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Judgment
This application has been filed by the applicant under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (for short "Act, 1996") seeking appointment of an arbitrator to settle the dispute between the parties.
The brief facts of the case, shorn of the details are that the applicant is a Railway Contractor and in the course of his business he entered into a contract with the respondent-West Central Railway in the year 2002-2003 and after completion of the work by the applicant he submitted the final bill to the tune of Rs.24,40,684/- on 11.12.2010 for the first phase of the work. The aforesaid bill was also approved by the respondent but the amount was not paid to the applicant, and the respondents vide letter dated 19.6.2017 informed the applicant that his bills are ready for payment and that the documents pertaining to the final bill and the measurement books are kept in the office of the respondents since last three years for his signature but as he has not signed the same, the remaining amount cannot be paid to him. Thus the applicant was directed to appear before the respondents within 15 days time, failing which, he was also informed that ex-parte decision shall be taken against him.
According to the applicant, prior to that, on 8.9.2011 in the investigation for payment of 11th & final bill No.STA/10-11/148 dated 11.12.10 of the applicant it was inter-alia concluded by the respondents that huge amount of the bill is claimed by the applicant.
Learned counsel for the applicant has submitted that in the above mentioned facts and circumstances of the case an arbitrator is required to be appointed to settle the dispute between the parties.
On the other hand, Shri Atul Choudhary, learned counsel for the respondents has vehemently opposed the prayer of the applicant and has submitted that no case for appointment of an arbitrator is made out looking to the fact that the agreement was executed between the parties in the year 2003 and despite the fact that the applicant submitted his bills long back, no dispute was ever raised by him to be adjudicated upon by the arbitrator. It is further submitted that the application in itself is barred by limitation and in the light of the decision in the case of United India Insurance Co. Ltd. Vs. Antique Art Exports Pvt. Ltd. of the Hon'ble Apex Court, reported as AIR 2019 SC 3137 a stale claim cannot be referred to the Arbitrator for adjudication. Learned counsel for the respondents has also referred to the decision rendered by the Coordinate Bench of this Court in the case of M/s Uttarakhand Purv Sainik Kalyan Nigam Limited Vs. Northern Coal Field Limited, decided on 11.1.2018 (AC No.56/2016) wherein Hon'ble Shri Justice Hemant Gupta, as his Lordship then was, has gone into the question of limitation and has held that the claim of the applicant being barred by limitation cannot be entertained and no arbitrator can be appointed under Section 11(6) of the AC Act, 1996.
Heard the learned counsel for the parties and perused the record.
From the record this Court finds that present arbitration application under Section 11(6) of AC Act, 1996 was filed by the applicant on 14.8.2017 whereas in the letter dated 19.6.2017 the respondents directed the applicant to mark his presence in their office for the purpose of his signature on the documents for settlement of his bills. The said letter reads as under:-
"पष्चिम मध्य रेल
मंडल रेल प्रबंधक (कार्य) कार्यालय
जबलपुर
पत्र क्र. C.A. NO. JBP/W/R/139//4Misc/STA/414 Dated 19-03-2003.
दिनांक 19-06-2017
श्री पुष्पराज सिंह( रेलवे ठेकेदार)
शास्त्री नगर, मानिकपुर
जिला चित्रकूट( उ.प्र.)
विषय:- 1. Carrying out 4 misc. works under ADEN/STA sub division.
C.A. NO. JBP/W/R/139//4Misc/STA/414 Dated 19-03-2003.
Carrying out 3 misc. works under ADEN/STA sub division. C.A. NO. JBP/W/R/103/300mm/TW/STA-REWA/MKP/48 Dated 12-07-2002. A
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उपरोक्त संदर्भ में आपको सूचित किया जाता है कि उपरोक्त दोनों कार्यों के अंतिम बिल, माप पुस्तिका एवं final variation पिछले तीन वर्षों से इस कार्यालय मे आपके हस्ताक्षर हेतु रखे हैं। आपके द्वारा हस्ताक्षर न किये जाने के कारण, उपरोक्त दोनों कार्यों का शेष भुगतान आपको नहीं हो पा रहा है। पूर्व में यही दस्तावेज सहायक मण्डल अभियंता सतना कार्यालय में बनाकर आपके हस्ताक्षर हेतु रखे थे, लेकिन आपके द्वारा हस्ताक्षर नहीं किये गये।
इस कार्यालय मं आपके साथ विगत वर्षों में संबंधित वरिष्ठ मण्डल अभियंता (उत्तर) के साथ कई बार मुलाकात होने एवं आपके द्वारा उठाई गयी आपत्तियों का रेल्वे नियमानुसार आपको निराकरण समझाने के बावजूद आपके द्वIरा संबंधित दस्तावेजों में हस्ताक्षर नहीं किये गये।
कृपया 15 दिन के अंदर इस कार्यालय में उपस्थित होकर संबंधित दस्तावेजों में हस्ताक्षर करें, इस कार्यालय द्वारा भुगतान प्रक्रिया पूर्ण कर आपका भुगतान किया जा सके। यदि आप 15 दिन के अंदर इस कार्यालय में उपस्थित होकर संबंधित दस्तावेजों में हस्ताक्षर नहीं करते तो एकपक्षीय निर्णय लेकर आपके भुगतान प्रक्रिया पूर्ण की जायेगी।
वरि. मंडल अभियंता (उत्तर) जबलपुर"
A bare perusal of the aforesaid letter clearly reveals that till 19.06.2017 the dispute between the parties was very much alive. This letter also demonstrates that it is not a letter of denial, written out of any compulsion but in fact it is an admission of unfinished business between the parties.
Thus, it cannot be said that the claim of the petitioner to have an arbitrator appointed for the settlement of his dispute is a stale or a dead one incapable of being adjudicated upon. In view of the aforesaid factual position, the judgments cited by Shri Choudhary are of no avail to him and are clearly distinguishable on facts.
As a result, the application stands allowed and Shri K.K.Trivedi, retired High Court Judge, Block No.3, Vasundhara Vihar near St. Thomas School, South Civil Lines, Jabalpur is appointed as provisional arbitrator to resolve the dispute between the parties. The Registry of this Court shall seek consent/ declaration from the learned provisional arbitrator as per sub Section (8) of Section 11 of the Arbitration and Conciliation Act, 1996 and place the matter before this Court on next date of hearing.
List the case on 2.12.2019.