( 1 ) THE Delhi Development Authority (in short DDA) has sought for appointment of an arbitrator for its counter claims. According to the D. D. A. these disputes arose out of the same cause of action/facts on which basis claimes of the respondent were REFERRED TO to the arbitration.

( 2 ) THE facts of the case are that when the dispute arose between the respondent here with the D. D. A. , he sought for referring his disputes to arbitration and accordingly filed a petition under Section 20 of the Arbitration Act. Vide the order of this Court dated 8th August,1988, those disputes as mentioned in the petition were directed to be REFERRED TO to an arbitrator within eight weeks. Since the D,d. A. failed to appoint an arbitrator within eight weeks, hence this Court vide order dated 27th April,1989 appointed Shri J. D. Goel as the sole arbitator. By the present petition, the D. D. A. wants its counter claim to be REFERRED TO to an arbitrator.

( 3 ) THIS petiton has been contested by the respondent, inter alia, on the grounds that the counter claim of the D. D. A. now sought to be raised ought to have been raised in response to the petition filed by the respondent under Section 20 of the Arbitration Act listed as Suit No. 2379-A/87. Having not done so, the present petiton is barred by the principle of resjudicata as well as under Order 2 Rule 2 Civil Procedure Code. Further the contract in this case was rescinded by the D. D. A. on 21st May,1986 in which it was mentioned that the balance work would be got done from another contractor at the risk and cost of the respondent here. The respondent had challenged the rescission of the contract before the arbitrator by raising claim in that regard. The D. D. A. having failed to file its claim within three years from the date of rescission of the contract, the present petiton is barred by time. On merits respondent denied that the counter claims are admissible. Moreover, these have already been argued before the arbitrator. The D. D. A. participated in the proceedings before the learned Arbitrator Shri J. D. Goel and got these claims adjudicated. Therefore, the present petiton is not maintainable. On the pleadings of the parties following issues were framed :

1. Whether the petition discloses a cause of action?

2. Whether the petition is barred by time?

3. Whether the petition is barred by the principles of resjudicata under Section 11 and By order 2 Rule 2 of Civil Procedure Code. ?

4. Whether the petitioner deliberately delayed the preparation of the final bill and if so, to what effect ?

( 4 ) VIDE order dated 7th March,1995, it was decided that issues 2 and 3 would be taken up as preliminary issues being purely legal and do not require any evidence. I have heard arguments on these two issues. Since, these issues are inter-connected hence disposed of by one order. My finding on these issues is as under. Issues No. 2 And 3 :

( 5 ) SO far as material facts are concerned, these are not in dispute. This contract was rescinded on 21st May,1986. The question for consideration is from which date the period of three years has to be counted? Whether from the date the contract was rescinded i. e. 21st May,1986 or from the date the balance work was got completed by the D. D. A. at the risk and cost of the respondent which in this case is alleged to be 7th November,1989 or from the date the final bill was paid to the other contractor? Mr. Dalip Singh, appearing for the respondent contended that the limitation has to be counted from the date the contract was terminated. The cause of action accrued on the date the rescission took place and not when the DDA choose not to get the work done at the risk and cost of the respondent. If this assertion of the D. D. A. is accepted then the respondent s fate will always hang and would depend on the mercy of the D. D. A. That is not the intention of the legislature. Article 137 of the Limitation Act says three years from the date the contract was rescinde