ORDER
Dipak Misra, J.
1. These civil revisions being interlinked and interconnected were heard analogously and disposed of by this common order.
2. The facts which are requisite to be stated for disposal of the aforesaid Civil Revisions are that four separate contracts for collection of raw material on Jabalpur Nagpur Road, National Highway No. 7 in certain Kms. were awarded to one Late B.P. Sangel and accordingly four separate work orders were issued in his name. Stipulated period for completion of the work was six months. The contractor had completed the works in the stipulated period but payments were not made by the owner to him. B.P. Sengal breathed his last on 5-1-1982 and thereafter his son R.P. Sangal filed four reference petitions regarding the claims arising under those agreements before the M.P. Arbitration Tribunal (for short 'the Tribunal'). Before the Tribunal claims were put forth on various heads. The owner resisted the claims by entering into the contest and raised preliminary objection with regard to limitation. The Tribunal treated the application to be one under Order 7 Rule 11 of the Code of Civil Procedure and came to hold that the claims were barred by limitation and accordingly rejected the same.
3. It is noteworthy to state here that the Tribunal referred to Clauses 9, 14 and 19 of the agreements executed by the contractor. The Clause 19 being relevant for our present purpose is reproduced below:--
'The decision of the Superintending Engineer for the time being shall be final conclusive and binding on all parties to the contract upon all questions relating to the meaning of specifications hereinbefore mentioned and as to quality of materials or as to any other question, claim, right matter or thing whatsoever in any way arising out of, or relating to the contract specification, instruction, orders or these conditions or otherwise concerning the supplies whether arising during the progress of delivery or after the completion or abandonment thereof.'
4. The Tribunal eventually in Paras 11 to 13 held as under:--
'11. M.P. Madhyastham Adhikaran Adhiniyam, 1983 came into force from 1-3-1985 and the M.P. Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 came into force from 24-4-1990. In case of Sanjay & Co. v. State of M.P., 1994 A.T.L.R. 335, it has been held that this Tribunal was not brought into existence to revive the time barred claims and only those claims could be entertained by the Tribunal under Section 7 of the Adhiniyam which were not already time barred under the Limitation Act. It is correct to say that the Adhiniyam originally did not contain any provision with regard to limitation for making a reference petition. It was however, introduced by the Amendment Act No. 9 of 1990 by inserting Section 7-B in the Adhiniyam and thus, there was no prescribed period of limitation under the Adhiniyam till the introduction of Section 7-B at the same time it should be remembered that this Adhiniyam was not enacted to provide a remedy for those time barred claims for which remedy in the Civil Court or before the Arbitration had become lost due to expiry of limitation. In the present case the provisions of Section 7-B of the Adhiniyam are not applicable because the claims had already become time barred under the Limitation Act, 1963 which applied at that time. This view was followed by this Tribunal in Ref. Cases No. 57/91 and 58/91, Ram Murti Tah. v. State of M.P., decided on 31-3-1995. Cases cited before apply squarely to the present cases and, therefore, we are also inclined to hold that all these reference petitions are not maintainable in this Tribunal because the claims arising out of all the four contracts had already become time barred as back as in the month of January, 1978, long before the enforcement of the Amendment Act 9 of 1990.
12. It is contended on behalf of the petitioner that the matter remained pending before the department for years together and ultimately the. S.E. through letter (Annexure P-6), dated 21-5-1992 directed the E.E. to settle the claims of the petitioner and consequently, the E.E. through the letter dated 29-5-1992 (Annexure P-4), decided the claims of the petitioner. Thereafter, the petitioner submitted his quantified claims to the S.E. on 17-5-1993 Annexure P-5 which was still pending and, therefore, the claims of the petitioner are not barred by time. We are unable to agree with the contention put forward by the petitioner. As stated above the letters cited by the petitioner neither give any fresh cause of action or right to sue to the petitioner nor it was necessary under the contract to refer the dispute first to the S.E. before taking legal action. There is no such arbitration clause under the present agreements requiring the petitioner to refer the dispute to the final authority.
