BHIMSEN SUBUDHI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner, a contractor, was entrusted with the work "Construction of Submersible Bridge over river Kusumi on Odgaon Bahadajhola road" under agreement No. 484 F -2 of 1962 -63 executed by him and the State Government represented by the Executive Engineer (R&B) by Khurda Division. The petitioner filed the application dated 13 -9 -1982 before the Subordinate Judge, Bhubaneswar praying for appointment of an Arbitrator for adjudication of some disputes relating to the said work. In the said application he stated, inter alia, that while executing the work, he had executed some extra items and some excess quantities over and above those mentioned in the agreement. Though the work was completed in all respects, he had not been paid for the extra works executed by him. He served a notice on the Chief Engineer (R&B) by registered post with A.D. on 22 -7 -1982 and the same was received by the addressee in time. A copy of the said notice was also served on the opposite party No. 2 on 7 -8 -1982. Since the Chief Engineer failed to appoint an arbitrator within the stipulated period of 15 days of receipt of the notice, the petitioner filed the application before the court under Section 8(2) of the Arbitration Act, 1940 (for short 'the Act') for appointment of an arbitrator.

(2.) THE opposite parties in their counter to the petitioner's application stated inter alia, that there was no dispute between the parties to be referred to arbitration. According to them, the alleged claims of the petitioner were never put forth before the department and were not traversed at any time. In the absence of any dispute between the parties, the Chief Engineer did not think it necessary to appoint an arbitrator.

(3.) THE learned counsel for the petitioner contended that the court below was not justified in rejecting the application for appointment of arbitrator on the ground of delay, since the question of limitation was to be considered by the arbitrator and not by the court. It was further contended by the learned counsel that there was no prescribed period of limitation for filing the application under Section 8(2) of the Act. The learned Additional Standing Counsel, on the other hand, supported the order passed by the learned Subordinate Judge. On persual of the impugned order, it is clear that the court below rejected the application for appointment of an arbitrator not merely on the ground of limitation, but on the ground that there was no dispute between the parties calling for reference to arbitrator. This is manifest from the observation of the court in paragraph 4 of the order :