JUDGMENT
Anil Dev Singh, J.
(1) This is an application under section 20 of the Arbitration Act. In the year 1985 respondent No. 2 for and on behalf of respondent No. 1 floated tenders for replacement of package type A.C. Unit in instrumental Building Crow and Parachute building at Hind an Air Field, Ghaziabad. The petitioner in response to the tender notice submitted its tender which was accepted by respondent No. 2 by his letter dated May 30,1985 (Ext. P-l). A formal agreement was executed by and between the parties. After the execution of the work final bill was prepared and payment was made thereunder to the petitioner. Upon receipt of the payment of the final Bill the petitioner wrote to the respondents that a sum of Rs. 1,88,550.02 still remains to be paid to it by respondents I and 2. It appears that the petitioner wrote to the respondents I and 2 stating that it had appointed Mr. S.M. Pande on its behalf to act as an Arbitrator and requested the respondents to appoint their Arbitrator. Mr. Pande, however, declined to continue as an Arbitrator. Thereupon, the petitioner by its letter dated Marcn9,1988 (Ext. P-5) nominated Mr. A.R. Ramanathan as the Arbitrator. By the same letter the petitioner called upon respondents I and 2 to nominate their Arbitrator. The respondents reacting to the letter of the petitioner dated March 9,1988 pointed put in their letter dated April 6,1988 (Ex.P-3) that the Chief Engineer, C.P.W.D., was the authority who could nominate an Arbitrator. After receipt of the aforesaid letter the petitioner by its letter dated April 29, 1988 (Ext. P-5) requested the Chief Engineer to appoint an Arbitrator to adjudicate upon the disputes as listed in the annexure thereto (Ext. P-6). By the same letter the petitioner reduced his claim from Rs. 1,88,550.02 to Rs. 1,68,550.02. The respondents in response to the letter of the petitioner dated April 29,1988 informed the petitioner by letter dated May 9,1988 (Ext. P-7) that the procedure for applying for appointment of an Arbitrator has been modified and the petitioner should apply in the prescribed proforma: The petitioner complied with the requirement by letter dated September 26,1988 (Ext. P-8). However, the Chief Engineer, respondent No.. 3, did not make the appointment with the result that the petitioner filed the instant petition under Section 20 of the Arbitration Act.
(2) The respondents in their reply to the petition, inter alia, contended that the petitioner accepted the payment under the final bill and as such it cannot now file this petition under Section 20 of the Arbitration Act. Respondents also took up the plea that the petitioner did not approach the Chief Engineer for appointment of an Arbitrator with in ninety days of the receipt of the intimation regarding preparation of the final bill and as such the0 claims would stand barred and waived.
(3) I have considered the pleas raised by the respondents in their reply. The question whether the petitioner once having received the payment under the final bill would be disentitled from raising the claims is a matter entirely for the Arbitrator to determine. Similarly, the question whether the claims of the petitioner stand waived and barred as the petitioner did not raise the same within ninety days of the receipt of the intimation by it regarding the preparation of the final bill is also a plea which is for the Arbitrator to decide.
(4) At this stage it will be convenient to extract the relevant part of the Clause 25 of the agreement: “It is also term of the contract that if the contractor(s) do/does not make any demand for arbitration in respect of any claim(s) in writing within 90 days of receiving the intimation from the Government that the bill is ready for payment, the claim of the contractors) will be deemed to have been waived and absolutely barred and the Government shall be discharged and released of all liabilities under the contract in respect of these claims”.
(5) As is clear from the above, this clause does not affect the adjudication of the claims by the Arbitrator. The clause nowhere discharges the arbitration agreement. I am supported in this view by the decision of this Court in Gas Authority of India Ltd. v. Spie Capag S.A. and Others, 1993 (4) Delhi Lawyer 192, where a similar question came up for consideration. In this regard it was held as follows : “A.distinction, however, needs to be drawn with regard to a case, where a clause of the contract simply extinguishes the claim on the ground of it having been made beyond the prescribed time limit but not the right to refer the claim to arbitration. The consequence would be that in such a case the matter would require reference to arbitration though the Arbitrator may reject the claim on the ground that the claim does not survive as having been made beyond the stipulated period…..”
(6) In Ved Prakash MittaLv. The Union of India, , a Full Bench of this Court held that the question as to whether the claims would be barred by limitation is a matter which falls within the domain of the Arbitrator to whom the dispute is required to be referred to under the arbitration clause. Again in Jai Chandphasin v. Union of India and Another. , this Court held that whether the demand for arbitration has been made within the stated time and whether the claim should be deemed to have been waived in terms of the clause in the agreement, is essentially a question for the Arbitrator to decide. This view is also supported by the following decisions rendered by this Court : 1.Ram Narain Yadav v .Union of India and Another, . 2. Ahluwalia Contracts (India) Ltd. v. Union of India and Others, .
(7) For the foregoing reasons, the petition succeeds and the respondents are directed to file the arbitration agreement and refer the disputes mentioned in para 14 of the petition to an Arbitrator to be appointed by respondent No. 3 within a period of six weeks from the date of the receipt of this order. It will be open to the respondents to urge before the Arbitrator that as per Clause 25 of the agreement the claim of the petitioner stands barred and waived.