[2023/RJJD/004996]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Arbitration Application No. 21/2020

M/s Kamla Construction Company, Registered Partnership Firm

1-D-81, Jainarayan Vyas Colony, Tehsil And Dist. Bikaner.

----Petitioner

Versus

Rajasthan Rajya, District Collector, Bikaner.

----Respondent

For Petitioner(s)

:

Mr. Pradeep Choudhary.

For Respondent(s)

:

Mr. Saransh Vij for Mr. Sudhir Tak, AAG.

HON'BLE MR. JUSTICE ARUN BHANSALI

Order

10/02/2023

This application under Section 10 and 11 of the Arbitration

and Conciliation Act, 1996 (‘the Act’) has been filed by the

applicant seeking reference of dispute between the parties to

Arbitrator.

It is inter alia indicated that the applicant was issued a work

order dated 1.1.1996 for manufacture and supply of 20 lakh first

class bricks and an agreement No.7/1995-1996 was executed in

this regard. As per the order and contract, the work was to

commence from 16.1.1996 and was to be concluded in 12 months

i.e. by 15.1.1997.

It is claimed that the applicant earnestly commenced

implementation of the work order and supplied 20 lakh bricks by

31.10.1996, however, another order dated 31.10.1996 was issued

to the applicant for supply of additional 20 lakh bricks and based

[2023/RJJD/004996]

(2 of 6)

[ARBAP-21/2020]

on the said quantity, it was expected that the contract would be

extended till 15.1.1998.

It is then indicated in the application that for various reasons

on account of rains etc. instead of 40 lakh bricks, the applicant

was required to manufacture 45.50 lakh bricks, however, the

applicant was not made full and final payment by the respondents

in terms of Clause-10(a) of the agreement. It is claimed that on

account of delayed payment, the applicant is entitled for interest

on the outstanding payment.

It is then indicated that in terms of Clause-19 of the

agreement, any question, difference or objection in connection

with the agreement was to be referred to a sole arbitrator to be

appointed as per the procedure prescribed, based on which, the

applicant issued a notice dated 5.3.2020, however, as the

respondents have not followed the procedure prescribed under

Clause-19, they have lost the right to appoint arbitrator and,

therefore, a sole arbitrator be appointed.

A reply to the application has been filed by the respondents

inter alia with the submissions that the petitioner did not complete

the work in the stipulated time period i.e. 31.3.1997 and there

was a delay of more than a year in execution of the work order

and, therefore, the petitioner is not entitled to any relief.

Further submissions have been made that the applicant was

lying in the state of slumber as the dispute pertains to the year

1998 and the present application has been filed in 2020 after

issuing notice. The claim made is ex-facie barred by limitation

even as per Article 137 of the Limitation Act, 1963 and, therefore,

the application deserves dismissal.

[2023/RJJD/004996]

(3 of 6)

[ARBAP-21/2020]

No rejoinder to the reply has been filed.

Learned counsel for the applicant made submissions that the

claim made by the applicant is genuine, wherein, the respondents

have not made payment of huge outstanding amount to the

applicant and not only this, even the final bill has not been

prepared and, therefore, the plea raised pertaining to the claim

being barred by limitation has no substance. It was emphasized

that as the final bill has not been prepared so far, it cannot be said

that the claim is barred by limitation so as to seek dismissal.

Further submissions have been made that it is well settled

that the issue pertaining to the limitation has to be considered by

the arbitrator and this Court while examining the matter under

Section 11 of the Act, cannot determine the aspect of limitation.

Reference in this regard has been made to judgments in

Duro Felguera. S.A. v. Gangavaram Port Lim