State Of Punjab vs Sh. Nand Kishore Jain on 8 October, 2003

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Punjab-Haryana High Court
State Of Punjab vs Sh. Nand Kishore Jain on 8 October, 2003
Equivalent citations: 2004 (1) ARBLR 275 P H, (2004) 136 PLR 283
Author: V Bali
Bench: V Bali

JUDGMENT

V.K. Bali, J.

1. By this order, I propose to dispose of Regular First Appeal No. 1696 of 1979 filed by the State of Punjab as also Cross objection No. 229-Cl of 1979 in RFA No. 1696 of 1979 filed by the plaintiff-respondent in the main appeal as, both the appeal and the cross objections emanate from a common judgment and decree dated 12.4.1979 passed by Shri 0,P, Dharwal, Sub Judge, 1st Class, Patiala.

2. Brief facts giving rise to the appeal as also cross objections in the context of the only point of limitation that is involved in this appeal reveal that Nand Kishore Jain (hereinafter referred to as the plaintiff) filed suit for recovery of Rs. 67,437.58 paise (Rs,37,912.58ps. as principal and Rs. 29,525.00 as interest) for the execution of work of consolidation and surface painting of Bhupinder Sagar Muran Road, Miles 1 to 12-1/2. His tender for the above said work was accepted by the Superintending Engineer, Roads Circle, Patiala, at the rate of Rs. 4/- above Pepsu Current Schedule of Rates. The plain-tiff was intimated about the acceptance of his tender at the above said rate vide letter dated 5.1.1956 and formal agreement in this behalf was executed between the parties on 2.10.1957. Suit for recovery emanates from difference of claim made by the plaintiff which as per the defendant was in excess of the one due as per the terms of the agreement. On the pleadings of the parties, learned Trial Court framed the following 7 is-sues:-

“1. Whether the plaintiff competed the work in accordance with the agreement? OPD.

2. To what amount, if any is he entitled? OPD.

3. Whether the plaintiff is entitled to get interest if so at what rate and to what amount? OPD.

4. Whether item No. 1 mentioned in para No. 6 of the plaint was included in rate of soling? So what is its effect? OPD

5. Whether the notice served on the defendant is valid? OPD

6. Whether the suit is within time? OPD.

7. Relief.

3. Pleadings reflected in the written statement would show that the claim of the plaintiff was contested but at this stage, it is only issue No. 6 on which arguments have been advanced by counsel for the appellant-State.

4. Relevant facts for determining issue No. 6 reveal that before filing the suit, giving rise to the present appeal the plaintiff had sought arbitration and reference for arbitration was made on 22.3.1958 resulting into an award dated 7.11.1962 for an amount of Rs. 5867.57 ps. When the award was sought to be made as rule of the Court, the plaintiff filed objections as according to him, the Arbitrator had awarded wholly inadequate amount. The objections prevailed with the concerned Court and the award was set aside on 26.2.1964. Aggrieved the State filed an appeal which was dismissed by this Court on 18.4.1969. Concedly, if the period from the date of arbitration proceedings commenced till such time the judgment was passed by this Court on 18.4.1969 is excluded the suit shall be within limitation but if such period is included, the suit would be beyond the period of limitation.

5. I have heard learned counsel re presentating the parties and gone through the record of the case. In considered view of this Court, Sub-section 5 of Section 37 of the Arbitration Act, 1940 covers the field and by virtue of the language employed therein the period as referred to above has to be excluded in computing the period of limitation. Sub-section 5 of Section 37 of the Arbitration Act, 1940 reads thus;-

“37(5) Where the Court orders that an award be set aside or orders, after the commencement of an arbitration, that the arbitration agreement shall cease to have effect with respect to the difference referred, the period between commencement of the arbitration and the date of order of the Court shall be excluded in computing the time prescribed by the Indian Limitation Act, 1908 (9 of 1908), for the commencement of the proceedings (including arbitration) with respect to the difference referred.”

6. The language of Sub-section 5 of Section 37 of the Arbitration Act, 1940 is explicit and clearly enjoins exclusion of period after commencement of arbitration proceedings till such time as award is set aside or for that matter, the arbitration agreement ceases to have effect with respect to the difference referred to the Arbitration. The appeal, in considered view of this Court, is a continuation of the original lis and if the period between the commencement of arbitration proceedings and the award has to be excluded, surely, the period that is taken in the appeal has also to be excluded. Hon’ble Single Bench of Rajasthan High Court in case Babulal and Anr. v. Ramswarup,’ A.I.R. 1960 Rajasthan 240 has held that word ‘court’ in Section 37(5) includes the appellate and revisional court and the plaintiff is entitled to the exclusion of the period taken by him in filing appeal or revision against the order of the court setting aside the award.

7. The only point raised in the present appeal filed by the State of Punjab in view of
the discussion made above, appears to have no substance and therefore the appeal is
dismissed. Nothing substantial has been argued in support of the cross objections as
well. Finding no merit in the cross objections the same are also dismissed. The parties
are however, left to bear their own costs.

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