Badar Durrez Ahmed, J.

1. This is a petition under Section 34 of the Arbitration and Conciliation Act, 1996 seeking the setting aside of the award dated 30.06.2005 made by an arbitral tribunal comprising of three arbitrators. The challenge is essentially to the question of arbitrability of claim No. 1 which has been decided by the arbitral tribunal in favor of the claimant (respondent No. 1) herein. The petitioner has also raised issues with regard to limitation and has urged that part of the claim was time barred. It was also contended that the payments which had been made to the petitioner upon certificates issued by the architect cannot be overturned inasmuch as the architect has acted as an agent of the respondent No. 1. Lastly, it was contended that the decision making process of the arbitrators turned out to be a travesty of justice inasmuch as the majority view on the question of arbitrability decided as per the order dated 09.09.2004 had been notified only by the presiding arbitrator and such an order would be illegal in the absence of the signatures of the other arbitrators.

2. The respondent No. 1, who was the claimant before the arbitral tribunal, made submissions to the contrary. It was urged on behalf of the respondent No. 1 that claim No. 1 was an arbitrable dispute particularly in view of the novation of the agreement between the parties recorded in the consent order dated 28.05.1998 passed by a learned single Judge of this Court while disposing of an application filed by the respondent No. 1 under Section 11 of the said Act for the appointment of an arbitrator / arbitral tribunal. It was also contended that the question of limitation must be pleaded specifically. This has not been done either before the arbitral tribunal or before this Court and unless and until specific pleas with regard to limitation are taken, in view of the decision of the Supreme Court in the case of Oil & Natural Gas Commission v. M.C. Clelland Engineers S.A.: [1999]2SCR830 , the petitioner would not be permitted to raise such pleas in the course of oral arguments. With regard to the question of agency, it was submitted that in building and engineering contracts, the architect as certifier does not act as an agent of the employer, but acts as a quasi-judicial authority between the owner and the contractor. A reference was made to Law Relating to Building & Engineering Contracts in India, Fourth Edition by Kishore Gajaria. Moreover, the petitioner in its reply to the claims before the arbitral tribunal had taken the stand that the architect is not the agent of the respondent No. 1 and a unilateral decision to terminate the services of the architect could not have been taken by the respondent No. 1. It was submitted that the petitioner having stated before the arbitral tribunal that the architect was not an agent of the respondent No. 1, cannot be permitted to approbate and reprobate, by now taking the stand that the architect was an agent of the respondent No. 1.

3. With regard to the notification of the majority view of the order dated 09.09.2004 being signed by only the presiding arbitrator, it was contended on behalf of the respondent No. 1 that this issue no longer survives inasmuch as the question of arbitrability of claim No. 1 has been considered in the award itself and the award has been signed by all the arbitrators. Thus, even if the earlier incident could be regarded as an irregularity, the same stood cured by the signing of the award.

4. Before I consider the rival contentions of the parties, it would be appropriate to note a few facts with regard to the background of the case. The respondent No. 1 is a group housing society. In 1989, it invited tenders for the construction of 149 dwelling units at Chilla, Dallupura (now known as Vasundhara Enclave) through its architect M/s Govardhan Kundi and Associates (hereinafter referred to as the said architect). The petitioners tender was found to be the most suitable and the w