The limitation period for filing an application under S. 8(2) of the Arbitration Act runs from the expiry of fifteen days from the date the aggrieved party issues notice to the authority mentioned in the arbitration clause for appointment of an arbitration.

D. P. MOHAPATRA, J.

( 1 ) THE short question that arises for consideration in this revision petition is whether the application filed by the petitioner under S. 8 (2) of the Arbitration Act ( for short 'the Act') for appointment of an arbitrator to adjudicate the disputes is barred by limitation. The trial Court having answered the question in the affirmative, the petitioner has moved this Court in revision challenging the said order.

( 2 ) THE facts relevant for the present proceeding may be shortly stated thus : The petitioner was entrusted with the work of construction of "s/r to approach road of Budhabalanga Bridge on 54th Mile of S. N. K. U. B. Midnapur Border Road - MDR 5 for 1974-75. " The parties executed an agreement bearing No. 92/f2 of 1974-75 for the purpose. After completion of the work, the amount under the final bill was paid to the petitioner on 30th July, 1978. The amount mentioned therein having fallen short of his claims, the petitioner is said to have represented to the authorities for paying him the balance dues. Having failed in his attempt to get his dues settled amicably, the petitioner issued a notice on 29-7-81 to the Chief Engineer (R. and B.), Government of Orissa, for appointment of an arbitrator as contemplated under Cl. 23 of the agreement. The notice having received no favourable response from the said authority, he filed the application under S. 8 (2) of the Arbitration Act before the Subordinate Judge, Baripada on 23-12-81 praying to appoint an arbitrator.

( 3 ) THE application was contested by the opposite parties on several grounds including the plea of limitation. It is not necessary to go into other grounds of challenge since they were negatived by the Court below. As noticed earlier, the sole ground on which the application was rejected was the plea of limitation. The Court below referring to several decisions of the Supreme Court and other High Courts held and rightly, that Art. 137 of the Limitation Act applies to proceedings under the Arbitration Act. On consideration of the facts of the case, the Court held that since the final bill was paid in July, 1978 the application under S. 8 (2) of the Act having been filed on 23-12-81, it was beyond the prescribed period of limitation (three years) and therefore barred.

( 4 ) THE learned counsel for the petitioner has challenged the aforesaid finding. According to him it is based on misconstruction of the provisions under Art. 137 and erroneous impression of the law on the point.

( 5 ) THE finding regarding applicability of Art. 137 of the Limitation Act is not in controversy between the parties. The core question to be considered is when does the right to apply accrue or, in other words when does limitation commence to run in respect of the application under S. 8 (2) of the Act. It is pertinent to note here that there is a clear distinction between the plea that the claims raised are barred by limitation and the plea that the application for appointment of arbitrator is barred by limitation. The former question is to be considered by the arbitrator while the latter is to be considered by the Court at the time of disposing of the application for appointment of arbitrator. The question that arises for consideration in this case is no longer res integra. Identical question was considered by this Court in the case of Ghaneshyam Behera v. Orissa State Co-operative Marketing Federation, (1984) 1 Orissa LR 581, where it was observed as follows :"it is not in dispute that in any of the cases falling under Cls. (a), (b) and (c) of sub-sec. (1) of S. 8 of the Arbitration Act any party may serve the other parties with a written notice to concur in the appointment of Arbitrator, sub-sec. (2) of Sec. 8 provides that if the appointment is not made within 15 clear days after service of the said notice, the Court may, on the application of the party who gave the notice and after giving the other parties an opportunity of being heard, appoint an arbitrato