Dipak Misra, J.
1. As both the civil revisions arise from a common award dated 27-10-93 passed in reference case No. 36/98 by the Madhya Pradesh Arbitration Tribunal in a reference under Section 7(i) of the M. P. Madhyastham Adhikaran Adhiniyam, 1983 (hereinafter referred to as 'the Adhiniyam'), they were heard analogously and are disposed of by this common order. The functionaries of the State have assailed the award in Civil Revision No. 54/94 and the claimant-contractor has questioned the pregnability of the same in Civil Revision No. 73/94.
2. The facts as have been unfurled are that the claimant filed the aforesaid reference before the Tribunal for recovery of Rs. 2,99,606,49 in relation to claims arising out of work contract No. 1 SI DL of 1980-81 dated 25-11-80. The aforesaid agreement was executed for construction of 'Matia Moti Nallah Tank' for the earth work on the main bandh, from Ch. 16 to 22 in Mahanadi Godawari Basin, Raipur. The probable amount of contract was Rs. 10 lacs and the quoted rate of the respondent-petitioner therein was 2.76% above UCSR. The stipulated period of contract was eight months and the work order was issued on 25-11-80. Extensions were granted to the claimant-respondent herein and the last extension was granted up to 31-5-82 by reserving the right to impose penalty for delay in performance of contract. While the work was in progress the work of compaction and watering was withdrawn from the respondent-contractor for which he filed an application under Section 20 of the Indian Arbitration Act, 1940 (hereinafter referred to as 'the Act') in the Court of the learned District Judge, Durg who appointed a Commissioner for recording the measurements and directed the State Government to appoint an arbitrator under the agreement for settlement of disputes. But no action was taken by the State Government. The respondent, thereafter, filed an application for appointment of the arbitrator by the Court under Section 8 of the Act. The learned District Judge vide order dated 19-7-85 held that by virtue of Section 20 of the Adhiniyam the Civil Court had no jurisdiction and directed the respondent to approach the Tribunal. Thereafter, the claimants-respondents approached the Tribunal in the year 1988. The case of the respondents before the Tribunal was that the authorities of the State failed to supply the requisite designs, drawings and 'L' Section etc.. It was also alleged that the carrying out of work was not possible during the rainy season and the cut off trench excavated by the contractor-respondent was filled with water and slit. It was further alleged that there was no adequate arrangement for de-watering afterrainy season. He resumed the work in cut off trench but met with a peculiar type of strata and it was desired that the depth of cut off trench be determined afresh in consultation with Geologist. Accordingly the extra items of work, namely, construction of boulder toe and compaction and watering of earth were not within the scope of agreement, were included in the agreement by mutual consent of the parties. However, the work of compaction and watering later on was illegally and arbitrarily withdrawn by the authorities of the State Government. Owing to this illegal withdrawal the respondent could not complete the contract work within the stipulated time and the extended period. On the aforesaid grounds the imposition of penalty by the owner was assailed. It was also putforth before the Tribunal that the agreement quantities exceeded and the rates of extra items were revised by the owner but the same was not acceptable to the claimants. The (sic)nal bill of Rs. 1,98,019/- was prepared. But it did not include the extra items of work and the payment for the work of compaction and watering etc.. It was also alleged that final bill was also reduced to Rs. 42,742/- for no apparent reason. It was also setforth before the Tribunal that the State Administration allotted the balance work to the other agencies without recording the measurements of the respondent-contractor which was unjustified. It was also pleaded that the work executed by the respondent in cut off trench was not measured. Making such averments the claimants putforth a claim for a sum of Rs. 2,99,606,49.
3. The claim putforth by the claimants-respondents was resisted by the present petitioner before the Tribunal by filing a reply denying all the allegations and contending that the claimant was supposed to complete the 90% of the contractual work before rainy season but he could hardly execute the work to the extent of 10% only which clearly reflected the slow progress of work on the part of the contractor due to lack of efficiency, technical supervision and laxity. It was also setforth that the strata in question was inspected by the concerned Geologist without any delay and the claimant was advised to dig more so as to reach the designed bottom levels but he failed to achieve the foundation levels of cut-off trench and abandoned the work after November, 1981. It was for these reasons that work of compaction and watering was withdrawn from the claimant. It was further pleaded that the Measurement Books revealed that the respondent did not execute any extra quantity or any extra item of work. It was also putforth that for the changed strata the claimants had been paid as per UCSR rates under Clause 4.3.13.3(b) of the agreement, It was setforth by the owner that initially the final bill was wrongly prepared by the SDO but when t he dispute was raised by the contractor the measurement was done again by the team of engineers in presence of the claimant and final bill was prepared but he refused to accept either the measurements or the bills. In these circumstances, the claimant abandoned the work and the Balance work was allotted to Debitable Agency for which extra cost of Rs. 3,24,014.80 was made and the same was to be recovered from the claimant along with the cost of Rs. 13,029/- incurred for removal of silt from the cut off trench. After reduction of the amount from final bill payable to the petitioner i.e. Rs. 46,767/- a sum of Rs. 2,90,301,80 along with interest still remained to be recovered from him, which was duly claimed by way of counter claim.
4. It is to be noted here that before the Tribunal the present petitioner took preliminary objections about the maintainability of the claim petition on three grounds, namely, the jurisdiction of Tribunal was barred under Section 20(2) of the Adhiniyam; the petition was barred by limitation, and claims were not quantified before the Superintending Engineer as enjoined under Clause 4.3.29.1 of the agreement, and hence the condition-precedent was not satisfied.