13. Statement of account (Ex. P-4, dated 29-5-92) prepared by the E.E. and sent to the petitioner can not be regarded as an acknowledgment under Section 18 of the Limitation Act, 1963 for starting a fresh period of limitation because the acknowledgment must be made before the expiry of the prescribed period of limitation for a suit on an application in respect of such property or right. As stated above the period of limitation has already expired in the year 1978, and, therefore, no benefit can be given to the petitioner under Section 18 of the Limitation Act regarding this statement of account.
This statement can not be regarded as to promise to pay also under Section 25(3) of the Indian Contract Act because it is only a unilateral offer regarding a very small amount in comparison to that which has been claimed by the petitioner. This offer was never accepted by the petitioner and he turned down the offer by not accepting this small amount offered to be paid by E.E. Under such circumstances, mere offer made by the E.E. could not take the shape of an agreement giving rise, to a fresh period of limitation. We may refer the case of Bishun v. Girdharilal, AIR 1934 P.C. 147. In this case, it is stated about taking of accounts that it must be a bilateral act of the parties so that it may create a new debt and a new cause of action. There must be mutual promises, the one side agreeing to accept the amount of balance of the debts as true and to pay it, the other side agreement the entire debts at a certain figure and then agreement that it has been discharged to such and such an extent so that there will be complete satisfaction on payment of the agreed balance. Hence there is mutual consideration to support the promises on either side and to constitute new cause of action.
In our opinion the offer given by the E.E. could not take the shape of an agreement, and, therefore, this offer can not be regarded as to promise to pay also.'
5. Mr. Kishore Shrivastava, learned Counsel appearing for the petitioner has submitted that the Tribunal has grossly erred by not entertaining the claim of the petitioner inasmuch as the Superintending Engineer vide Annexure P-6, dated 21-5-1992 had issued a direction to the Executive Engineer to settle the claim of the petitioner and subsequently the Executive Engineer vide letter dated 29-5-1992 (Ex. P-4), decided the claims of the petitioner and being aggrieved by such decision the petitioner sought intervention of the Superintending Engineer on 17-5-1993, Annexure P-5 and as the same was not adverted to apprehending that these claims would become untenable due to delay, he approached the Tribunal. Submission of Mr. Shrivastava is that finding by the Tribunal that Section 7-B of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (for short 'the Act') is not applicable, is absolutely unsound and unsustainable inasmuch Clause 19 of the agreement is of immense significance and, therefore, the finding recorded by the Tribunal that the dispute could not have been referred to the superior authority, is vulnerable. It is urged by him that finding recorded by the Tribunal that communication, vide Annexure A-4 did not save the limitation as it was unilateral is incorrect. Criticising the finding on preliminary objection Mr. Shrivastava submitted that the contractor should have been permitted to lead evidence to show that claims put forth were within the period of limitation and in the absence of that the Tribunal should have not recorded a finding treating the claims to be barred by time.
6. Mr. Om Namdeo, learned Government Advocate contended that claims had attained finality in the year 1978 and the Act was not enacted to revive stale claims and, therefore, the Tribunal was absolutely justified in rejecting the claims put forth by the claimant. The learned Counsel for the State canvassed that Clause 19 should not be tendered more leverage than it deserves.
