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Judgment
S. No.,Detail of Claims,"Amount Claimed
(in INR)
1,"Claimed against Liquidated
Damages","1,964,230.00
2,"Claim for Idle Charges for
Machinery, Man Power,
Loss of Overheads &
Opportunity","62,91,36,519.00
3,"Claim for Difference in
Schedule of Rates between
2003 & 2009 and
Escalation thereon","34,75,17,340
4,Claim for Idle Charges of Labor,"9,24,330.00
5,"Claim for Refund of Excess
Amount of Royalty
Recovered","66,42,097.00
6,"Claim for Excess Consumption of
Cement due to Design Mix","4,83,67,971.00
7,"Claim for Shortage in
Volume to Weight of
Concrete","1,73,10,394.00
8,Claim for De-silting Expenses,"2,19,08,422.00
9,"Claim for Payment of Work Done
but not Billed","4,33,77,849.00
10,"Claim for Release of
Unbalanced Rates (RA bills
1 to 43)","19,89,528.00
11,"Claim for Difference in Rate for
EIRL Items","41,99,200.00
12,"Claim for Refund of Withhold
Amounts","34,82,011.00
13,"Claim for Interest on All Claim
Amounts Submitted","82,86,05,443.00
S.No.,Detail of Claims,"Amount Claimed
(in INR)
1,Claimed against Liquidated Damages,"1,964,230.00
2,"Claim for Idle Charges for Machinery,
Man Power, Loss of Overheads &
Opportunity","62,91,36,519.00
3,"Claim for Difference in Schedule of
Rates between 2003 & 2009 and
Escalation thereon","38,44,12,021.0
4,Claim for Idle Charges of Labor,"9,24,330.00
5,"Claim for Refund of Excess Amount of
Royalty Recovered","66,42,097.00
6,"Claim for Excess Consumption of
Cement due to Design Mix","4,83,67,971.00
7,"Claim for Shortage in Volume to Weight
of Concrete","1,73,10,394.00
8,Claim for De-silting Expenses,"2,19,08,422.00
9,Claim for Final Bill (BOQ items),"2,87,07,845.00
10,"Claim for Release of Unbalanced Rates
(RA bills 1 to 43)","19,89,528.00
11,"Claim for Difference in Rate for EIRL
Items","48,01,149.00
12,Claim for Refund of Withhold Amounts,"43,73,698.00
13,"Claim for Interest on All Claim Amounts
Submitted","82,86,05,443.00
14,Claim for legal expenditures,Actual Cost
15,"Claim for Escalation bills receivable on
RA bills 1 to 44 and Final Bill","8,91,52,422.00
16,"Claim for refund of Security Deposit
recovered from our RA Bills 1 to 44","2,56,86,372.00
17,"Claim for refund of Earnest Money
Deposit","25,43,500.00
,Total Amount Claimed (in INR),"2,09,65,25,941. 00
party and the proposed claims are time barred because after filing reference petition no further construction has been made by the petitionerÂ,,
for submitting his final bill, therefore, the proposed amendment being time barred cannot be allowed.Â",,
(7) The Tribunal dwelling upon the factual aspect observed:,,
“On perusal of the reference petition, it transpires that it has been filed on 13.2.2015. In para 9 to 11 of the reference petition, the date of cause of",,
action for the petitioner to file its claim had arisen on 11.11.2013 and 10.5.2014. Though the petitioner has stated in para 9 that the petitioner is,,
submitting its claims arising up to March 2015 and further claims would be submitted after completion of the work, but no permission was sought in",,
this regard from the Tribunal to reserve its right. Moreover, the petitioner has not disclosed in I.A.No.4 that after filing the reference petition on",,
13.2.2015, when the remaining incomplete work was executed and completed by it, no date for completion of the work has been mentioned either in",,
the application I.A.No.4 or in the quantified claim Annexure 201. Only the dates 1.5.2016 and 3.5.2016 has been mentioned in para 2 of the I.A.No.4,,
for submitting its claim to the Executive Engineer and the Superintending Engineer respectively.,,
Apart from this, no completion certificate has been issued by the respondents for the agreemented work. Opposite it, the respondents have specifically",,
stated that the work still has not been completed by the petitioner and completion certificate has not been issued by them. Under the aforesaid,,
circumstances, it appears that the cause of action for the petitioner to submit its additional claims has not arisen after filing of the reference petition.",,
All the claims which were left by the petitioner before filing the reference petition are being sought to be introduced in the reference petition by way,,
of amendment. The procedure is contained under Section 7-B of Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 to file the reference",,
petition before the Tribunal in which specific limitation has also been provided. It would be pertinent to mention here that after filing the reference,,
petition on 13.2.2015, the petitioner filed also the rejoinder running five pages on 23.3.2016 and the same was allowed vide order dt.4.5.2016. The",,
petitioner has not explained any reason as to why the alleged aforesaid claims were not included in the rejoinder. The circumstances also indicate that,,
the proposed amendment are malafide. Besides it, the cause of action has also been changed by the petitioner by introducing the new claims vide",,
I.A.No.4 and the proposed facts for amendment are not based on the subsequent events. Therefore, the proposed facts for amendment are not",,
permissible under order VI Rule 17 of CPC.â€,,
(8) The question which arises for consideration is whether the Tribunal was justified in dismissing the application for amendment seeking,,
incorporation of the final claims.Â,,
(9) Evident it is from the record it is petitioner's own case that, the work was completed on 31.3.2014.",,
(10) Sub section (1) of section 7-A of Madhyastham Adhikaran Adhiniyam, 1983 mandates that every reference petition shall include whole of",,
the claim which the party is entitled to make in respect of the works-contract till the filing  of the reference petition but no claims arising,,
