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2009 DIGILAW 1001 (JHR)

Amrendra Kumar v. State of Jharkhand

2009-07-20

GYAN SUDHA MISRA

body2009
Order This application has been filed by the petitioner for appointment of an Arbitrator in regard to a dispute, which, according to him, has arisen on account of non-payment of a sum of Rs.1, 16,450/-. 2. However, after hearing the counsel for the parties, it is clear that a work order was issued to the petitioner for a sum of Rs. 3,55,800/- for construction of a canal know as Torai Left Bank Main Canal. This work-order was issued to the petitioner way back in the year 1976-77 and the same was executed arid completed in the year 1979 after certain extensions were granted in favour of the petitioner. The petitioner also received payment of Rs. 3,34,499/-, which was as per the work executed by him and the last payment that was received by him was on 25th March, 1985, which' he claims to have received under protest. Thereafter, the petitioner although filed an application for appointment of an Arbitrator, the same got bogged down into departmental enquiries and opinion and finally the respondents did not appoint an Arbitrator, although there was a clause to that effect in the agreement. 3. The respondents although failed to appoint .an Arbitrator, the petitioner did not file any application for appointment of an Arbitrator, but filed a writ petition in the High Court for the reasons best known to him, which ultimately was dismissed, granting liberty to him to take recourse to clause 23 of the agreement for appointment of an Arbitrator. Thereafter he also seems to have gone one step ahead for appointment of an Arbitrator, but he did not file an application for appointment of an Arbitrator before the High Court, He, however, had filed a suit before the District Court claiming payment in terms of the agreement, which was dismissed on the ground that there is a clause for arbitration by appointment of an Arbitrator. 4. The petitioner finally filed this application for appointment of an Arbitrator in the year 2007 claiming a sum of more than Rs. 56 lacs which, on the face of it, appears to be exorbitant as the work-order awarded to the petitioner was for Rs. 3,55,800/-, against which he has already received payment of Rs. 3,34,499/- way back in the year 1985. 56 lacs which, on the face of it, appears to be exorbitant as the work-order awarded to the petitioner was for Rs. 3,55,800/-, against which he has already received payment of Rs. 3,34,499/- way back in the year 1985. Yet if he was dissatisfied, there was a clause in the agreement to seek appointment of an Arbitrator, but the petitioner travelled one forum to the other and finally filed the application for appointment of an Arbitrator before this Court in the year 2007. Thus, this application is time barred by more than 22 years under Section 43(1) of the Arbitration and Conciliation Act, 1996, which clearly lays down that the Limitation Act, 1963, shall apply to arbitrations as it applies to proceedings in Court. Section 43(3) of the Arbitration and Conciliation Act, 1996, no doubt, also incorporates a provision to the effect that where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement and a dispute arises to which the agreement applies, the Court, if it is of the opinion that in the circumstances of the case undue hardship would otherwise be caused, notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper. 5. However, the petitioner/applicant has not even raised an issue that this Court should condone the delay of 22 years in raising the dispute on the ground that he had taken steps for appointment of an Arbitrator although before wrong forums as unnecessarily he had filed writ petition as also a suit and also travelled in the Department raising his claim, ignoring the fact that he had already received payment of Rs. 3,34,499/- against a workorder for a sum of Rs. 3,55,800/- only. The petitioner moved, from one forum to the other, which he perhaps was not required to do and in that process he started claiming that he was entitled to receive a sum of more than Rs. 56 lacs, completely ignoring the fact that the work-order itself was for a sum of Rs. 3,55,800/- only. 6. 3,55,800/- only. The petitioner moved, from one forum to the other, which he perhaps was not required to do and in that process he started claiming that he was entitled to receive a sum of more than Rs. 56 lacs, completely ignoring the fact that the work-order itself was for a sum of Rs. 3,55,800/- only. 6. As already stated, there is not even a whisper in his application that this Court should condone the delay of 22 years in filing this application for appointment of an Arbitrator in regard to a cause of action which might have arisen in the year 1985. In the year 1985, when the petitioner received the last payment as per execution of his work-order, he might have travelled one forum to the other, nevertheless the fact remains that he has filed this application for appointment of an Arbitrator without any explanation in this regard under Section 43(3) of the Arbitration and Conciliation Act, 1996, and he is missing that he cannot be permitted to raise a claim of more than Rs. 56 lacs from the respondents against a work-order for Rs. 3,55,800/- only by filing an application for appointment of an Arbitrator after a delay of 22 years which might have occurred due to the petitioner's wrongful action of moving- one .forum to the other, ignoring the fact that the dispute, if at all existed, had a remedy of filing an application for appointment of an Arbitrator. At this stage, it is worthwhile to reiterate that the petitioner had wrongfully moved a writ petition for appointment of an Arbitrator in the year 1992 and that writ petition was dismissed with liberty to the petitioner to take recourse to the clause of the agreement for appointment of an Arbitrator, yet he did not file any application for appointment of an Arbitrator, but filed a suit for appointment of an Arbitrator and the same was rejected since the agreement between the parties envisaged a clause for appointment of an Arbitrator. The petitioner in the process caused a delay of more than 22 years in filing an application for appointment of an Arbitrator. 7. The petitioner in the process caused a delay of more than 22 years in filing an application for appointment of an Arbitrator. 7. In fact, the cheque red history of events which has taken place prior to filing of this application, cannot be a reason for this Court to condone the huge delay of 22 years as the petitioner has not even raised any contention that it is a just cause where the delay should be condoned and it is only in the process of argument that this long history of delay came to light. Besides this, the dispute that has been raised appears to be absolutely frivolous and does not indicate any cause of justice in his favour as he has already received a sum of Rs. 3,34,499/as against the work-order for a sum of Rs. 3,55,800/-, which was to be completed in the year 1979, but was completed much later, for which the petitioner also received the payment in the year 1985 although under protest. Thereafter, the petitioner did not file any application for appointment of an Arbitrator before the correct forum after the respondents had failed to appoint an Arbitrator and thus, the consequence obviously will have to be suffered by the petitioner/applicant, who approached the wrong forum and has failed to justify as he has not even filed any application for condonation of delay. 8. The application, therefore, for appointment of an Arbitrator after 22 years of the emergence of the dispute, which even at a glance is not bona fide, cannot be allowed to be entertained and accordingly the application is rejected.