Bela M. Trivedi, J. - (1.) THE appellant -applicant has filed the present appeal under Section 39 of the Arbitration Act, 1940 (hereinafter referred to as "the said Act") challenging the order dated 26.11.2010 passed by the Additional District & Sessions Judge No. 1, Jaipur City, Jaipur (hereinafter referred to as "the court below") in arbitration Application No. 32/07, whereby the court below has allowed the application of the respondents filed under Order VII Rule 11 CPC. The short facts giving rise to the present appeal are that the appellant was awarded a contract for the construction of New Banswara -Ratlam Road, which was to be completed on or before 19.08.1979, as per the agreement bearing No. 60/1977 -78. However, the disputes having arisen between the parties in respect of the work in question, the respondents had appointed one Shri Yakub Ali, Chief Engineer, P.W.D. (Retired) as the Arbitrator to resolve the dispute between the parties as per Clause 23 of the agreement. It appears that the stipulated time limit of four months for concluding the said arbitration proceedings was extended from time to time by the Chief Engineer of the respondents, however vide the order dated 18.07.1997, the said time limit was not extended by him and it was stated in the said order that the arbitration proceedings shall be deemed to be concluded.
(2.) IT appears that thereafter the appellant again made request to the respondents for appointment of Arbitrator, but the respondents did not accede to his request and, therefore, the appellant -applicant filed the application being No. 32/07 under Section 8 of the said Act before the court below for the appointment of new Arbitrator. The respondents in the said application filed an application under Order VII Rule 11 of the CPC seeking rejection of the application for appointment of new Arbitrator on the ground that the appellant -applicant had suppressed the material facts from the court of the earlier proceedings filed by him and on the ground that the alleged claims of the appellant were time barred. The said application was resisted by the appellant by filing the reply. The court below after hearing the learned counsels for the parties, allowed the said application of the respondents under Order VII Rule 11 of CPC and rejected the application of the appellant, vide the impugned order, against which the present appeal has been filed. It has been sought to be submitted by the learned counsel Mr. Vishnu Sharma, for the appellant that only contention raised by the respondents in their application under Order VII Rule 11 was that the claims of the appellant were time barred, however such issues could be decided by the Arbitrator. He also submitted that since the time limit was not extended by the Chief Engineer and the earlier proceedings were deemed to be concluded, the appellant had no remedy but to file an application under Section 8 of the said Act for the appointment of new Arbitrator, which application has been wrongly rejected by the court below. However, the learned Dy. Government Counsel Mr. Hari Bareth, for the respondents relying upon the decision of the Apex Court in case of State of Punjab Versus Hardayal, : (1985)(2) SCC 629, submitted that after non extension of the stipulated time limit by the Chief Engineer, the appellant was required to make necessary application before the court seeking extension of time limit under Section 28 of the said Act and that the application under Section 8 was not maintainable in the eye of law. He also submitted that the claims of the appellant were thoroughly time barred and no cause of action had arisen for filing the application under Section 8, after the conclusion of the arbitration proceedings.
(3.) AFTER hearing the learned counsels for the parties, and considering the impugned order as also the documents on record, it appears that it is not disputed by the learned counsel for the appellant that the time limit for concluding the arbitration proceedings were extended from time to time after the commencement of the same, and the same was not extended by the Chief Engineer as per the office order dated 18.07.1997, in which the appellant was intimated that the arbitration proceedings were deemed to have been concluded on the non extension of the time limit. The appellant, thereafter, instead of filing application for extension of time limit under Section 28 of the said Act filed application under Section 8 of the said Act seeking appointment of Arbitrator, which could not be said to be tenable in the eye of law, more particularly when the Arbitrator was already appointed earlier, before whom the proceedings were also conducted and then concluded on non extension of time limit. The court below has, therefore, rightly observed that no cause of action had arisen for the appellant to file the application under Section 8 of the said Act. It is needless to say that the provisions of CPC are applicable to all arbitration proceedings before the court in view of Section 41 of the said Act. The appellant having failed to disclose any cause of action and also having failed to disclose all material facts before the court, the court below has rightly allowed the application filed by the respondents under Order VII Rule 11 CPC. In that view of the matter, the Court does not find any substance in the present appeal. The appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.;