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TMI Blog2011 (4) TMI 1476X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunication on 18.05.2006 for an early payment. Thereafter, the petitioner was paid amount on 20.07.2006 after deducting amount in respect of which the Executive Engineer has sought rebate from the petitioner. It is, thereafter, vide communication dated 16.08.2007, the petitioner has sought resolution of the disputes by an Arbitrator in terms of the contract Agreement. 3. In information sought under the Right to Information Act, 2005, the petitioner was informed that the Arbitrator is not being appointed since the claim of the petitioner is time barred. Subsequently, the petitioner filed an application before the learned District Judge, Sirsa for appointment of an Arbitrator. Such petition was dismissed on 10.08.2009 for the reason that the application for filing of arbitration is beyond the period of limitation, which is 180 days from the date of making of final payment. It is, thereafter, the petitioner after withdrawing the revision petition filed against the order passed by the learned District Judge, with liberty to move an appropriate application before the Hon'ble Chief Justice, filed the present petition before this Court. 4. Learned counsel for the petitioner has veh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice sent to him, that this final bill is ready for payment and his decision shall be final and binding and where the matter involves a claim for the payment or recovery or deduction of money, only the amount if any awarded in such arbitration shall, be recoverable in respect of the matter so referred." "If the matter is not referred to arbitration within the specified period all the rights and claims under the contract shall be deemed to have been forfeited and absolutely barred." "6. I have heard learned counsel for the parties and find that the right of the petitioner to claim adjudication of the disputes arising out of a contract cannot be restricted after the amendment in Section 28 of the Act vide indian parliament act no.1 of 1997, notified on 08.01.2007. Section 28 of the Act has been amended in pursuance of the 97th Report of the Law Commission of India. The Law Commission has noticed that Section 28 of the Act as per the existing case law is in form of two prepositions:" "(a) The parties to an agreement are not allowed to substitute their own periods of limitation in place of the period laid in the general law of limitation." " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (a). After amendment, Section 28 reads as under: "28. Agreements in restrain of legal proceedings void - Every agreement - "(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, or" "(b) which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent." In terms of such amendment, Clause (a) deals with remedy, whereas Clause (b) deals with right and the anomalous situation observed by the Law Commission was, thus, sought to be remedied. 7. The above said provisions of Law have been considered by the Delhi High Court in Hindustan Construction Corporation Vs. Delhi Development Authority, 1999 (1) Arb. LR 272 and J.K. Anand Vs. Delhi Development Authority and another, 2001 (2) Arb. LR 663. In the said cases, amended Section 28 was applied to the contracts, whereby the period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Though it is clear that by the indian contract (amendment) act, 1997, the original section 28 has been replaced by a new paragraph in which such extinction of right unless exercised within a specified period of time, if not beyond the period of limitation, is also rendered void. As observed earlier, in the absence of any specific reference in the amended Act, it is prospective in nature and the same cannot affect the contract made earlier. However, the law as if no stands after this amendment not only the curtailment of limitation period is impermissible, but also the extinction of right, if sought to be brought by the agreement within a specified period, which period is less than the period of limitation prescribed for the suit under the contract in question is also rendered void. In view of our conclusion, as stated earlier, it is unnecessary to consider the contention regarding failure to plead etc." In terms of the said judgment, the amended Section 28 would be applicable to the facts of the present case and the extinguishment of right contemplated by Clause 25-A of the Agreement cannot be given effect to in terms of Section 28 of the Act as amended by indian parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledonian Press, AIR 1954 Cal. 484, Chakravartti, C.J., neatly brings out the purpose and scope of such Acts. The learned Chief Justice says at p. 486: "Such Acts have no Legislative effect, but are designed for editorial revision, being intended only to excise dead matter from the statute book and to reduce its volume. Mostly, they expurgate amending Acts, because having imparted the amendments to the main Acts, those Acts have served their purpose and have no further reason for their existence. At times, inconsistencies are also removed by repealing and amending Acts. The only object of such Acts, which in England are called Statute Law Revision Acts, is legislative spring-cleaning and they are not intended to make any change in the law. Even so, they are guarded by saving clauses drawn with elaborate care,…." "It is, therefore, clear that the main object of the 1952 Act was only to strike out the unnecessary Acts and excise dead matter from the statute book in order to lighten the burden of ever increasing spate of legislation and to remove confusion from the public mind. The object of the Repealing and amending act of 1952 was only to expurgate the amendi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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