M.Y.EQBAL, J. - (1.) THIS appeal is directed against the judgment dated 23.5.96 passed by Sub - judge, II, Bermo at Tenughat in Title Suit No. 5/88 whereby he has decided the issue of limitation and res judicata as preliminary issue and dismissed the suit.
(2.) THE plaintiff -appellant is a partnership firm carrying on the business of construction work. In 1966 it entered into an agreement with the defendant - respondent No. 2 for earth work in Tenughat Dam Project. In course of construction work the contract was terminated and the respondents detained the tractor Doser, wielding set and other vehicles. Consequently a dispute arose and the plaintiff -appellant filed Title Suit No. 89/73 in the Court of Sub -judge, Giridih seeking appointment of an arbitrator under Section 20 of the Arbitration Act in terms of the arbitration clause contained in the agreement. The said application was allowed and the Superintending Engineer, Dam Project Tenughat was appointed as an arbitrator. The arbitrator gave his award directing the respondents to pay a sum of Rs. 97,953 to the plaintiff. The said award was made Rule of the Court and a decree dated 18.1.78 was passed. The plaintiffs case in the instant suit is that although the defendant paid the award amount but did not return the vehicles and the wielding set in running condition and due to their negligence the machines have been badly damaged. However, the defendants agreed to return the said machines after getting them repaired and for this purpose the defendants sent a letter to the Tractors India Limited, Calcutta for estimated cost of the tractor and the latter demanded Rs. 15,09,983 -32 towards the cost of the vehicles. It is alleged that due to the negligence of the defendants the machines have been damaged and they are liable to pay the estimated cost to the plaintiff. The plaintiff, therefore, again sought reference of the dispute to the arbitrator.
(3.) THE defendants contested the suit by filing written statement contending, inter alia, that the application under Section 20 of the Arbitration Act is barred by law of limitation, Waiver and the principles of res jadicata. It is alleged that the earlier application under Section 20 of the Act was filed and the award was published on 10.8.1977 with a direction to hand over the vehicles. The defendants paid the awarded amount to the plaintiff and the Court passed a decree on 18.1.1978. The Court further vide order dated 20.9.1978 passed a decree to return the machines but the defendants (failed) to do so. It is further stated that the plaintiff filed a execution case being No. 27/81 with regard to the cost of repair of the said machines which was rejected.;