. Waiver on the part of plaintiff, that was set up as a plea by the defendant not also has no merit. Another fact that needs to be noted here is that despite Ext. D-l, defendant was attending to the complaints/grievances of plaintiff after 12.4.1988. Why? There is no satisfactory explanation from the defendant. Waiver on the part of plaintiff, that was set up as a plea by the defendant not also has no merit. Another fact that needs to be noted here is that despite Ext. D-l, defendant was attending to the complaints/grievances of plaintiff after 12.4.1988. Why? There is no satisfactory explanation from the defendant. As such the same is rejected. 40. Before concluding what further needs to be noted in the instant case is taking care of the issues framed in this case, those need issue wise findings. So far issue No. 1 is concerned with the passing of the judgment by the Honble Supreme Court, it had become redundant. 41. Now coming to issue No. 3. In this behalf it may be appropriate to notice that admittedly nothing has been produced on record before this Court directly, indirectly or even remotely to show prima facie that Shri A.K. Basu was competent to have either verified and or filed the written statement as a principal officer of the defendant company, or was holder of an attorney, and or having been authorized by a resolution in that behalf so as to represent the defendant in these proceedings. And further even if said Shri Basu was not in the employment of the defendant when statement was made on 3rd January, 2003, fact remains that right from day one when said gentleman had filed the written statement, defendant was put to caveat by the plaintiff, when his authority (Mr. Basus) to file the same was questioned in no uncertain terms. No attempt was made by the defendant to place anything on record in that behalf. In this view of the matter, there is no option but to decide issue No. 3 against the defendant and in favour of the plaintiff. However issue No. 2 is held in the affirmative in favour of the plaintiff and against the defendant. 42. No other point is urged. 43. In view of the aforesaid discussion and looking to the tone and tenor of the pleadings of the parties in this case, it is clearly made out that in the peculiar facts and circumstances, arbitrable disputes do exist between the parties which need to be referred for adjudication by Arbitrator, as it is not possible for the parties to resolve those by mutual consultation. In these circumstances, parties are directed either to nominate a single Arbitrator by mutual agreement within four weeks from today for adjudicating the dispute/differences between them. This petition stands finally disposed of in these aforesaid terms subject of course to the nomination/appointing of a sole Arbitrator. For this limited purpose, the case is ordered to be listed on 26th September, 2003. Costs on the parties. It hardly needs to be clarified that anything said in this judgment is meant only for disposal of this application and is not an expression on merit of the claim/counter-claim of the parties. In the event of matter going to the arbitrator he shall dispose of the same strictly on the basis of materials which may be produced by the parties before him, of course in accordance with law. -