Chittatosh Mookerjee, J. - (1.) The Union of India representing South Eastern Railway Administration preferred this appeal against the order dated 31st March, 1973 of the learned Chief Judge, City Civil Court, Calcutta under Sec. 20 of the Arbitration Act, 1940. The learned Judge of the court below by the said order directed the defendant, Union of India, to file within a fortnight the agreement in question and also directed the parties to appoint an Arbitrator In terms of the said agreement between them made in May, 1960. At the outset, it Is necessary to point out that the Memorandum of Appeal was wrongly classified as an Appeal from Original Decree Instead of an Appeal from Original Order. An Order passed under Sec. 20 of the Arbitration Act, 1940. is not a decree but under Sec. 39 of the said Act an appeal lies against an order for filing or refusing to file an arbitration agreement In the facts of this case when both parties have already appeared and we have heard them at length on merits, it would have been an exercise in futility to set down this appeal for hearing under Order 41 Rule 11 of the Civil Procedure Code. The learned advocate for the respondent has not objected to the final disposal of this appeal on merits. Therefore, we proceed to decide the appeal. We also direct the office to classify this appeal as an Appeal from Original order and to make necessary note in the Memorandum of Appeal. The short point in this appeal is whether or not the said application under Sec. 20 of the Arbitration Act, 1940 fried by the respondent on 30th March, 1971 was barred by limitation. The learned Chief Judge distinguished the decision of M.M Dutt, J. in Ram Kumar Kajaris v/s. Messars Chandra Engineering (India) Ltd. 76 CWN 426 and held that Article 137 of the Limitation Act, 1963 had no manner of application to the said application under Sec. of the Limitation Act.
(2.) The respondent in paragraph (4) of his application under Sec. 20 of the Arbitration Act, 1940 mentioned the alleged Disputes and differences which had arisen between the parties out of and in connection with an agreement between them made in May, 1960. He averred in paragraph (5) of the said application that by notice dated 14th March, 1963 written to the General Manager, South Eastern Railway, he had demanded reference to the said disputes to arbitration. He however, did not mention the precise date on which the defendant, Railway Administration had failed and neglected or refused to refer the said disputes to arbitration. According to the plaintiff -respondent, the said refusal was wrongful and illegal. Copies of relevant correspondence annexed to the application and collectively marked with the letter 'A' however, contained one undated letter of the Deputy F. A. and C.A.O. (Arb) for General Manager, South Eastern Railway. With reference to the respondent's letter dated 14th March, 1963 Informing the latter that the matter could not be referred to arbitration for the reasons contained in the said letter. Again, on 29th August, 1966 the General Manager, South Eastern Railway wrote a letter to the respondent stating : - The claims and disputes raised by you have been carefully scrutinized and it is found that the same are covered by the provisions of clause 22(5) of the General Conditions of Contract and fall within the purview of "Excepted matter. It is therefore regretted that your request for referring the claims/disputes to arbitration cannot be agreed to. Thus, atleast on 29th August, 1966 a difference had arisen and the respondent had cause of action for applying to a court having jurisdiction in the matter for filing under Sec. 20 of the said Act the aforesaid arbitration agreement. But, as already stated, only on 30th of March, 1971 the respondent had filed in the court below the said application under Sec. 20 of the Act.
(3.) In our view, the learned Chief Judge was not right In applying the ratio of the decision of the Supreme Court in the Mulchand and Co Ltd. v/s. Jawahar Mills Lid., Salem : AIR 1953 SC 98 With reference to an application for rectification of register under a Sec. 38 of the Companies Act, 1913. the Supreme Court had held that Articles 48 and 49 of the Limitation Act were not attracted as the claim involved was not for return of share scripts. Their Lordships further held that Article 181 of the Limitation Act, 1908 applied to applications under the Code of Civil Procedure and, therefore, the same was also in applicable to the case before them. Alternatively, it was held that even if Article 181 apply, the application was within time either under the said article or under article 120 of the Limitation Act, 1908.;