JUDGMENT
V.B. Bansal, J.
1. This order will dispose of Civil Misc. (Main) 147/93, Jai Krishan Pruthi v. D. S. Punia and others as also Civil Miss. (Main) 151/93 Jai Krishan Pruthi v. D. S. Punia, since they arise out of the same judgment dated 12th March, 1993 of Shri Dilbagh Singh Punia, Sub-Judge, Delhi and thus, can be disposed of together.
2. The learned Sub-Judge has, vide impugned judgment, dismissed applications under Section 33 and Section 5 of the Indian Arbitration Act read with Section 151 C.P.C. as maintainable and holding that the Union of India was competent to appoint an arbitrator and the arbitration agreement was very much in existence.
3. Briefly stated, the facts leading to the filing of these petitions are that Jai Krishan Pruthi entered into an agreement for the supply of “Meat dressed including edible offals” and “eggs” during the period 1973-74. After the settlement was arrived at, an agreement was reduced into writing, in which, clause 21(A) was added, making provisions for making reference to the arbitration in respect of the disputes, which may arise between the parties. The dispute arose during the period of making the supply and so, a petition under Section 20 along with an application under Section 41 of the Arbitration Act (hereinafter referred to as “the Act”) was filed in the court. The Union of India filed reply giving information with regard to the appointment of arbitrator to adjudicate the disputes on account of which the application filed under Section 20 of the Act was disposed of as having become infructuous while interim relief was granted while disposing of the application under Section 41 of the Act. Brig. C. A. Quinn appointed as arbitrator by Quarter Master General, Army Headquarter, New Delhi made an award in favor of the Union of India, which was ultimately set aside by the court of Shri J. K. Pali, holding that the arbitrator had gone beyond the scope of reference.
4. Quarter Master General, thereafter appointed Brig. A. S. Sumra as an arbitrator under Clause 21(C) of the contract vide letter dated 8th April, 1987, in which the arbitrator was also required to adjudicate as to whether the claim of the Union of India was barred by limitation and if not to consider the same. Application under Section 28 of the Act was moved by the Union of India in the court of Shri Om Prakash, Sub-Judge 1st Class, Delhi for extension of time for making of the award. However, in those proceedings, an application under Section 33 of the Act red with Section 151 CPC was moved by Jai Krishan Pruthi with a prayer that the arbitrator may be changed and a prayer was made to determine the scope reference of the dispute pending before the arbitrator. While extending the time, a direction was issued by the learned Sub-Judge that the arbitrator was to decide only the claim of the contractor and that another arbitrator may be appointed by the competent authority. Accordingly, Brig. (Retd.) S. P. Talwar was appointed as the sole arbitrator to adjudicate the claim of the petitioner/contractor. Award dated 16.2.1991 was made by Brig. S. P. Talwar regarding which, separate proceedings for making the said award rule of the court are pending in the court.
5. On the application of the Union of India, Quarter Master General, Army, Headquarter, New Delhi made an order dated 16.3.1990 to the effect that under the provisions of Clause 21(A) of the agreement, Brig. Shively Bal Gopal was appointed as arbitrator to adjudicate the claims of Union of India only arising out of the disputes in the contract for the supply of Meat dressed including edible offals and eggs fresh at Bombay during the period 1973-74 operated by Shri Jai Krishan Pruthi. In pursuance of this order regarding the appointment of Brig. B. G. Shively as arbitrator, the Union of India filed claim against the petitioner. Reply of the said claim was not filed by the petitioner, who has moved an application under Section 33 and Section 5 of the Act. It was inter alia pleaded that the dispute between the parties included the claim of the contractor as also the Union of India and that the Union of India could not make such a claim, now, after a period of 17 years, which is beyond the period of limitation, This application was opposed by the Union of India claiming that the question of limitation has to be decided by the arbitrator and that there was nothing wrong in the order for the appointment of the arbitrator to adjudicate upon the claim of the Union of India.
6. Following issues were framed :
(i) Whether the Arbitration Agreement between the parties has not been exhausted or cased to exist. The onus on the parties ?
(ii) Whether the appointment of respondent No. 2 respondent No. 3 is proper ?
(iii) Whether this court has no territorial jurisdiction to try the present petition ?