out  of any other works-contract shall be joined in such a reference petition. Thus incumbent it is upon the party filing a reference to,,
include whole of the claim which the party is entitled to make  in respect of work contract.,,
(11) In the case at hand as the work having been completed on 31.3.2014 and dispute having arisen as regard to certain claims the petitioner,,
preferred a petition before the Arbitration Tribunal; incumbent it was upon the petitioner to have explained as to what prevented himÂ,,
from not laying the final claim before the authority after the completion of work on 31.3.2014.Â,,
(12) Section 7-B  of Madhyastham Adhikaran Adhiniyam, 1983 further mandates that Tribunal shall not admit a reference petitionÂ",,
unless the dispute is first referred for  the decision of the final authority under the terms of the works contract; and the petition to,,
the Tribunal is made within one year from the date of communication of the decision of the final authority. In the case at hand, there is",,
no explanation tendered by the petitioner as to why the final claim was not submitted by him to the authority concerned on completion of,,
work on 31.3.2014.,,
(13) Dwelling upon the nuances of Section 7-B, a Division Bench of this Court in M/s Sermen (India) Road Makers Pvt. Ltd. Vs. State of M.P. &",,
Others, 2005 (3) MPHT 292 was pleased to hold :",,
“13. Once, we have held that the limitation is not applicable and the cause of action does not arise from the date of completion of the work, the",,
short and straight forward question that emerges for consideration is what should be the date of commencement of cause of action for the purpose of,,
determination of approaching the final authority and what should be the period of duration requires to be spelt out. Be it noted, the present Act is not a",,
beneficial legislation. In the matters relating to industrial disputes, though there is no limitation, in has been held that if the claim has become stale and",,
no effort has been made to keep the dispute propelled and make it alive, it would not warrant adjudication on the ground of delay and laches. In our",,
considered view because no limitation has been provided in a dispute of this nature, it would be an anathema to concept of justice to say that a",,
contractor can approach the Final Authority at his pleasure and leisure. The doctrine of delay and laches has to be allowed to have full play. Delay in,,
approaching a legal forum mars the claim. He, who enters into the state of hibernation, can not wake up one fine morning to put forth a claim. In",,
commercial transaction or dispute relating to works contract the contractors can not sleep like Reap Van Winkle to find a new world, a fresh one",,
where the cause of action would arise in their favour. At this stage, we think it condign to refer to the decision rendered in the case of Major (Retd.)",,
Inder Singh Rekhi v. Delhi Development Authority, AIR 1988 SC 1007. In the aforesaid case, a two Judge Bench of the Apex Court has expressed",,
the view, and application under Section 8 or 20 of the Arbitration Act, 1940 is to be preferred within a period of three years from the date claimant",,
asserted the claim and the payment was denied. A difference of dispute was regarded as a condition precedent. To quote Their Lordships :,,
In order to be entitled to order of reference under Section 20, it is necessary that there should be an arbitration agreement and secondly, difference",,
must arise to which this agreement applied. In this case, there is no dispute that there was an arbitration agreement. There has been an assertion of",,
claim by the appellant and silence as well as refusal in respect of the same by respondent. Therefore, a dispute has arisen regarding non-payment of",,
the alleged dues of the appellant. But in order to be entitled to ask for a reference under Section 20 of the Act there must not only be an entitlement to,,
money but there must be a difference or a dispute must arise. It is true that on completion of the work a right to get payment would normally arise but,,
where the final bills as in this case have not been prepared as appears from the record and when the assertion of the claim was made on 28th,,
February, 1983 and there was non- payment, the cause of action arose from that date, that is to say, 28th of February, 1983. It is also true that a party",,
can not postpone the accrual of cause of action by writing reminders or sending reminders but where the bill had not been finally prepared, the claim",,
made by a claimant is the accrual of the cause of action. A dispute arises where there is a claim and a denial and repudiation of the claim. The,,
existence of dispute is essential for appointment of an arbitrator under Section 8 or a reference under Section 20 of the Act.""",,
In this context, we may also refer with profitto the decision rendered in the case of State of Orissa and Anr. v. Sri Damodar Das, AIR 1996 SC",,
In the aforesaid case, in Paragraphs 5 and 6, Their Lordships expressed the view as under :--",,
Russel on Arbitration by Anthony Walton (19th Edition) at pages 4-5 state that the period of limitation for commencing an arbitration runs from the",,
date on which the ""cause of arbitration"" accrued, that is to say, from the date when the claimant first acquired either a right of action or a right to",,
require that an arbitration take place upon the dispute concerned. The period of limitation for the commencement of an arbitration runs from the date,,
on which, had there been no arbitration clause, the cause of action would have accrued : ""just as in the case of action the claim is not to be brought",,
after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not",,
