- (1.) THE present appeal has been filed by the appellant-original applicant under section 39(4) of the Arbitration Act, 1940 (hereinafter referred to as the 'said Act') challenging the the order dated 27.11.2008 passed by the learned District Judge, Jaipur City, Jaipur (hereinafter to be referred to as the 'the court below')in Misc. Civil (Arbitration) Application No. 326/1994, whereby the court below has dismissed the application of the appellant filed under sections 8 and 20 of the said Act seeking appointment of the Arbitrator.
(2.) IT has been submitted by learned counsel Mr. DD Sharma for the appellant that the court below has committed an error of law in holding that the application of the appellant was time barred under Article 137 of the Limitation Act. According to the learned counsel, the cause of action for filing of application for appointment of Arbitrator would arise from the date when the demand for arbitration was raised by the appellant and not from the date of non-payment of disputed amount. Mr. Sharma has relied upon the judgment of this court in the case of M/s Shiv Construction Company vs The State of Rajasthan and ors 2005(4) WLC(Raj.) 234, in support of his submissions. He further submitted that the Chairman of respondent No.1 had directed to make payment to the appellant of the disputed amount in the meeting held on 17.6.1991, however, the said payment was not made and therefore the the notice was issued in 1993 for the appointment of Arbitrator, and the respondents having not responded to the said notice, the application was filed in 1994 before the court below, which was within the prescribed time limit. However, learned counsel Ms Sonal Singh for the respondents relying upon the judgment of Rajasthan High Court in the case of Virji vs Union of India and another 1994(2)WLC (Raj.) 135 and unreported judgment in the case of R.S.E.B. And Another vs Usha Press Tressed and Allied Industries in S.B.Civil Misc. (Arbitration) Appeal No. 30/1992 decided on 19.9.1994, submitted that since no limitation for filing application under section 20 of the said Act has been prescribed, Article 137 of the limitation Act would be applicable and the appellant was required to file application under section 20 of the said Act within three years from the date of accrual of cause of action. She submitted that the court below having rightly considered the provisions and rejected the application by the impugned order which does not call for any interference of this court. Having regard to the submissions made by learned counsel for the parties and to the impugned order passed by the court below, it transpires that the dispute between the appellant and the respondents had arisen in the year 1984 when according to the appellant, the respondents did not make payment of the dues of more than Rupees 16 lacs under the pretext that the Assistant Engineers of the respondents had not verified the distance of the places for the supply of goods. It further appears that the appellant therefore had issued a legal notice dated 28.9.1984, which was responded by respondent No.3 vide letter dated 3.8.1985. Thereafter, it appears that the appellant issued another notice on 29.3.1993 calling upon the respondents to appoint Arbitrator for resolving the disputes between the parties. The respondents having failed to respond to the said notice, the appellant had filed the application before the court below, which has been dismissed by the impugned order on the ground that the application was time barred. From the above stated facts, it clearly transpires that the cause of action for referring the disputes between the parties had already arisen in the year 1984 when the first notice dated 28.9.1984 was given by the appellant to the respondents calling upon them to make payment of the dues and when the payments were not made by the respondents. As rightly submitted by learned counsel Ms Sonal Singh for the respondents, the appellant was required to make the application for the appointment of Arbitrator within three years from the said accrual of cause of action, in view of Article 137 of the Limitation Act as there is no time limit prescribed for making an application under section 20 of the said Act. It appears that with a view to show fresh cause of action,the notice dated 29.3.1993 was given by the appellant to bring the application within the time limit. The appellant after 9 years of the alleged non payment of dues made the application before the court below under section 8 and 20 of the said Act seeking appointment of Arbitrator. The court below has rightly considered the legal and factual aspects of the matter and held that the cause of action having arisen in the year 1987 and the application having been filed in the year 1994, the application was hopelessly time barred. There is no illegality and infirmity in the said order passed by the court below. In that view of the matter, the court does not find any merits in the present appeal more particularly when more than 30 years have already expired to the so called disputes between the parties. The appeal being devoid of merits deserves to be dismissed and is dismissed accordingly. ;