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2005 DIGILAW 70 (MP)

Naresh and Co. v. State of M. P.

2005-01-12

DIPAK MISRA, U.C.MAHESHWARI

body2005
Judgment ( 1. ) IN this civil revision preferred under Section 19 of M. P. Madhyastham Adhikaran Adhiniyam, 1983 (for brevity, the Act) the petitioner has called in question the warrantableness of the order passed by M. P. Arbitration Tribunal (in short, the tribunal) in Reference Case No. 254 of 1991 on 04. 05. 1995 whereby the tribunal has expressed the view that part of the claim put forth before the tribunal was barred by limitation. ( 2. ) THE facts that have given rise to the present revision are that the petitioner was awarded earth work in respect of Project Work of Right Bank, Main Canal of Kolar Project and petitioner completed the work in question on 30th October, 1986. The final bill was prepared by the respondents and certain amount was paid to the petitioner. ( 3. ) THE grievance of the petitioner was that cost of earth work, actual lead and lift and escalation while doing earth work, actual lead and escalation was not paid by the respondents. The petitioner entered into communication with Superintending Engineer, who is the final authority under the agreement to settle dispute between the parties. But as the final authority did not resolve the same, he filed the application before the tribunal on 23. 01. 1991. ( 4. ) RESPONDENTS entered into a contest and resisted the claim put forth by petitioner on the ground that the claim as has been presented before the tribunal is barred by limitation being hit by Section 7-B (1) of the Act of 1983. Before the tribunal, it was contended that as the Superintending Engineer had failed to give a decision on the claims put forth by the contractor, Section 7-B (1) (b) would come into play from the date of reference of dispute as per Exh. P64, dated 06. 06. 1990 and, therefore, the filing of reference on 23. 11. 1991 would be well within time as the limitation is to be computed from 06. 06. 1990. ( 5. ) THE tribunal took note of the Amendment Act No. 9 of 1990, which incorporates the concept of dispute as well as limitation of 24. 04. 1990. After dealing with the dictionary clause relating to dispute as enshrined in Section 2 (1) (b) and further discussing language in which the letters contained in Exhs. 06. 1990. ( 5. ) THE tribunal took note of the Amendment Act No. 9 of 1990, which incorporates the concept of dispute as well as limitation of 24. 04. 1990. After dealing with the dictionary clause relating to dispute as enshrined in Section 2 (1) (b) and further discussing language in which the letters contained in Exhs. P60, 61, 63, 64, have been couched the tribunal came to hold that while in Exh. P61, dated 05. 12. 1988, the amount was quantified by the claimant and, therefore, it raised the dispute as per the amended provision. Hence, the limitation commenced from the date of submission of reference. The tribunal expressed the view that the claims would have been adjudicated by the tribunal if they had been presented before 23. 03. 1991 and as they were for the first time raised on 06. 06. 1990 for a sum of Rs. 3,48,412. Tribunal came to hold that the said claims were not within limitation. ( 6. ) ASSAILING the aforesaid order, it is contended by Mr. Rao that the tribunal has misconstrued the documents, namely, Exhs. P60, 61, 63, 64 and has erroneously come to hold that the claim put forth were in the realm of dispute as per terms contained in Section 2 (1) (d) and the further reiteration vide Exh. P61 of further representation would not keep the claims alive is fallacious. ( 7. ) MR. Harish Agnihotri, learned Government Advocate has submitted that the interpretation placed on the documents which were brought before the tribunal would clearly show that a dispute was raised before the final authority under Clause 51 of the agreement and if that is regarded as the starting point, there can be no trace of doubt that they are barred by limitation. ( 8. ) THE fulcrum of the matter rests on the letters issued by the petitioner. In the Exh. P60, dated 14. 09. 1988 in paragraph 4, the claimant stated that an amount of Rs. 1,25,000 been deducted from their bill and kept in deposit by the Executive Engineer for want of the approval of the final authority. In Exh. P61, the claimant put forth as under: "as per sanctions accorded by your goodself the operative period of our contract has exceeded 12 months. Hence, we were entitled for payment of escalation as per formula given in our agreement. In Exh. P61, the claimant put forth as under: "as per sanctions accorded by your goodself the operative period of our contract has exceeded 12 months. Hence, we were entitled for payment of escalation as per formula given in our agreement. Unfortunately no escalation has been paid to us till today. Your goodself is requested to issue orders for immediate payment of escalation also. " ( 9. ) VIDE Exh. P63 sent on 01. 08. 1989, there was reference to other letters the Exhs. P60 and P61. Exh. P63 is dated 01. 08. 1989. In the aforesaid letter, there was a claim of non-payment of escalation of non-payment of lift as per actual non-payment of earth involved and eventually it is put forth as under: "your goodself is again requested kindly to arrange for the payment of our dues within a months period. The matter has already been over-delayed. In case we do not receive payment of our legitimate dues in the above period we shall be forced to approach the Arbitration Tribunal, M. P. , Bhopal. In such a case, department will be responsible for all costs, if any. " ( 10. ) ON a perusal of the aforesaid documents, there can be no iota of doubt that claims were raised before the final authority. ( 11. ) AT this juncture, it is appropriate to refer to the Section 7-B of the Act of 1983. It reads as under: "7-B. Limitation (1) The tribunal shall not admit a reference petition unless : (a) the dispute is first referred for the decision of the final authority under the terms of the works contract, and (b) the petition to the tribunal is made within one year from the date of communication of the decision of the final authority: Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the tribunal shall be made within one year of the expiry of the said period of six months. (2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of the Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement. " ( 12. ) FOR expressing the view that the limitation expired on 23. 04. 1991 to arrive at a conclusion for or in our considered view, Sub-section (2) of Section 7-B has to be pressed into service. Once we concur with the finding of the tribunal that a dispute was raised and the final authority did not decide, it was obligatory on the part of the claimant to file a reference within a period as prescribed under Sub-section (2) within one year from the date of commencement of Section 7-B. The Section 7-B came into statute book on 24. 04. 1990. Accordingly the tribunal has held that the claim could have been presented before it on 23. 04. 1991. We have no hesitation in holding that the finding recorded by the tribunal in this regard is absolutely presentable and does not warrant any interference in as much as a dispute was raised but a decision was not taken within the time limit of one year as per Sub-section (2) of Section 7-B. ( 13. ) IN view of the aforesaid, we do not find any merit in this civil revision and the same is accordingly dismissed without any order as to costs. C. C. as per rules.