SULTAN SINGH - (1.) ORDER:
(2.) THE petitioner filed this petition on 29th April, 1975 under S. 20 of the ArbitratSion Act which was registered as Suit No. 278-A of 1975 for the filing of arbitration agreement and for appointment of an arbitrator. On 1st April, 1960 the petitioner and the respondent entered into a partnership agreement to carry on business under the name and style of M/s. E D. Gal gotia and Sons. This firm has tow sections (i) Technical Section and (ii) General Section. Technical Section business was carried on the mezzanine floor and the General Section business was carried on the entire ground floor of 17-B Connaught Place, New Delhi. THE partnership business continued up to 31st March, 1972 when the firm was dissolved. As a result of dissolution the respondent took over the Technical Section. Apart from the premises at 17-B Connaught Place, New Delhi, the partnership firm had a branch of Hauz Khas New Delhi and on dissolution the respondent also took over the business of the Branch at Hauz Khas, New Delhi. THE petitioner alleges that the respondent, agreed to reimburse the petitioner to the extent of his share of goodwill in the business at Hauz Khas, New Delhi, that after dissolution the petitioner demanded his share of goodwill but the respondent denied his liability to pay. Under cl. 9 of the Deed of partnership dated 1st April, 1960 it was agreed between the petitioner and the respondent that all disputes amongst the parties in. respect of interpretation of the deed or any other matter whatsoever in connection with the partnership deed would be referred to arbitration. On 28th March, 1975 the petitioner through his counsel sent a notice to the respondent alleging that under cl. 1 of the partnership deed the firm was to carry on business at 17-B, Connaught Place, New Delhi with liberty to open any branch at any other place, that a branch was opened at Indian Institute of Technology, Hauz Khas, New Delhi, that as a result of dissolution the respondent took over the technical section, as well as entire business at Indian Institute of Technology, Hauz Khas, New Delhi, that the respondent had agreed to reimburse his share of goodwill of the business at Indian Institute of Technology, that the value of the goodwill of the said branch was Rs. 2,00,000 and under cl. 9 of the partnership deed, the respondent was required to refer the dispute to share goodwill to an arbitrator. It appears that the respondent did not reply to this notice dated 28th March, 1975 and therefore the petitioner filed the present petition. The respondent in his written statement resisted the petitioner's claim on various grounds. Issues were also framed on 29th Nov., 1976. It is not necessary to deal with any of them as at the time of hearing it was discovered that petition under S. 20 of the Arbitration Act was barred by time although no specific plea was raised in the written statement. Opportunity was given for arguments on the question of limitation, parties argued the matter at great length, The questions for decision are (i) whether there is any period of limitation prescribed for a petition under S. 20 of the Arbitration Act and also (ii) whether the present petition is within time. In short the facts of the present case as stated above are that the parties entered into partnership on 1st April, 1960, it was dissolved on 31st March, 1972, the Technical Section at Connaught Place, New Delhi and business at Indian Institute of Technology were taken over by the respondent, the respondent agreed to reimburse the petitioner to the extent of his share in goodwill of the branch at Indian Institute of Technology, Hauz Khas, New Delhi. Thus it appears that the right to claim share in goodwill arose on 31st March, 1972. The petitioner, however, alleges further that the respondent agreed to reimburse his share in goodwill but the respondent denies the same. There is no specific Article in the Limitation Act, 1963 prescribing a period of limitation for a petition under S. 20 of the Arbitration Act. However, there is residuary Art. 137 which is as follows: Description of Period of Time from which application. Limitation, period begins to run. 187. Any other Three years. When the right application for to apply accrues which no period of limitation is provided elsewhere in this Division. There are three divisions in the Schedule to the Limitation Act, 1963. The first division consisting of ten parts refers to the period of limitation for suits. The second division "in the Schedule pertains to limitation for appeals and the third division consisting of two parts pertains to the period of limitation for applicatons. Part 1 relates to the application in specified cases and Part II relates to other applications. In Part II of the third division there is only Art. 137. Under S. 2 of the Limitation Act, 1963 the words, 'applicant' and 'application' have been defined as follows: "2. In this Act unless the context otherwise requires, (a) 'applicant' includes (i) a petitioner; (ii) any person from or through whom an applicant derives his right to apply; (iii) any person whose estate is represented by the applicant as executor, administrator or other representative; (b) 'application' includes a petition". Under the Limitation Act, 1908, the word 'application' was not defined. S. 2 (b) has been inserted in the Limitation Act, 1963 so as to include a petition, original or otherwise. The object appears to be