D.N.PATEL,J. - (1.) Having heard counsel appearing for both sides and looking to the facts of the case it appears that the agreement in question is of the year 1988 and the work which was allotted to this applicant was abandoned in the month of April, 1990 as stated in the counter affidavit filed by the State.
(2.) It has been held by the Hon'ble Supreme Court in SBP and Co. v. Patel Engineering Ltd. And Another reported in (2005)8 SCC 618, para 39, as under: "39. It is necessary to define what exactly the Chief Justice, approached with an application under Section 11 of the Act, is to decide at that stage. Obviously, he has to decide his own jurisdiction in the sense whether the party making the motion has approached the right High Court. He has to decide whether there is an arbitration agreement, as defined in the Act and whether the person who has made the request before him, is a party to such an agreement. It is necessary to indicate that he can also decide the question whether the claim was a dead one; or a long barred claim that was sought to be resurrected and whether the parties have concluded the transaction by recording satisfaction of their mutual rights and obligations or by receiving the final payment without objection. It may not be possible at that stage, to decide whether a live claim made, is one which comes within the purview of the arbitration clause. It will be appropriate to leave that question to be decided by the Arbitral Tribunal on taking evidence, along with the merits of the claims involved in the arbitration. The Chief Justice has to decide whether the applicant has satisfied the conditions for appointing an arbitrator under Section 11(6) of the Act. For the purpose of taking decision on these aspects, the Chief Justice can either proceed on the basis of affidavits and the documents produced or take such evidence or get such evidence recorded, as may be necessary. We think that adoption of this procedure in the context of the Act would best serve the purpose sought to be achieved by the Act of expending the process of arbitration, without too many approaches to the court at various stages of the proceedings before the Arbitral Tribunal." (Emphasis supplied)
(3.) It has been held by the Hon'ble Supreme Court in State of Goa v. Praveen Enterprises reported in (2012) 12 SCC 581 in para 35-36, which reads as under: "35. The difference between a dead/Stale claim and a mere time-barred claim was explained by this Court in Indian Oil Corpn. Ltd. v. SPS Engg. Ltd. thus:(SCC p. 515, para 14) "14. ....When it is said that the Chief Justice or his designate may choose to decide whether the claim is a dead claim, it is implied that he will do so only when the claim is evidently and patently a long time barred claim and there is no need for any detailed consideration of evidence. We may elucidate by an illustration: If the contractor makes a claim a decade or so after completion of the work without referring to any acknowledgement of a liability or other factors that kept the claim alive in law, and the claim is patently long time barred, the Chief Justice or his designate will examine whether the claim is a dead claim (that is, a long time barred claim). On the other hand, if the contractor makes a claim for payment, beyond three years of completing or the work but say within five years of completion of work, and alleged that the final bill was drawn up and payments were made within three years before the claim, the Court will not enter into a disputed question whether the claim was barred by limitation or not. The Court will leave the matter to the decision of the Tribunal. If the distinction between apparent and obvious dead claims, an claims involving disputed issues of limitation is not kept in view, the Chief Justice or his designate will end up deciding the question of limitation in all applications under Section 11 of the Act." 36. The issue of limitation is not an issue that has to be decided in an application under Section 11 of the Act. SBP and Co. and Boghara Polyfab held that the Chief Justice or his designate will not examine issues relating to limitation, but may consider in appropriate cases, whether the application was in regard to a claim which on the face of it was so hopelessly barred by time, that it is already a dead/stale claim which did not deserve to be resurrected and referred to arbitration. The said decisions do not support the respondent's contention that the details of all claims should be set out in the application under Section 11 of the Act and that details of all counterclaims should be set out in the statement of objections, and that a claim or a counterclaim which is not referred to or set out in the pleadings in the proceedings under Section 11 of the Act, cannot be entertained or decided by the Arbitral Tribunal." (Emphasis supplied);