TMI Blog1977 (3) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... es 2115 to 2135 of M. B. No. 2/BKD/KCP-3,66,923 Cft @ ₹ 76.23 p. per 1000 Cft. ₹ 25,683.44 (This amount should have been ₹ 27,208.24 as per contractor's claim. 2. The arbitrators held sittings on the said disputes and thereafter referred the matter to an Umpire and the Umpire has made the award on 24th May, 1975 directing the South Eastern Railway to pay to the plaintiff a sum of ₹ 75,802/-and also ₹ 4,312/- on fulfilment of certain conditions. It is the case of the plaintiff that during the currency of the proceedings before the said Umpire, the plaintiff found out that it had omitted to make a claim in respect of short payments made in the item of earth work in formation and filling done between the two banks and shrinkage and other quantities in slopes. The plaintiff, therefore, wanted to raise a claim of ₹ 88,408/- on that score. The said claim was sought to be raised by the letter dated 27th April, 1975. The said letter was to the following effect : To The General Manager, S. E. Railway/GRC/Cal-43, Dear Sir. Sub : Earthwork, Bridgework and turfing in Section 5 under Agreement No. CE/PD/54/64. Against the above-noted Agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the right to apply accrues. My attention was drawn to the decision of the Supreme Court in the case of Kerala State Electricity Board, Trivandrum v. T. P. Kunhaliumma, . There, the Supreme Court held that Article 137 of the Limitation Act, 1963 would apply to petition or application filed under any Act and therefore, it was contended by virtue of the aforesaid decision, Article 137 would apply to an application under Section 20 of the Arbitration Act, 1940 and, therefore, the present application was barred. In this connection, reference must be made to the arbitration Clause 63 which is to the following effect : Clause 63(1). Demand for Arbitration.-- In the event of any dispute or difference between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account or as to the withholding by the railway of any certificate to which the contractor may claim to be entitled to or it the Railway fails to make a decision within a reasonable time, then and in any such case, but except in any of the 'ex-cepted matters' referred to in Clause 62 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there dealing with the question whether in any application under any Act other than Civil Procedure Code, Article 137 of the Limitation Act would be applicable or not. The Supreme Court was not dealing in the last mentioned case with the question whether the contention that the claim was barred by limitation or not before the arbitrator is a relevant consideration for refusing an application under Section 20 of the Arbitration Act, 1940. In the aforesaid view of the matter it must be held that the Question whether a claim is barred by limitation or not before the arbitrator is not a relevant consideration for an order under Section 20 of the Arbitration Act, 1940. This contention urged on behalf of the respondent, therefore, cannot be accepted. 7. The other contention is whether the claim sought to be raised could be allowed to be raised at this time. This question involves two different considerations. First, whether this present claim had been in fact raised before or was part of the previous claim and secondly, whether, if It was not part of the previous claim, it could be referred again afresh. On behalf of the plaintiff reliance was placed on the decision in the case of Ker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim is made, in my opinion, would not be a proper way of looking at a claim made in the arbitration proceeding which, according to me, is meant for speedy and quick disposal of disputes between the parties. In my view, therefore, this claim which is now sought to be raised was part of the claim raised before. It is difficult to determine on what basis the Umpire has awarded the amount for claim for earthwork, entertaining a new claim for earthwork may require modification or alteration of the awarded amount. That is not possible. The claim adjudicated upon was claim for earthwork, the present claim is also a claim for earthwork. Therefore, both on the authority of the decision in the case of Kerorimall v. Union of India, as also on the authority of the English decision referred to hereinbefore It must be held that the present claim is barred by the principles of constructive res judicata. Quite apart from that, it appears to me even if a view is taken that the present claim was not part of the original claim made because it is a claim in respect of earthwork at a different place, then in my opinion, it would require serious consideration whether the same is barred or not in this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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