7. At the very outset we must make it clear that had the authorities not issued the letter as contained in Ex. P-4, the matter would have been totally different. We are inclined to think so as this Court in the case of Secretary, State of M.P., Irrigation Department, Bhopal and Ors. v. Jaswant Singh Dhillon, 1999 M.P.LJ. 122 = 1999 Arb.W.L.J. 654 (MP) has ruled as under :--
'On perusal of Sub-section (5) it is graphically clear that the Tribunal has to be satisfied if a reference is fit case for adjudication. If the claims are barred by time the question dealing with the said category of claims for purpose of adjudication is an exercise in futility. The Tribunal a statutory forum, was not established or brought into existence to give a new lease of life to already time barred claims. The purpose of the Adhiniyam was not to imbibe a life-spark to the dead claims and make them come alive like a phoenix. If the claims were barred by time under the Limitation Act, 1963 and the right to agitate those claims had been extinguished under the remedies which were in vogue before the Adhiniyam came into force, the same can not be allowed to revive. If the claims are ex facie barred by time, they are not to be entertained in the case at hand, as is apparent from the order of the Tribunal the application under Section 20 of the Act was filed on 24-4-1982. Thus, the disputes with regard to claims are arisen prior to that date. Even if laxity is granted, it can not be extended beyond that date. In the proceeding under Section 20 of the Act of District Judge directed for the appointment of arbitrator. For some reason or the other it was not done. Thereafter an application under Section 8 of the Adhiniyam was filed. We are not going to comment whether such an application was maintainable or not. The fact remains that the District Judge, Durg by an order dated 19-7-1985 held that he had no jurisdiction and returned the application for proper presentation. It may be construed that by that time the claims were alive in law deserving to be adjudicated. The claimant chose not to challenge that order. He also did not approach the Tribunal immediately. As per the decision rendered in the case of Chalhal and Co. (supra) the proceeding before the Civil Court relating to application for appointment of arbitrator was save. Though the order was passed on 19-7-1985 the claimant accepted the same. He filed the reference application under Section 7 (i) of the Adhiniyam before the Tribunal on 13-7-1988. The Tribunal opined that the Limitation Act did not apply and by that time Section 7- B was not in force, hence the petition could not be held to be barred by time. The approach is obviously erroneous. As has been stated earlier the Tribunal was not brought into existence for revival of the time-barred claims. What happened before the District Judge, Durg is of no consequence as the petitioner conceded to the said order. Thus, it can safely be concluded that the claimant approached the Tribunal for the first time on 13-7-1988. As the fact situation upholds the disputes have arisen in the year 1982 and they are obviously barred by time. At this juncture we may observe that an application under Section 20 of the Adhiniyam, the Court is required to see that difference or dispute had arisen between the parties. There are two aspects, namely whether there is any valid claim of reference under Section 20 and whether the application was filed within time. Ordinarily the second aspect is to be decided by the Arbitrator. In this context, we may profitably refer to the decision rendered in the case of Wazb Chand Mohajan v. Union of India, AIR 1967 SC 990, wherein it has been laid down as follows :--
'There is no doubt that Clause (1) of Section 37 of the Arbitration Act deals only with the authority of the arbitrator to deal with and decide any dispute referred to him; if has no concern with an application made to the Court to file an arbitration agreement and to refer a dispute to the arbitrator. After an agreement is filed in Court and the matter is referred to the arbitrator, it is for the arbitrator to decide by the application of the law contained in the Limitation Act, whether the claim is barred. But Section 37 (1) does not confer authority open the Court to reject the application for filing of an arbitration agreement under Section 20 of the Arbitration Act because the claims is not made within three years from the date on which the right to apply arose, In dealing with an application for filing an arbitration agreement, the Court must satisfy itself about the existence of a written agreement which is valid and subsisting and which has been executed before the institution of any suit, and also that a dispute has arisen with regard to the subject matter of the agreement which is jurisdiction of the Court. But the Court is not concerned in dealing this application to deal with the question whether the claim of a party to the arbitration agreement is barred by the law of limitation that question falls within the province of the arbitrator to whom the dispute is referred.'
