- (1.) BOTH these appeals by special leave, arise out of one and the same judgment dated 26th April, 2002 rendered by the High Court of Judicature Andhra Pradesh whereby it allowed the two appeals being CMA No. 1559/1994 and CMA No. 77/1995.
(2.) FOR the sake of convenience, we shall refer the appellant -Visakhapatnam Port Trust, "vpt" and the respondent - M/s continental Construction Company, "the Contractor". In CMA No. 1559/1994 before the High Court, the dispute between the parties was in respect of refund of an amount of Rs. 74,810. 38 which was recovered by VPT from the contractor's running bill no. 21. VPT entered into an agreement with the contractor on 7th January, 1973 whereunder the contractor was to construct the ore berth 263 meters long 29. 73 meters wide comprising of eight numbers of 18 meters x 27. 73 meters long concrete cribs spaced at 35m centres on prepared foundations and connected by pre-cast pre-stressed deck and R. C. C. slab and construction of two Mooring Dolphins comprising concrete deck supported on 900mm internal diameter Racker bored piles. For the execution of the said contract, VPT was to supply various equipments comprising of hydraulic jacks, hydraulic pumps, steel yoke assembly, jack rods etc. and it appears to be fairly admitted position that 950 nos. of jack rods were supplied by VPT to the contractor. Towards cost of 500 jack rods, on 8th August, 1974, from the contractor's running bill no. 21, an amount of Rs. 74,810. 38 was recovered by VPT. As there was a dispute between VPT and the contractor with regard to return of 950 jack rods valuing Rs. 9,65,155/-, VPT referred to the dispute to arbitration in the year 1975. The statement of claim was filed by VPT before the arbitrators on 4th june, 1976. On 23rd March, 1980, the arbitrators rejected the claim of VPT. The award dated 23rd March, 1980 was challenged by VPT before the Civil Judge, Visakhapatanam by filing a petition under Sections 30 and 33 of the Arbitration Act, 1940 (for short, `act, 1940' ). The Civil Judge, Visakhapatanam dismissed the said petition on 10th September, 1984.
(3.) IT is pertinent to notice here that until the rejection of claim made by VPT for Rs. 9,65,155/- towards the cost of 950 jack rods vide award dated 23rd March, 1980, the contractor did not raise any dispute with regard to recovery of Rs. 74,810. 38 made by VPT on 8th August, 1974 from the contractor's running bill no. 21. It was only thereafter, to be specific on 27th March, 1980 that the contractor called upon VPT to release the sum of Rs. 74,810. 38. Then on 22nd of September, 1984, the contractor initiated proceedings under the Act, 1940 in respect of claim of rs. 74,810. 38 by appointing its arbitrator and also called upon VPT to appoint its arbitrator. The arbitrators entered upon the reference on 1st February, 1985 and they also appointed an Umpire. The contractor filed its statement of claim before the arbitrators on 16th march, 1985. The arbitrators by their award dated 27th October, 1985 accepted the claim of the contractor and passed an award for rs. 74,810. 38 in favour of the contractor. Vpt challenged the award by filing petition (O. P. No. 10/1986) under Sections 30 and 33 of the Act, 1940, inter alia raising the objection that the claim of the contractor was time barred. The Court of the Principal Subordinate Judge, visakhapatnam vide his judgment dated 16th February, 1994 allowed OP No. 10/1986; set aside the award of the arbitrators and held that the claim of the contractor was barred by limitation.;