P.C.Mallick, J. - (1.) THIS is an application to set aside an award. It relates to a dispute between the parties in respect to the supply of 292 tons of first class teak squares by the respondent to the petitioner under a contract. The contract is the usual contract evidenced by acceptance of a tender. The contract contained an arbitration clause. The disputes referred to arbitrators by the contractors are (a) the claim for sales-tax paid by the contractor; and (b) interest thereon. The arbitrator appointed was the senior Railway Inspector, Shri A. K. Gupta. He made his award on February 16, 1962. The award is In favour of the contractor for Rs. 16,640.64 nP. on account of sales tax paid with Interest thereon at the rate of 51/2 per cent from December 3D, 1957 to February 15, 1962, amounting to Rs. 3675.34 nP. The award directs the President of India to pay the above sums. THIS award is being challenged now by the Union of India.
(2.) MR. Debt De, learned counsel appearing in support of this application contended that the award should be set aside because the arbitrator has made an award of a time barred claim. The relevant fact in support of this contention may be stated as under: The contractor made a demand of his claim by his letter dated September 2, 1957. The reiteration of this damand was made by letter of contract dated December 19, 1957. The Disputes have been referred on February 15, 1961, three years after the last letter of demand. MR. De, therefore, contended that this claim of the contractor is clearly time barred. This error, if at ail, is an error, which does not appear on the face of the award nor in any connected document. This is conceded by MR. De. Nevertheless, MR. De contended that the arbitrator should have disallowed the claim having regard to pleadings from which it would appear that the claim was time barred. In making an award of a time barred claim the arbitrator has acted contrary to law and therefore has mis-conducted in the proceedings. In the statement of facts filed by the contractor, a copy of which is annexed to the petition, the case has been made in paragraphs 13 and 14. There is a reference to these letters of demand -- one dated September 2, 1957 and the other dated September 25, 1957. In paragraph 14, it is pleaded that by the letter dated December 28, 1957, the Sleeper Control Officer of the Union of India admitted and acknowledged that the sum of Rs. 16,640.64 nP. was passed for payment. Mr. De contended that it is clear, therefore, that the contractor relied on the letter dated December 18, 1957, as constituting the acknowledgment of liability, if at all, it is an acknowledgment of liability. The reference having been made three years after that particular date, clearly the claim was time barred. In the counter statement of facts filed by the Government, the plea or limitation has been placed at the forefront, that is indeed the first paragraph of the counter statement of facts wherein it is stated : "The reference is time barred". Mr. De's contention is that on the pleadings there is no acknowledgment of liability so as to take it out of the statute of limitation. In that view of the matter, the arbitrator in awarding the claim has acted contrary to the law of limitation and as such the award cannot be upheld.
(3.) IN a pleading in Court for the purpose of making a claim, a Pleader is required to make necessary averment to show that what appears to be a state claim is still alive by reason of acknowledgment and this fact of acknowledgment should be acknowledged in a proper plaint, I do not however consider that it is equally so in an arbitration proceedings, it is not imperative for a party in arbitration proceeding to plead acknowledgment, Nor is the claim liable to be dismissed 'in limine' if in the statement of facts acknowledgment is not pleaded to save limitation. I am, therefore, not satisfied that merely because in the statement of facts there are not the necessary averments to take the claim out of the statute of limitation, the arbitrator should have disallowed the claim of the contractor. IN the counter statement of facts, the point of limitation was expressly taken. There was, therefore, an issue before the arbitrator as to whether this particular claim of the contractor was barred by limitation or not. Mr. De contended that the appropriate article to apply was Article 115. Mr. Subimal C. Roy, learned counsel appearing on behalf of the contractor contended on the other hand that in substance and in fact, the claim of the contractor is for reimbursement of the sales tax paid by them. There being no express article for such cases of reimbursement, the appropriate article to apply is Article 120. He has drawn my attention to a passage in Rustomji on Limitation Act at pp. 37-38 as also a decision of the Privy Council in the case of Raja Peary Mohan Mukherjee v. Narendranath Mukherjee, reported in 37 INd App 27. He has drawn my attention to a paragraph at pp. 37-38. IN that case it was held by the Judicial Committee that there is no express article in the Limitation Act for a suit for the recovery by a trustee of the amount paid by him on account of the trust as and by way at reimbursement and as such Article 120 would apply. Mr. Roy contended that on the same principle in the instant case, the appropriate article would not be Article 115, but Article 120. It seems to me that Mr. De is right in his contention that the appropriate article to apply in a case of this description is Article 115 and not Article 120 and that the decision in 37 INd App 27, does not apply to the facts of this case. But that does not dispose of the matter. A claim more than three years old may yet be alive by reason of acknowledgment in writing made by the debtor. IN the instant case various documents including a bunch of correspondence were placed before the arbitrator as evidence. One of such letters being a letter dated February 17, 1958 adduced by the Sleeper Control Officer has been referred to and relied on by the contractor as amounting to an acknowledgment of liability so as to extend the period of limitation. It is an inter-departmental letter, a copy of which was sent to the contractor. It is not for me to decide whether it amounts to acknowledgment in law. The arbitrator might have held on the basis of this document or any other document that the claim was not time barred. The decision of the arbitrator right or wrong is not liable to be set aside, unless the error of law is apparent on the face of the award. As stated before, the error of law, if any, is not apparent on the face of the award. IN my judgment, it is not for the Court to ransack the whole record for the purpose of finding out whether in fact there is or is not an acknowledgment in the documents filed before the arbitrator. The letters were placed before him and he might well have construed the document or any one of them to amount to an acknowledgment so as to take the claim out of the Statute of Limitation. It cannot therefore be contended that the arbitrator must have made the award of a time barred claim contrary to the provisions of the INdian Limitation Act. The award is not liable to be set aside on this ground.;