7. The objection with regard to the territorial jurisdiction of the courts at Delhi was not pressed and other issues were decided holding that the arbitration agreement had not been exhausted and the appointment of the arbitrator was proper. The application was held to be not maintainable and so was dismissed.
8. I have heard Shri Ravinder Sethi, learned Counsel for the petitioner and have also perused the file.
9. Learned Counsel for the petitioner has submitted that it was the petitioner who was aggrieved from the actions of the Union of India on account of which he got arbitrator appointed to adjudicate upon his claim. He has further submitted that in the arbitration clause in the agreement it has specifically been provided that any dispute could be referred to the arbitrator within six months from the date of termination of the contract and the Union of India cannot now claim a reference to the arbitrator beyond the limitation. He has also submitted that while dismissing the application, the learned Lower Court has committed material irregularity in not deciding the question with regard to the limitation and the objection that the arbitration clause stands exhausted. It would, at this stage, be relevant to quote Clause 21(A) of the contract entered into between the petitioner and Union of India, which reads :
(a) “Any dispute or difference arising in the interpretation or application of provisions of contract settlement of which is not herein-before provided for shall be referred to the sole arbitration of the officer sanctioning the contract or his successors in the office or of any person nominated by the Q.M.G. Army H.Q.
(b) The award shall be final and binding on the parties.
(c) In the event of arbitrator to whom the matter is referred being transferred or vacating his office or being unable to act for any reason. The A.G.M. Army H.Q. at or subsequent to the time of such transafer, vacation of office or inability to act, shall appoint another person successively, if necessary to act as arbitrator in accordance with the terms of their contract. Such persons will be entitled to proceed with the case under arbitration from the stage at which it was left by his predecessor(s).
(d) A demand for arbitration shall be in writing and made within six months from the date of termination of the contract shall mean and include.
(i) The last date of delivery of goods according to the terms of contract.
(ii) In case where the contract is cancelled wholly or partly, the date when the letter of cancellation is issued.
(e) Subject as aforesaid the arbitration Act, 1940 or any statutory modification or enactment thereof for time being inforce or rules made hereunder shall apply to the arbitration proceedings under this clause.
10. A perusal of the file shows that the Union of India wanted this claim to be adjudicated upon simultaneously with the claim of the petitioner by the arbitrator. The first arbitrator had adjudicated upon the claim of the Union of India also which was set aside and subsequently there was a specific direction to the arbitrator not to go into the claim of Union of India inspite of the fact that the same was asked to be adjudicated upon by the Quarter Master General. In these circumstances, the question for consideration is as to whether the agreement had stood exhausted on account of the petitioner having already got his claim referred to the arbitrator and the award having already been made in respect of the claim of the petitioner. It is not disputed that the limitation for the Union of India is 30 years. The submission of the learned Counsel for the petitioner has been that it is open to the Union of India to file suit for the recovery of the amount, which they may claim, but the provisions of the Arbitration Act are not available as the agreement already stands exhausted. This submission cannot be accepted. Jai Chand Bhasin v. Union of India and another , is a clear authority of a Division Bench of this court. It has clearly been held in this case that the question whether the claim was barred has to be decided by the arbitrator and not by the court. In the instant case, it cannot be disputed that the agreement was entered into between the petitioner and Union of India in which Clause 21(A) made provision for referring the dispute to arbitrator. The objection with regard to the limitation will be decided by the arbitrator.
11. Another submission of the learned Counsel for the petitioner has been that after the appointment of the arbitrator to adjudicate upon the claim of the petitioner, the agreement stood exhausted and no second arbitrator can be appointed. The case Shah Construction Co. Ltd., Bombay v. Delhi Municipal Corporation , of a Division Bench of this court is a complete answer to this objection wherein it has been provided that the appointment of an arbitrator to adjudicate the claim of the Municipal Corporation of Delhi would not be barred by the principle of res-judicata on account of the same having not been included in the earlier reference at the instance of the contractor. In the instant case, the Union of India, in fact, wanted its claim to be adjudicated upon by the arbitrator, adjudicating upon the claim of the petitioner which was, however, not done and in these circumstances, it cannot be said that the Union of India is without the remedy of getting the dispute decided from the arbitrator.
12. Considering all these facts, I am clearly of the view that there is no illegality or irregularity committed by the Trial Court in passing the impugned order. There is also no jurisdictional error in the impugned order. In these circumstances, the petitions stand dismissed.
13. Petitions dismissed.