ORDER
M.Y. Eqbal, J.
1. This application has been filed under Section 11 of the Arbitration and Conciliation Act making a prayer for appointment of independent arbitrator for reference of dispute for adjudication.
2. The petitioner’s case is that he was awarded a contract by the Zila Parishad, Singhbhum West being agreement No. F2-15 of 1985-86 for construction of canteen, press and shops at Zila Parishad Campus. As per the agreement the date of the commencement of the work was 19.8.1985 and the date of completion was 19.8.1986. The petitioner said to have completed the work by 15.4.1987 and handed over the same to the respondents. It is stated that in course of execution of work payments were made to the petitioner through accounts bill from time to time after the work done by the petitioner was measured by Engineer Incharge and Measurements were entered in M.B. No. 452 and 526. It is stated that till completion of the work under the agreement, the petitioner was paid a sum of Rs. 14,14,254.50 but after the final measurement of the work done by the petitioner, further dues have not been paid. The petitioner, thereafter, had been requesting the Zila Parishad and all concerned of the Department for finalisation of the work by making payment of his legitimate dues but nothing was done.
instead a sum of Rs. 70,189/- was deducted by the respondents towards security deposit. The petitioner’s case is that on account of non-payment of the dues a dispute has arisen and the same is still subsisting as the contract has neither been terminated nor there has been final settlement of the account. The petitioner accordingly gave notice through his lawyer on 18.1.1999 invoking the arbitration clause and thereafter the instant application has been filed.
3. A counter affidavit has been filed by the respondents stating, inter alia, that the claim is hopelessly barred by limitation inasmuch as the work was executed in 1989 and this application has been filed in 1999. It is stated that after completion of the work, the bill was finally prepared and payment had been made in 1992. The respondents’ further case is that the final measurement was recorded on 18.12.1992 in the measurement book which was acknowledged as correct by the petitioner, by putting his signature. Accordingly, as per measurement, payments have been made.
4. I have heard Mr. R.S. Mazumdar, learned counsel for the petitioner and Mrs. Ritu Kumar, learned counsel for the respondents.
5. After hearing the learned counsel appearing for the parties, the only question that falls for consideration is whether the instant application filed by the petitioner is barred by limitation. It is well settled that reference of dispute to arbitration must be sought within three years from the date when the cause of action arose. In the light of settled principles of law, I shall now see the pleadings of the petitioner to find out as to whether he was invoked the arbitration clause within three years from the date when the cause of action arose. Admittedly, the agreement was entered into in 1985 and under the said agreement the date of commencement and the date of completion of the work was 19.8.1985 and 19.8.1986, respectively. It is the case of the petitioner that the work was com-
pleted and the building with all fittings was handed over on 15.4.1987. The petitioner’s further case is that in course of execution of the work payments were made through account bill from time to time and after completion of the work, the petitioner was paid a total sum of Rs. 14,14,254.50. For better appreciation paragraphs 6, 7 and 8 of the application are reproduced hereinbelow :–
“6. That the petitioner states that the petitioner has completed the entire work as stated above by 15.4.1987 and me building with alf fittings as directed by the Engineers in charge of the work was handed over on 15.4.1987. Thereafter the aforesaid newly constructed building was inaugurated by the then Chief Minister of Bihar.
“7. That the petitioner states that in course of execution of the work, payments were made to my client through on account bills from time to time, afler the work done by him were measured by Engineer-in-charge and the measurement were entered into M.B. No. 452 and 526, which were maintained in connection with the works under the agreement.
“8. That the petitioner states that till completion of the work under the agreement, the petitioner was paid a total sum of Rs. 14,14,254.50 paise only through 8th on account bill and after completion of the work even though it was expedient in fact as also in law to make payment, after taking final measurement of the work done by him, of his dues including releasing his security deducted from his own accounts bills but that has not been done by the Zila Parishad and that remains undone still now.”
6. In paragraph 9 of the application, the petitioner has stated that since thereafter the petitioner had been requesting Zila Parishad and all concerned of the said Department for making payment of his legitimate due but nothing was done by the respondents. It is, therefore, evident that the cause of action for taking legal step for recovery of the dues arose in 1987 itself but the petitioner did not take any step. However, it is stated that in 1993 the respondents gave assurance that claim of the petitioner will be settled and the dispute will be resolved through arbitration but despite
repeated reminder no action has been taken. Even if the statement of the petitioner is accepted as correct that in 1993, the respondents assured the petitioner that the claim shall be settled through arbitration but nothing has been done. Admittedly, thereafter the petitioner did not take any action for recovery of the dues either by invoking the arbitration clause or moving the Court of law. It was only after expiry of about 6 years, the petitioner gave a notice in 1999 for appointment of arbitrator and then filed the instant application. From the own case of the petitioner as pleaded in the application, I am of the considered opinion that the alleged claim of the petitioner as also the instant application is hopelessly barred by limitation.
7. In the case of Steel Authority of India Ltd. v. J.C. Budharaja, reported in 1994 (4) SCC 122, the Apex Court after considering its earlier decision vis-a-vis, the provisions of Article 137 of the Limitation Act, held that the action must be brought within three years from the date when cause of action to recover the amount arose.
8. In the case of Rajbir Singh v. Union of India, reported in AIR 1999 Delhi 65, a question arose as to whether the application of the petitioner filed under Section 11(6) of the said Act is barred by limitation. In that case it was alleged that in 1990 when the amount was paid on the basis of bill, certain amount allegedly due to the petitioner, were not released. After six years, i.e. in 1996 the petitioner raised a demand and invoked the arbitration clause by filing application. Their Lordships observed that when the accounts were finalised and certain amount allegedly due were not released, the petitioner could have raised a dispute for the said dues and could have seek the dispute to refer to an arbitrator in terms of the arbitration agreement. That having not been done the petitioner cannot after a lapse of more than 8 years file this application for reference of the said dispute to an arbitrators
as the same is clearly barred under Article 137 of the Limitation Act.
9. As noticed above, in the instant case the work was completed in 1997 and admittedly the petitioner was paid a sum of Rs. 14,14,254.50. The petitioner, thereafter, had been requesting the respondents to make payment of his legitimate dues. It was only after a lapse of 12 years the petitioner sought to invoke the arbitration clause. Even assuming that the cause of action subsisted upto 1993, the petitioner sought to raise the dispute after expiry of six years. I am, therefore, of the view that the claim of the petitioner and the instant application is hopelessly barred by limitation.
10. For the reason aforesaid, no relief can be granted to the petitioner. This application is dismissed.
11. Application dismissed.
