TMI Blog2016 (7) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... which needed an adjudication after looking into all relevant documents, bills and certificates which could have been appropriately examined by Arbitral Tribunal and the observation of the Chief Justice “As the appellant has failed to prima facie show this court that there was a live claim of the appellant” does not commend us. The claim raised by petitioner in the facts of the case could not have been said to be a dead claim - As a consequence thereof, the application made by the appellant under Section 11 of the Act is allowed. - Matter remitted back to High Court for appointing the arbitrator for deciding the disputes which have arisen between the parties - Decided in favor of appellant. - Civil Appeal No. 7184 of 2008, Civil Appeal No. 7185 of 2008 - - - Dated:- 29-6-2016 - Abhay Manohar Sapre And Ashok Bhushan, JJ. JUDGMENT Ashok Bhushan, These two appeals raising identical questions of law have been heard together and are being decided by this common judgment. For deciding both the appeals, it shall be sufficient to refer to facts and pleadings in Civil Appeal No. 7184 of 2008. Appeal No. 7184 of 2008 has been filed against judgment of Chief Justice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any protest and had given No Further Claim certificate. Hence no arbitrable dispute exists. The claim now intimated after the lapse of a period of approx four years is baseless and hence denied. 8. A letter dated 24.03.2005 was written by the contractor to the chief engineer in reference to notice dated 23.02.2005 with a prayer that arbitrator under condition 70 of the Contract may kindly be appointed to adjudicate the dispute. The appellant thereafter filed an application under Section 11 of the Arbitration Act before District Judge, Ropar. The application was ultimately taken by Chief Justice of the High Court and by an order dated 12.03.2007, the application was rejected taking the view that appellant s claim is not a live claim. Aggrieved against the above judgment dated 12.03.2007 in Arbitration Case No. 184 of 2006, Appeal No. 7184 of 2008 has been filed. 9. Arbitration Case No. 89 of 2006 has also been filed by the appellant seeking appointment of an arbitrator under Section 11 of the Act in the said case and also the work was completed on 23.09.2000 and the final bill was paid on 10.04.2001. Notice along with list of claim was sent by the appellant on 23.02.2005 i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich application has been rejected by Hon ble Chief Justice not on valid considerations. 15. Learned counsel appearing for the respondents supported the judgment of the Chief Justice and contends that for filing any application limitation is three years as per Article 137 of the Limitation Act, 1963. Final bill had been paid on 10.04.2001, any application for any claim in respect to final bill ought to have been raised within three years. It is contended that the respondents have raised the preliminary objections in reply objecting the application for arbitration filed by the appellant, which has rightly been rejected by the Chief Justice. 16. We have considered the submissions of both the parties and have perused the record, what is the nature of jurisdiction of the Chief Justice while deciding an application under Section 11 of the Act has elaborately been considered by Seven Judge Bench of this court in SBP CO. versus Patel Engineering Ltd and another (2005) 8 SCC 618. In para 47 of the judgment, conclusions were recorded by the larger Bench. Conclusion IV is relevant for the present case which is quoted as below: 47. We, therefore, sum up our conclusions as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the work but say within five years of completion of work, and alleges 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, and 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. 19. Further this court has observed that an application under Section 11 of the Act is expected to contain pleading about the existence of a dispute and the applicant is not expected to justify the claim or plead extensively in regard to limitation or production of document to demonstrate that claim is within time in proceeding under Section 11 and that issue should normally be left to the Arbitral Tribunal. Following was observed in para 15: 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annexure 16 certain certificates which were given by the contractor on 20.02.2001 that is when the final bill was prepared, has been brought on record. The payment was made by cheque dated 10.04.2001 and para 3/4 of the certificate filed at the 2nd page of the annexure 16 states as follows: 3. Printed Certificate signed by the petitioner at the time of receiving payment of the undisputed part of the Final Bill. Received ₹ 57532/-. This payment is in full and final settlement of all money due under C WE/AF CHD / CHD-5/98-99 and I have no further claim in respect of the .. Sd/- Contractor 4. Payment by Cheque of the undisputed part of the Final Bill made by the dispersing officer, mentioned-herein-below:- Cheque No. H 916930 dated 10.4.2001 for ₹ 57532/- issued in favour of M/s Emm Enn Associates on SBI AF Chandigarh Treasury. Sd/- Signature of Dispersing Office 23. Para 04 of the above certificate as quoted above clearly mentions payment by cheque of the undisputed part of the final bill and above certificate also clearly indicates that payment on 10.04.2001 was made of the undisputed part of the final bill which presuppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant has reserved his right to raise claim to the disputed part. 26. In view of the Division Bench judgment in Indian Oil Corporation Ltd. supra para 14 as extracted above, the present was the case which ought to have been left for the decision by the Tribunal. We, however, have proceeded further to examine the claim raised by the appellant in his notice dated 23.02.2005. The pleadings of the appellant are categorical to the effect that the final payment made on 10.04.2001 was only with regard to undisputed portion and he has reserved his right to raise claim with regard to other disputed claims. 27. The disputed claims having never been adjudicated, we are of the view that there was a dispute which needed an adjudication after looking into all relevant documents, bills and certificates which could have been appropriately examined by Arbitral Tribunal and the observation of the Chief Justice As the appellant has failed to prima facie show this court that there was a live claim of the appellant does not commend us. 28. The claim raised by petitioner in the facts of the case could not have been said to be a dead claim. Especially in view of the additional documents whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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