Pratap Krishna Lohra, J. - (1.) Appellant -contractor has preferred this appeal under Sec. 39 of the Arbitration Act, 1940 (for short 'the Act of 1940') to question the legality and propriety of judgment and order dated 19.03.1998 by which Additional District Judge No. 1 Udaipur (for short 'the learned Trial Court') has rejected its application under Sec. 20 of the Act of 1940. The learned Trial Court by the impugned judgment and order declined the prayer of appellant to refer the matter for arbitration on the ground of limitation by invoking Article 137 of the Limitation Act, 1963 (for short 'the Act of 1963').
(2.) Succinctly stated facts of the case are that in response to NIT issued by the respondent, appellant submitted its tender for executing work in Zinc Smelter, Debari. After acceptance of the tender of appellant, work order was issued in its name by the respondent on 16.01.1982 followed by regular agreement between the parties in the month of March 1982. As per the version of appellant, it has executed the work amounting to Rs. 38,80,000/ - but the requisite amount was not paid to it by the respondent commensurating with the work performed. The appellant ventilated his grievances that against the total work undertaken by it, only a sum of Rs. 20,40,000/ - was paid and the rest of the amount is illegally detained by the respondent. That apart, the appellant has also questioned the action of the respondent for retaining a sum of Rs. 44,000/ - at the time of payment of bills. In substance, as per the appellant, a sum of Rs. 18,40,000/ - + Rs. 44,000/ - remained outstanding with interest accrued thereon.
(3.) Taking shelter of the relevant arbitration clause in the agreement, the appellant submitted an application under Sec. 20 of the Act of 1940 before the learned District Judge, Udaipur on 05.03.1994 which was subsequently transferred to the learned Trial Court. In its application, the appellant has pleaded all the facts to make out a case that dispute is referable to the arbitrator. The application submitted by the appellant is contested by the respondent by urging in the return that entire amount has been paid to the appellant and nothing is outstanding. Besides that, the respondent also romped in Article 137 of the Act of 1963 to persuade the learned Trial Court for rejection of the application of the appellant on the ground of limitation. Later on, the respondent also made endeavour for rejection of the application by submitting an application under Order VII rule 11 CPC precisely on the ground that application is barred by law.;