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2005 DIGILAW 1846 (RAJ)

Ratan Singh v. District Judge. Jodhpur

2005-07-20

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the petitioner. 2. It appears from the facts that the petitioner obtained a contract in the year 1985-1986. According to petitioner, he completed the work by 14.01.1989 and his last bill was paid by the respondent on 23.03.1989. The petitioner accepted the amount sent by the respondents on 17.01.1992 under protest. After 17.01.1992, the petitioner served a notice on 14.02.2000 and that is the first notice as admitted by the petitioner. The petitioner submitted petition before the Court of learned District Judge, Jodhpur under Section 11(5) of the Arbitration and Conciliation Act, 1996 praying that arbitrator may be appointed as petitioner has raised dispute by serving notice dated 14.02.2000. The petitioners petition for appointment of arbitrator was dismissed by the learned District Judge vide order dated 2nd June, 2005 on the ground that the application for appointment of arbitrator was filed after 8 years is apparently barred by time. 3. Learned Counsel for the petitioner submits that the limitation for initiation of the proceedings for arbitration starts when other party refuses to appoint the arbitrator and in this case, when petitioner served a notice upon the respondents on 14.02.2000, the respondents denied the claim of the petitioner and refused to appoint the arbitrator on 27th April, 2000 only and, therefore, the petitioners petition for appointment of arbitration was within the period of limitation. 4. I considered the submissions of learned Counsel for the petitioner, but in the view of the Judgment of this Court delivered in the case of State of Rajasthan vs. M/s. Mehta Chetan Das Krishandass, reported in AIR 1983 (Raj.) 36, which was a case under the Arbitration Act, 1940, wherein this Court held that Article 136 of the Limitation Act, 1963 applies to the applications filed under Section 8(2) of the Arbitration Act, 1940, after relying upon the Judgment of the Honble Supreme Court delivered in the case of Kerla State Electricity Board vs. T.P. Kunhaliumma, reported in AIR 1977 SC 282 . The some analogy applies for the petition filed under Section 11(5) of the Arbitration and Conciliation Act, 1996 and, therefore, the petition filed by the petitioner under Section 11(5) of the Arbitration and Conciliation Act, 1996 was barred by time. 5. Apart from above, it will be worthwhile to recapitulate the facts. The petitioner was awarded work contract in the year 1985-86. 5. Apart from above, it will be worthwhile to recapitulate the facts. The petitioner was awarded work contract in the year 1985-86. According to petitioner himself , last payment was sent to the petitioner through cheque by the respondents, which petitioner accepted on 17.02.1992 under protest. Therefore according to petitioner himself , the dispute arose between the petitioner and the respondents on 17.01.1992, but he raised the dispute by putting a note of protest. Be that as it may, the petitioner could have claimed any benefit under the contract within a period of three years, if there was any monitory claim of the petitioner. Otherwise also, for a suit for recovery of any money, limitation for filing the suit is three years and unless it is acknowledged or part payment is made, it expires with the expiry of three years. The limitation can be extended before its expiry and not thereafter. The petitioner nowhere says that the limitation has been extended because of either acknowledgment or by part payment of the due amount by the respondents. 6. In view of the above even in case one is seeking appointment of arbitrator then he can submit application in Court within the period by which his remedy in civil law has not become barred. 7. The contention of learned Counsel for the petitioner is principally on assumption that the cause of action for filing the petition under Section 11(5) of the Act of 1996 accrues on other partys refusal to appoint arbitrator, but this argument has been advanced without noticing about the period within which a demand can be raised. A demand can be raised only within the period within which one can lawfully file suit or can initiate any proceeding under any provision of law for getting the relief , i.e., before remedy becomes barred. The provisions of Limitation Act equally applies to the proceedings under the Arbitration Act and further as per the Section 43(1) of the Arbitration and Conciliation Act, 1996, the Limitation Act, 1963 has been made applicable. Therefore, the maximum period of limitation available to any person for moving application under Section 11(5) is only three years if not extended by the other party in accordance with law. Therefore, the maximum period of limitation available to any person for moving application under Section 11(5) is only three years if not extended by the other party in accordance with law. Since, in this case that period has already expired long back before, before petitioners raising demand which is much before petitioners filing of the application under Section 11(5) of the Act of 1996, therefore, the Court below was right in rejecting the petitioners application. 8. In view of the above, I do not find any merit in this writ petition and the same is hereby dismissed.