Court No. - 59
Case :- ARBITRATION AND CONCILI. APPL.U/S11(4) No. - 78 of 2019 Applicant :- Sri Srinath Verma (Contractor) Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Rajeev Ratan Shukla Counsel for Opposite Party :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. The present application has been filed seeking appointment of an arbitrator for a dispute of payment claimed by the applicant under a written contract awarded to it by the Uttar Pradesh Public Works Department, Allahabad dated 18.10.2008.
2. According to the applicant, the work awarded to him, was for construction and dismantling of pontoon bridges and for construction of approach road in the Magh Mela in 2008-09. The work is claimed to have been executed successfully but the payments had remained pending. The amount claimed by the applicant is stated to be admitted to the State respondents being Rs. 3,72,859/- as acknowledged on 29.08.2016 in a letter written by the Executive Engineer. Further, it is stated that since payments were not being made, applicant had served a notice on the respondents for appointment of arbitrator. In absence of such payment being made, the applicant has approached this Court.
3. At the outset, the learned Standing Counsel has taken a preliminary objection that the claim is wholly time barred and that the acknowledgement issued on 29.08.2016 would be of no avail as, on that date, the period of limitation of three years provided under the Limitation Act had already expired. Thus, relying on Section 18 of the Limitation Act, it has been submitted, the said document does not constitute an acknowledgement, as may save the limitation of time.
4. Perusal of the affidavit filed in support of the application does not bring out any assertion on part of the applicant that the amount being claimed had been acknowledged by the respondents at any point of time within three years from the date of completion of the work awarded to the applicant. In fact, the acknowledgement being relied upon, appears to have been issued almost six years after the completion of the work. Thus, it has to be accepted that the proceedings instituted for appointment of arbitrator are for a time barred claim. In any case, the application itself has been filed well after three years when the cause of action first arose.
5. Therefore, while no arbitrator may be appointed in the present proceedings, it appears to be prima facie unfair on part of the State to have got executed petty works from the applicant and to have not made payments for a long period of time solely on account of financial constraints. Every litigation involves costs and therefore petty contractors or persons with limited means may not readily resort to court procedures, unless compelled.
6. Therefore, while rejecting the request for appointment of arbitrator, the Court leaves it to the best and fair judgement of respondent no.3 to examine the matter and to pass such orders with respect to the payments being claimed by the applicant, as may be consistent with fairness and reasonableness as must inhere in all State actions.
7. While making this observation, the Court is cognisant that limitation may only bar a remedy but may not defeat the right of the applicant.
8. The application is accordingly disposed of.
Order Date :- 22.8.2019/AHA