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TMI Blog1995 (12) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 6, 1977 respectively. With regard to the first, he accepted the measurement and payment of the bill without raising any objection. On September 15, 1980, the respondent wrote a letter to the Chief Engineer, Public Health, Orissa alleging that disputes had arisen out of and relating to the aforesaid agreement for the works done and called upon the Chief engineer to nominate an arbitrator who in turn informed the respondent that since there was no arbitration clause in the agreement, the question of reference to arbitrator did not arise. The respondent thereon filed applications under Sections 8 and 20 of the Arbitration Act in the Court of Subordinate Judge, Bhubaneswar for appointment of an arbitrator. By orders dated September 7 and 14, 1981, the Subordinate Judge allowed the application under Section 8 and directed the parties to file the agreement in the court and also to nominate panel of names for appointment as an arbitrator. On revision and appeals having been filed, the High Court, by its order dated February 15, 1982, dismissed the revision and miscellaneous appeals. Different arbitrators came to be appointed by the Court in each case. Thus, these appeals for special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have commenced under Sub-section (3) when one party to the arbitration agreement serves on the other parties thereto a notice requiring the appointment of an arbitrator, or where the arbitration agreement provides that the reference shall be to a person named or designated in the agreement requiring that the difference be submitted to the person so named or designated. Section 3 of the Limitation, 1963 enjoins the court to consider the question of limitation whether it is pleaded or not. Russell on Arbitration by Anthony Walton (19th Edition) at page 4-5 states 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 actions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to issue notice for long time after the contract was executed Arbitration implies to charter out timorous commencement of arbitration availing the arbitral agreement, as soon as difference or dispute has arisen. Delay defeats justice and equity aids promptitude and resultant consequences. Defaulting party should bear the hardship and should not transmit the hardship to the other party, after the claim in the cause of arbitration was allowed to be barred. It was further held that where the arbitration agreement does not really exist or ceased to exist or where the dispute applies outside the scope of arbitration agreement allowing the claim, after considerable lapse of time, would be a harassment to the opposite party. It was accordingly held in that case that since the petitioner slept over his rights for more than 10 years, by his conduct he allowed the arbitration to be barred by limitation and the Court would be justified in relieving the party from arbitration agreement under Sections 5 and 12(2)(b) of the Act. It is seen that the first contract was of year 1967-68 and was executed in 1967 itself. The amount was stated to have been received in September 1967 itself. The no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eer to be final" and any other the words "claim, right, matter or thing, whatsoever in any way arising out of the contract, drawings, specifications, estimates, instructions, orders or these conditions, or otherwise concerning the works or the execution or failure to execute the same, whether arising during the progress of the work or after the completion or the sooner determination thereof of the contract" and contended that this clause is wide enough to encompass within its ambit, any disputes or differences arising in the aforesaid execution of the contract or any question or claim or right arising under the contract during the progress of the work or after the completion or sooner determination thereof for reference to an arbitration. The High Court, therefore, was right in its conclusion that the aforesaid clause gives right to arbitration to the respondent for resolution of the dispute/claims raised by the respondent. In support thereof he relied on Ram Lal Jagan Nath v. Punjab State through Collector, Hissar and Anr. AIR 1966 Punjab 436 . It is further contended that for the decision of the Public Health Engineer to be final, the contractor must be given an opportunity to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that have arisen between the contractor and the Government. But for Clause 25, there is no other contract to refer any dispute or difference to an arbitrator named or otherwise. This Court was called upon to consider similar clause in State of U.P. v. Tipper Chand [1980] 2 SCC 341. The clause was extracted therein. After consideration thereof, this Court held that after perusing the contents of the said clause and hearing learned Counsel for the parties "we find ourselves in complete agreement with the view taken by the High Court. Admittedly, the clause does not contain any express arbitration agreement. Nor can such an agreement be spelt out from its terms by implication, there being no mention in it of any dispute, much less of a reference thereof. On the other hand, the purpose of the clause clearly appears to be to vest the Superintending Engineer with supervision of the execution of the work and administrative control over it from time to time". It would, thereby, be clear that this Court laid down as a rule that the arbitration agreement must expressly or by implication be spelt out that there is an agreement to refer any dispute or difference for an arbitration and the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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