Vijender Jain, C.J. - (1.) This petition under Sec. 11 of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as the 'Act') for appointment of an arbitrator to adjudicate the disputes between the parties arising out of the agreement has been filed by the petitioner.
(2.) Learned Counsel for the respondents has contended that this petition under Sec. 11(6) of the Act will not be maintainable. According to learned Counsel for the respondents the final bill was accepted by the petitioner without any protest and that was done on 11.4.2000. It is contended that when full and final settlement has been arrived at between the parties without raising any protest, the present petition cannot be maintained. Referring to Clause 25 of the Arbitration Agreement, it is contended by learned Counsel for the respondents that the petition will not be maintainable under Sec. 11(6) of the Act as Clause 25 of the Agreement provides a mechanism for settling the disputes and in the event of the petitioner not taking recourse to such mechanism, the petition under Sec. 11(6) of the Arbitration Agreement Act would not be maintainable. Learned Counsel for the respondents has further contended that the petition is barred by limitation. In support of his contention learned Counsel for the respondents has relied upon P.K. Ramaiah and Company v/s. Chairman & Managing Director : 1994 (3) SCC 126, and Union of India v/s. Popular Builders, 2001 (1)RCR 363. Learned Counsel for the respondents has also relied upon Major (Retd.) Inder Singh Rekhi v/s. : [1988]3SCR351 and S. Rajan v/s. : [1992]3SCR649 .
(3.) On the other hand learned Counsel for the petitioner has contended that the petition under Sec. 11(6) of the Act is maintainable as the petitioner had written at the first instance to the Executive Engineer on 6.5.2000, inter alia stating that lot of measurements and payment are still pending and the measurements and bill are not acceptable to him. My attention has also been drawn to the letter written by the petitioner to the Executive Engineer on 11.8.2000 with a copy to the Chief Engineer requesting to settle the claim listed at Annexure -A. On the copy to the Chief Engineer, there was a request by the petitioner to the said Chief Engineer to treat the said letter as request for arbitration under Clause 25 of the agreement. On the basis of the aforesaid letter, it is contended before me that limitation as a matter of fact, would start from 11.8.2000 and therefore, the petition filed by the petitioner was in time as the same was presented to the court on 8.7.2003. Another argument raised by the learned Counsel for the petitioner is that the last payment was made by the respondent on 24.8.2002 on the basis of Annexure -A16 (Page 119). The payment of a sum of Rs. 74266/ -was made by the respondent towards final bill on 24.8.2002 and if the payment was made on 24.8.2002 the petition was well within time.;