- (1.)The appellant's concern was awarded a civil contract for widening and strengthening of Gevra-Katghora Road. An agreement was executed and work order was issued on 11/16-3- 1998. The date of commencement of work was 26-3-1998 and period of completion was 6 months, i.e. upto 25-9-1998, from the date of commencement. The time granted for completion was extended, however the work could not be completed and ultimately the contract was terminated on 6-5-1999. According to the appellant/plaintiff, he sustained various losses which were on account of breach of contract by the defendant/respondent. Thereafter, many correspondence took place. According to the appellant, discussions were held on 30-5-2000 with SO(C), Gevra, in which it was suggested that it was not feasible to settle the dispute through discussion and the later will take action for appointment of Arbitrator by the C.M.D., S.E.C.L.. A communication dated 25-5- 2000 agreeing for settlement of dispute through arbitration was sent by the appellant. When the C.M.D. did not respond to the said communication, an application u/S 11 (6) of the Arbitration and Reconciliation Act, 1996 (Act 1996) was filed by the appellant in the Court of District Judge Bilaspur on 5-5-2001. It was registered as Civil Suit No. 5-A/2001. An objection was taken by the respondent in the said arbitration matter that the arbitration clause having been struck out in the agreement, the appellant had no reason whatsoever for filing the application u/S 11 (6) of the Act 1996. The said application filed by the appellant for appointment of Arbitrator was dismissed by the concerned District Judge on 16-8-2002 holding that there was no arbitration clause in the agreement, therefore, question of appointment of arbitrator does not arise. Thereafter the appellant/plaintiff filed the instant suit on 16-8-2002 before the District Judge Bilaspur claiming an amount of Rs.12,00,246/-. In the civil suit, Para-45, the time spent by the appellant/plaintiff, in the above manner, was explained. However by way of abundant caution, the appellant/plaintiff also filed an application u/S 14 of the Limitation Act. The said civil suit was registered as MJC No. 6/2002. The District Judge, firstly took application u/S 14 of the Limitation Act for decision. The said application was dismissed and consequently it was held that the civil suit was barred by limitation. Thus on the decision of the said application on 4-3-2003, the entire civil suit of the appellant/plaintiff was dismissed as barred by limitation. Hence this appeal.
(2.)The District Judge (trial Court) has held that proceeding u/S 11 of the Act 1996 was not a proceeding of civil nature and the appellant/plaintiff was not prosecuting the said proceeding bonafidely, therefore, the time spent in the proceeding for appointment of arbitrator was not liable to be excluded for computing the period of limitation for the civil suit. It was held that the appellant/plaintiff, knowing fully well that there was no arbitration clause in the agreement, filed the above proceeding for appointment of arbitrator. Thus it was not a case of prosecuting the said proceeding with due diligence. The trial Court relied on the decision of Konkan Railway Corporation Ltd. and Another Vs- Rani Construction Pvt. Ltd., 2002 2 SCC 388.
(3.)Mr. Arvind Dubey, learned counsel appearing on behalf of the appellant/plaintiff, firstly contended that Konkan Railway has been overruled by a Seven Judges Bench in SBP & Co. Vs- Patel Engineering Ltd. and Another, 2005 8 SCC 618. Thus the first ground taken for not condoning the delay u/S 14 stands unfounded. About the other grounds, he submitted that the appellant/plaintiff on the assurance of the officers of the respondent in a discussion before them and thereafter on non appointment of the arbitrator on his letter to C.M.D., had filed the arbitration proceeding. Therefore, it was a case in which the appellant/plaintiff prosecuted the proceeding with due diligence and all bonafides, and the time spent in the arbitration proceeding was required to be condoned.