Mr Justice B. Prakash Rao J:-

The appellant is an unsuccessful applicant in the Court below, who filed this appeal under Section 39 of the Arbitration Act, 1940 ('the Act' for brevity) assailing the order dated 08.03.2002 in O.P.No.44 of 1994 on the file of the I Additional Senior Civil Judge, Visakhapatnam, rejecting an application filed under Sections 33 and 37 of the Act read with Section 151 of the Code of Civil Procedure, 1908, wherein he sought to condone the delay in preferring the claims/disputes in view of the undue hardship that would be caused to him and for determining the Arbitration Clause.

2. Heard Sri D.V. Sitaramamurthy, learned counsel appearing on behalf of the appellant and Sri V. Ravinder Rao, learned Standing Counsel appearing on behalf of the respondents.

3. The facts, in brief, are that the appellant, who is a Class-I Contractor, was awarded the work of construction of structural steel and cladding work by the respondents fixing the period for completion within twenty one (21) months vide agreement No.VSP/CONT/M-14/87-88. It also provided that specific clause for arbitration in the event of disputes being arising. The appellant sought to invoke the said arbitration clause. Both sides made several allegations either way, there is no need to refer to any of these aspects at this stage. However, the arbitration clause contemplates two situations, providing the periods of the limitations. As per clause 16 (2) of the GCC disputes, differences on the claims other than excepted matters, have to be referred within 28 days of the decision of the Engineer. However, there has been delay of 22 months in filing the present application and seeking for appointment of the Arbitrator on the claims not accepted. In explaining the delay, the main reason shown is having regard to the illness he has been suffering, supported by a medical certificate but not marked. Therefore, it is the case of the appellant that undue hardship will be caused, if the arbitral proceedings are not initiated. Hence, the application.

4. Contesting the application, the case of the respondent is total denial on those allegations and that absolutely there is no justification behind the claims. Further, it was alleged that he himself is responsible for such long delay and latches without justification. The appellant has not come up with sufficient reason to seek indulgence under Section 37 (4) of the Act and therefore, the application is liable to be dismissed. On a consideration of the allegations made from both the sides in the pleadings, the Court below, after holding a detailed enquiry where the documents were marked by consent as Exs.A1 to A11 on behalf of the appellant and Exs.B1 to B15 on behalf of the respondent, held that the appellant has failed to give valid and sufficient reason and dismissed the application. Hence, the appeal.

5. The main thrust on the part of the appellant is to the effect that while considering the application under Section 37 (4) of the Act, it cannot be put under the same lines as that of Section 5 of the Limitation Act, 1963. Whereas, the Court below virtually considered the present application from stricter scrutiny, without taking note of the different expressions used, having varying connotations. On behalf of the respondents, it is contended that having regard to the facts of the case and there being no valid explanation for the delays without proper medical certificate, there is no need to seek any indulgence.

6. Having heard on either side and on perusal of the material available on record, the only point that arises for consideration is as to whether under the facts and circumstances of the case, the appellant is entitled for condonation of delay in filing the application filed in the Court below.

7. Before taking up the aforesaid issue, it is relevant to extract the provisions of Section 37 (4) of the Act and Section 5 of the Limita