Thus, the Apex Court has held whether the claims are barred by law of limitation or not, are to be adjudicated by the arbitrator, but whether the application under Section 20 of the Act is barred by limitation or not, is within the domain of the Court. In this context, we may profitably refer to the decision rendered in the case of Union of India v. A.K. Ahuja and Co., AIR 1988 SC 1172, wherein the Apex Court laid down the following principles :--
'8. In view of the well-settled principals we are of the view that it will be entirely wrong to mix-up the two aspects, namely whether there was any valid claim for reference under Section 20 of the Act, and secondly, whether the claim to be adjudicated by the arbitrator, was barred by lapse of time. The second is a matter which the arbitrator would decide unless, however, if on admitted facts a claim is found at the time of making an order under Section 20 of the Arbitration Act, to be barred by limitation.'10. The purpose of referring to the aforesaid decisions is that, at the time of seeking reference under the Act of Court is required to be whether the application is within time or not. To elaborate, whether the right to sue on the foundation of cause of action is still alive or not. It is to be borne in mind that, it is the duty of the Court not to proceed with an application if it is beyond the period of limitation. In this context, we may refer to the decision rendered in the case of M.L. & B. Corporation v. Bhutnath, AIR 1964 1336, wherein Their Lordships have registered the view as under;--
'Under Section 3 of the Limitation Act, it is the duty of the Court not to proceed with the application if it is made beyond the period of limitation prescribed. The Court has no choice.'In the case at hand, as has been indicated earlier the dispute arose in 1982. The proceedings taken by the claimant- respondent were given a go by at his instance as he acquiesced the acceded to the order passed by the District Judge. In effect, he approached the Tribunal for the first time in 1988 for adjudication of his claims. The Tribunal on an erroneous assumption of law that it could entertain any claim in absence of prescription of limitation, adjudicated the claims. But by the time, the claimant knocked at the doors of the Tribunal, his claims ex facie, were barred by time as per his assertion dispute had arisen way back in 1982. This factual portion is perceptible from the order of the Tribunal itself. If the claims were not entertainable or no more available to be remedies, the Tribunal, a statutory Forum which had come into existence under the Adhiniyam could not have decided the claims on the ground that no period of limitation had been prescribed to approach the Tribunal. Such a conclusion would lead to a chaos and bring in unwarranted and uncalled for results for the simple reason, claims which were decades old could have been entertained before Section 7-B had come into force. Every Forum comes into being with a purpose and indubitably that was not the purpose when the Tribunal was established. By 1988 the claimant could not have approached the Civil Court or taken any steps for realization of his dues by any adjudicatory process. Establishment of the Tribunal could not have conferred a new lease of life on the dead and frozen claims. The Tribunal has fallen into grave error by holding that the law of limitation did not hinder the jurisdiction of the Tribunal.'
8. We have referred to the aforesaid aspect in detail only to indicate in the aforesaid case this Court dealt with the conception of delay when there was no prescription of limitation. This Court applied the principle of limitation. In the instant case the Superintending Engineer had directed the Executive Engineer to settle the claims. The Executive Engineer in terms of the said letter, vide Ex. P-4, letter dated 29-5-1992, referred to the pendency of the claims pertaining to four agreements entered into between the State Government and B.B. Shankar. Thereafter the authority scrutinized the claims in detail and after verification of the records partially allowed the claims.
9. On a perusal of the aforesaid documents, it is perceptible that a copy has been forwarded to the Superintending Engineer. The letter was intimated at the instance of Superintending Engineer. As is manifest the petitioner was not satisfied by the delineation of his claims by Executive Engineer. In view of the aforesaid, he sought indulgence of the Superintending Engineer on 17-5-1993, but no action was taken. He approached the Tribunal on 7-7-1993. The sole question that arises for consideration is whether such a reference could have been made to the higher authority so as to take shelter of the limitation provided under Section 7-B of the Act. To appreciate the factual matrix in proper perspective it is seemly to refer to Section 7-B (1) of the Act which reads as under :--
'(1) The Tribunal shall not admit a reference petition unless :--
(a) the dispute is first referred for the decision of the final authority under the terms of the works contrary, and
(b) the petition to the Tribunal is made within one year from the date of communication of the decision of the final authority:
Provided that if the final authority fails to decide the dispute within a period of six months from the date of reference to it, the petition to the Tribunal shall be made within one year of the expiry of the said period of six months.'
10. Mr. Kishore Shrivastava has contended that by the decision which was taken by the Executive Engineer the claim of the petitioner was allowed in a partial manner. Though the petitioner sought intervention of the final authority, there was a golden silence and hence the petitioner had no option but to approach the Tribunal. The Tribunal has already held that there was no such provision in the agreement to refer to the highest authorities. To appreciate the same it is appropriate to refer to Clause 19 of the agreement. On a perusal of Clause 19 we are of considered view that it covers the decision of the higher authority. The words used in the said clause are of wide amplitude and in its proper construction would cover the decision of final authority.
11. In view of the abovesaid analysis we are of the considered opinion that the order passed by the Tribunal is liable to be set aside and accordingly we so direct. The matter is remitted to the Tribunal to be decided afresh on merits. The only thing we clarify that the claims which had not been raised before the Executive Engineer, can not be raised before the Tribunal as they are barred by limitation.
12. The revisions are allowed to the extent indicated above. There shall be no order as to costs.