Point of Law : Limited scope of jurisdiction under Section 11 of Arbitration & Conciliation Act, 1996, any preliminary question in regard to limitation has to be decided by Arbitrator.

JUDGMENT :

Neena Bansal Krishna, J.

I.A. 11891/2021 (U/s 148 read with Section 151 of CPC for condonation of delay in filing the amended memo of paties)

1. This application has been filed under Section 148 read with Section 151 of the Civil Procedure Code, 1908 by the petitioner seeking condonation of delay 42 days in filing the amended memo of parties.

2. For the reasons stated in the application, the delay of 42 days in filing the amended memo of parties is condoned.

3. Amended memo of parties has already been taken on record.

4. Application is disposed of.

ARB.P. 685/2020

1. A petition under Section 11 of the Arbitration & Conciliation Act, 1996 read with Section 151 of CPC has been filed on behalf of the petition seeking appointment of an Arbitrator.

2. In 2005 the respondent No.1 Uppal Engineering Co. Pvt. Ltd. was awarded a contract by Northern Railways in relation to "Earthwork in filling in embankment & cutting, provision of blanketing material, construction of minor bridges, major bridges with PSC Slab and other allied works between Samargopalpur (excluding)-Kinana (Excluding) Stations". The Respondent No.1 approached the petitioner for sub-contracting the works under the main contract awarded to it by Northern Railway. Accordingly, an Agreement dated 10th March, 2005 was entered into between the petitioner's erstwhile proprietorship firm M/s Sura Construction Co. with respondent no.2 (Director of the Respondent No.1/Company) on behalf of respondent No.1 Company for sub-contracting the work under the main contract awarded to respondent No.1.

3. The sub-contract Agreement required respondent No.1 to take up any dispute arising out of execution of Works including the payment in terms of "price variation clause" with the Employer. Further, since the work had been executed by the petitioner, the sub-contracting Agreement contained the provisions with respect to distribution of the claim amount in case of a successful outcome and contained a provision for settlement of disputes through arbitration.

4. The petitioner completed the work under the main contract as per the terms set out in the sub-contract Agreement to the satisfaction of the respondents and the Employer and final Bill under the main Contract was released in October, 2008 to respondent No.1.

5. The respondent No.1 around the same time was pursuing the claim against the Employer for payment under "price variation clause" under the main contract with respect to the works executed by the petitioner as per sub-contracting Agreement. The arbitration in respect of said claims was invoked some time in 2009. The said matter involving claims arising out of "price variation claim" PVC was finally taken out by Civil Court at Patiala House Courts as informed to the petitioner by respondent No.2.

6. At the time of settlement of amounts in 2008 an amount of Rs.12,00,000/- was due and payable by the petitioners to the respondent from the final bills. The respondent No.2, however, expresses his inability to pay and it was settled that the said amount will be paid to the petitioner as and possible and latest upon the completion of the "price variation claim" PVC claim proceedings initiated against the Employer. The petitioner agreed to the same and in good faith and in the light of amicable settlement between the parties.

7. The petitioner was informed about the matter having been decided in favour of the respondents and an amount of Rs.88,59,790.00 being released in favour of respondent No.1. The petitioner share of monies came to Rs.57,58,350.00 from the amount received by respondent No.2 which was 65% of Rs.88,59,790.00 and the balance amount of Rs.12,00,000.00 from the final bills.

8. A Legal Notice dated 15th June, 2020 was served upon the respondents seeking the amount but the respondent vide email dated 24th June, 2020 denied the petitioner's claim on the basis of limitation.

9. It is claimed that the aforesaid amounts became due and payable to the petitioner only towards the end of 20