to be put forward after the expiration of the specified number of years from the date when the claim accrued"". Even if the arbitration clause contains",,
a provision that no cause of action shall accrue in respect of any matter agreed to be referred until an award is made time still runs from the normal,,
date when the cause of action would have accrued if there had been no arbitration clause.,,
In Law of Arbitration by Justice Bachawat at page 549 commenting on Section 37, it is stated that subject to the Limitation Act, 1963, every",,
arbitration must be commenced within the prescribed period. Just as in the case of actions the claim is not to be brought after the expiration of a,,
specified number of years from the date when the cause of action accrues, so in the case of arbitrations the claim is not to be put forward after the",,
expiration of a specified number of years from the date when the claim accrues. For the purpose of Section 37(1) 'action' and 'cause of arbitration',,
should be construed as arbitration and cause of arbitration. The cause of arbitration when the claimant becomes entitled to raise the question that is,",,
when the claimant acquires the right to require arbitration. An application under Section 20 is governed by Article 137 of the Schedule of the,,
Limitation Act, 1963 and must be made within 3 years from the date when the right to apply first accrues. There is no right to apply until there is a",,
clear and unequivocal denial of that right by the respondent. It must, therefore, be clear that the claim for arbitration must be raised as soon as the",,
cause for arbitration arises as in the case of cause of action arises in a civil action.""",,
We have referred to the aforesaid two paragraphs only to show that Their Lordships have used two sets of expressions, namely 'action' and",,
'cause of arbitration'. A cause of arbitration may be the date of preparation of the final bill or the date when any dispute has arisen. Definitely it can,,
not be the date of completion of work. Irrefragably, it can not be a period ad infinitum. Ergo the date of accrual of cause of arbitration would be the",,
date and that period has to be fixed and fixation of such period is not be regarded or treated as period fixed under the Limitation Act. We may repeat,,
at the cost of repetition that the Limitation Act does not apply but definitely there has to be a reasonable period within which contractor has to,,
approach the Final Authority. It is noticed in certain statute powers are conferred on the higher authority for the exercise of suo motu power. While,,
conferring of suo motu jurisdiction, no period of limitation has been prescribed, yet it has to be done within a reasonable period of time. The fixation of",,
reasonable period does depend upon the facts of each case for the purpose of exercise of suo motu power. In the present case as the matter relates,,
to works contract and the statute provides an alternative forum and bars the claim it is definitely not a beneficial statute. We are disposed to think a,,
contractor has to approach the final authority within a period of three years from the date of accrual of (cause of) arbitration. We may repeat at the,,
cost of space that the cause of arbitration has no nexus on the completion of work but may have nexus with other factors which may include,,
preparation of final bill. We do not intend to exhaustively state or enumerate the situations. That is for the Tribunal to determine on the appreciation of,,
factual matrix in each case.,,
At this juncture, for the sake ofcompleteness, we think it appropriate to refer to the recent amendment by which Section 7-B has been further",,
amended. The amended provision reads as under :--,,
2-A. Notwithstanding anything contained in Sub-section (1), the Tribunal shall not admit a reference petition unless it is made within three years from",,
the date on which the works contract is terminated, foreclosed, abandoned or comes to an end in any other manner or when a dispute arises during the",,
pendency of the works contract.""",,
We have referred to the same as Mr. Raoand Mr. N. Johri have submitted that sometimes the final bill is settled after five years and, therefore, it",,
should be the date of settlement of the final bill otherwise there would be chaos and that would give rise to injustice. In this submission, we really do",,
not perceive any merit. By way of limitation, period provided is three years from the date on which the work contract is terminated, foreclosed,",,
abandoned comes to an end or when a dispute arises during the pendency of the works contract. We do not intend to dilate on the aforesaid provision,,
as it is not necessary in the case at hand. We have noted it. We have fixed the period of three years for approaching the Final Authority from the date,,
of accrual of cause of arbitration and when a cause of arbitration would arise would be dependent upon various factors in a given case. We hasten to,,
clarify that we have dealt with the un-amended provision and only referred to the amended provision as it was brought to our notice.â€,,
(14) Thus, it is the petitioner who has to blame himself for not seeking finalization of bill immediately on completion of work on 31.3.2014 and",,
since the said claim was available to the petitioner in the year 2015 when he filed the reference petition, the Tribunal was well within its",,
jurisdiction in rejecting the application for incorporating  additional claim on the anvil of limitation.,,
(15) In view whereof, this Court finds no jurisdictional error or illegality in the impugned order as would warrant any indulgence.Â",,
Consequently, petition fails and is dismissed. No costs.",,