Sabyasachi Mukharji, J. - (1.) THIS is an application under Section 20 of the Arbitration Act, 1940. Jiwnani-Engineering Works Pvt. Ltd., the plaintiff herein carried on and still carries on business as Railway Contractor and Engineer having its office at 75/C, Vivekananda Road, Calcutta. Pursuant to an invitation to tender by the defendant, the South Eastern Railway, the plaintiff duly submitted a tender for execution of earth work in formation, bridge works, buildings and other miscellaneous works in connection with the doubling of the railway tracks from Hijli to Balasore on the east coast of the South Eastern Railway. It is the case of the plaintiff that the plaintiff duly executed all the works under the agreement. Disputes arose and the same were referred to arbitration. The disputes referred contained as it appears from Annexure-A to the petition claims, inter alia, as follows : "3. Earthwork in embankment. Final bill prepared by XEN as per actual cross-section vide pages 2115 to 2135 of M. B. No. 2/BKD/KCP-3,66,923 Cft @ Rs. 76.23 p. per 1000 Cft. Rs. 25,683.44 (THIS amount should have been Rs. 27,208.24 as per contractor's claim."
(2.) THE arbitrators held sittings on the said disputes and thereafter referred the matter to an Umpire and the Umpire has made the award on 24th May, 1975 directing the South Eastern Railway to pay to the plaintiff a sum of Rs. 75,802/-and also Rs. 4,312/- on fulfilment of certain conditions. It is the case of the plaintiff that during the currency of the proceedings before the said Umpire, the plaintiff found out that it had omitted to make a claim in respect of short payments made in the item of earth work in formation and filling done between the two banks and shrinkage and other quantities in slopes. THE plaintiff, therefore, wanted to raise a claim of Rs. 88,408/- on that score. THE said claim was sought to be raised by the letter dated 27th April, 1975. THE said letter was to the following effect : "To THE General Manager, S. E. Railway/GRC/Cal-43, Dear Sir. Sub : Earthwork, Bridgework and turfing in Section 5 under Agreement No. CE/PD/54/64. Against the above-noted Agreement, we have been paid less with regard to the item of earth-work-information and filling done between the two banks as well as on account of Shrinkage. This quantity comes to 11,59,765 Cft. and in terms of payment dues outstanding comes to Rs. 88,408/- as per the rates of the agreement and we claim the immediate payment for the same. THE Railways have further recovered a sum of Rs. 44,226/- in excess on account of recovery for alleged excess issue and use of cement and we claim for refund of the same. THE Railways having so far not paid us the dues, therefore we claim the interest at 12 per cent which is outstanding as at 31st March, 1975, and it amounts to Rs. 2,41,019/- having remained outstanding. We also claim interest at 12 per cent till our dues are paid. THE aforesaid claims are not in the pending reference before the Umpire Sri K. Balachandran, Addl. Chief Engineer (G), S. E. Rly/GRC, Calcutta-43, for which arbitration of some other claims are before him. Kindly either allow the aforesaid claims or refer the same for adjudication in an Arbitration Reference in terms of the Arbitration Clause No. 63 of General Conditions of the Contract. This may please be treated as 'Urgent'. Thanking you, Yours faithfully, Sd/- for Jiwnani Engg. Works (P) Ltd." As the General Manager of the South Eastern Railway did not allow or refer the said claim in the pending proceedings, the plaintiff has now made this application, under Section 20 of the Arbitration Act.
(3.) IN this application, several contentions were urged in opposition on behalf of the respondent. It was submitted, firstly, that the claim having not been preferred at the time of the first reference could not be preferred now. It was also submitted that the present claim was part of the original claim in respect of which award has been made by the Umpire. It was, then, submitted that the present application was belated. It would be advisable to deal with the last question first, viz. whether the claim is belated.;