to provide a period of limitation for original petitions and applications under special laws as there was no such provision under the Limitation Act, 1908. It, therefore, appears that legal position changed after the commencement of the Limitation Act, 1963. Art. 181 of the Limitation Act, 1908 was a residuary article for application and it was observed in many decided cases that Art. 181 of the Limitation Act, 1908 was restricted to an application under the Civil P. C. It was held in Mohd. Usman v. Union of India, AIR 1969 SC 474, that Article 181 did not apply to petition under Section 20 of the Arbitration Act. In Kerala State Electricity Board, Trivandrum v. T. P. Kunha- liumma, AIR 1977 SC 282, the Supreme Court after referring to its earlier decisions held that Article 137 of the Limitation Act, 1963 applies to any petition or application filed under any Act to the civil court. The court differed with their view in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli, AIR 1969 SC 1335 and held that Art. 137 of the Limitation Act, 1963 is not confined to applications contemplated by or under the Civil P. C. that the interpretation, which was given to Article 181 of the Limitation Act, 1908, would not be applicable with regard to Art. 137 of the Limitation Act, 1963. The plain language of Art. 137 does not restrict its application to petitions or applications under the Civil P. C. only, but it applies to all applications for which no period of limitation is provided elsewhere i. e. in Part I of the Third Division. Admittedly no period of limitation is prescribed for an application under S. 20 of the Arbitration Act in the Schedule Third Division Part I. Art. 137 therefore, is the only article applicable to such application. I am, therefore, of the opinion that Art. 137 of the Limitation Act, 1963 prescribes a period of limitation, for filing a petition under Section 20 of the Arbitration Act. The question then is when the right to move a petition under S. 20 of the Arbitration Act arose. In other words, when the right to apply accrued, or when the cause of action arose for such a petition. The right to apply accrued on the day when the applicant for the first time became entitled to claim relief. Admittedly the firm was dissolved on 31st March, 1972 and it is on that date that the petitioner was entitled to claim share in the value of the goodwill of the business of the partnership firm at Indian Institute of Technology, Hauz Khas, New Delhi. It is on that day that the petifipner alleges that the respondent agreed to reimburse the petitioner on account of the petitioner's share in the goodwill. In the notice dated 28th March, 1975 sent by the petitioner's. counsel to the respondent, it is observed as follows: "The partnership business was carried on up to 31st March, 1972 after - which the firm was dissolved. As a result of dissolution of the firm you took over the technical section of the shop at 17-B Connaught Place, New Delhi, which was started on the mezzanine floor of the said shops. Besides this you also took over the entire business of the branch at Indian Institute of Technology, Hauz Khas, New Delhi. You had, however, agreed to reimburse my client to the extent of his share of goodwill of the said business of the branch at Indian Institute of Technology. The value of the goodwill of the said branch as on 31st March, 11972 is Rs. 2,00,000.00. My client's share being 50% comes to Rs. 1,00,000.00. My client has requested you on several occasions for the payment of his share of the goodwill but to no avail. On 18th March 1975 a notice in writing calling upon to pay the said sum of Rupees 1,00,000.00 were also sent to you by registered post. The said notice was duly served upon you on 21st March, 1975 but you have failed to pay the amount due to my client." from this notice dated 28 th Mar. 1975 it is clear that the right to claim share in the goodwill arose on 31st March 1972 when the firm was dissolved. Before dissolution there can be no claim to share goodwill. It is not the case of any party that the sharing of goodwill of this branch was postponed. Admittedly no proceeding was filed in any court up to 29th Apr. 1975, except serving the notice dated 28th Mar, 1975 upon the respon- dent who did not send any reply. It was contended by the learned counsel for the petitioner that the right to file petition under S. 20 of the Arbitration Act arose when the notice requiring the respondent to appoint an arbitrator was given and the respondent refused to appoint. I do not agree. Right to file petition under S. 20 is not at all dependent on the respondent's refusal to refer the dispute to arbitration. It is not the law that no application under S. 20 of the Arbitration Act can be made without a notice requiring the opposite party to appoint an arbitrator, and his refusal to refer the dispute to arbitration. A demand to refer the dispute to arbitration and other party's refusal to do so are not ingredients of the cause of action for the right to apply to a court that the agreement be filed and an arbitrator be appointed. The petitioner cannot contend that the cause of action accrued to him only when the respondent refused to refer the dispute to arbitration. Right to claim share in goodwill arose on the date of dissolution i. e. 31st Mar. 1972. The present petition having been filed on 29th Apr. 1975 is therefore, barred by time and is dismissed with no order as to costs. ;