5. The Tribunal before adverting to deal with the merits of the claims addressed itself to the preliminary objections raised by the respondents therein. The first preliminary objection pertains to the bar as envisaged under Section 20(2) of the Adhiniyam. The Tribunal after discussing the law governing the field held that the Tribunal had jurisdiction to adjudicate the lis brought before it. As regards the issue of limitation the Tribunal relied on its earlier judgments and came to the conclusion that there being no provision in the Adhiniyam prescribing limitation within which a party has to refer its dispute in the Tribunal before the provision under Sectipn 7-B was inserted in the Adhiniyam the reference petition could not be held to be barred by law of limitation. Dealing with the third preliminary objection that the claimants had failed to comply with the Clause 4.3.29.1 of the agreement, the Tribunal observed that the claimant had quantified his claim and referred the same to the decision before the S. E. as per Ex. P/25 dated 30-5-93 and Ex. P/ 26 dated 1-2-84, and hence he had complied with the requirement of the stipulation in the agreement. After overruling the preliminary objections raised by the respondents therein the Tribunal allowed some of the claims and eventually came to hold that the claimant was entitled to a sum of Rs. 48,184/-.
6. Assailing the aforesaid award, Mr. P. D. Gupta, learned Government Advocate for the State has contended that the Tribunal has erred in law in holding that it had jurisdiction to deal with the claims of the claimants though it stood barred under Section 20(2) of the Adhiniyam. He has strenuously urged that the Tribunal has grossly erred in rejecting the plea of limitation. The learned Govt. Advocate has, however, submitted that if the aforesaid pleas are negatived then the plea with regard to non-compliance of the Clause 4.3.29.1 of the agreement would not hold good and acceptance of certain claims by the Tribunal would be unassailable. In view of the aforesaid submission, we would only address ourselves to the aforesaid two issue. It is worth-noting here that in spite of notice there has been non-appearance of the claimant-respondent.
7. We shall deal with the first contention first. It relates to operational sphere of Section 20(2) of the Adhiniyam. To appreciate the aforesaid submission of the learned Govt, Advocate, it is essential to refer to Section 20 of the Adhiniyam. It reads as under :
20. Bar of jurisdiction of Civil Court--(1) As from the date of the constitution of the Tribunal and notwithstanding anything contained in Arbitration Act, 1940 (No. 10 of 1940) or any other law, for the time being in force, or in any agreement or usage to the contrary, no civil Court shall have jurisdiction to entertain pr decide any dispute of which cognizance can be taken by the Tribunal under this Act.
1-A. Notwithstanding anything contained in Sub-section (1), a Civil Court may entertain and decide any dispute of the nature specified in the said sub-section referred to it by a person in the capacity of indigent person.
(2) Nothing in Sub-section (1) shall apply to any arbitration proceeding either pending before any arbitrator or umpire or before any Court or authority under the provisions of the Arbitration Act, or any other law relating to arbitration, and such proceedings may be continued, heard and decided in accordance with agreement or usage or provision of Arbitration Act or any other law relating to arbitration in all their stages, as if this Act has not come into force.'
On a bare reading of the aforesaid provision, it is amply clear that though Sub-section (1) creates a bar of jurisdiction of the Civil Court, Sub-section (2) carves out certain exceptions. Sub-section (1) has not been made applicable to the arbitration proceedings either pending before any Tribunal or before any Court or authority under the provisions of the Arbitration Act or any other law relating to arbitration and such proceedings are allowed to continue. They are required to be heard and decided in accordance with agreement or usage and provisions of Arbitration Act or any other law relating to arbitration in all their stages. The question whether the proceedings were saved or not, would depend upon the factual matrix and the nature of the proceedings. The Tribunal has referred to the facts in paragraph 6.4 which exposit that the agreement was executed on 25-11-80. An application under Section 20 of the. Act was moved before the District Judge, Durg on 24-9-82 and the orders on the said application were passed on 6-8-83 vide Ex. D/31 ordering the appointment of arbitrator by the State Government as provided in Clause 4.3.29.1of the agreement. No arbitrator was appointed by the State Government. Thereafter an application vide Ex. D/32 under Section 8 of the Act was preferred by the claimants on 15-6-84. The Adhiniyam came into force with effect from 1-3-85, After the Adhiniyam came into force the District Judge, Durg vide order dtd. 19-7-85 (Ex. P/31) held that in view of the provisions contained in Section 20 of the Adhiniyam the Civil Court had no jurisdiction and, accordingly, he returned the application vide Ex. P/30 for presentation before the proper Court. The Tribunal referred to the decision rendered in the case of M/s Spendra Engineering Corporation, Engineers and Contractors, Bhopal v. State of M.P., AIR 1988 Madh Pra 111 and has come to the conclusion that when the arbitrator is appointed to take any step towards proceedings then only the arbitration proceedings can be said to be pending. On the aforesaid premises the Tribunal arrived at the conclusion that the proceedings initiated before the Civil Court for appointment of arbitrator under Section 20 and Section 8 of the Indian Arbitration Act prior to commencement of the Adhiniyam were not saved Under Section 20(2) of the Adhiniyam; and the Tribunal has jurisdiction to adjudicate the controversy in question. On a reading of the order passed by the Tribunal, it is graphically clear that the foundation of the Tribunal's conclusion is based on the law pronounced in M/s. Spendra's case. The aforesaid decision no more holds the field in view of the Full Bench decision of this Court rendered in the case of State of M. P. v. Chahal and Co., 1995 MPLJ 885 wherein this Court has held that an application under Sub-section (1) of the Section 20 of the Act which was pending in any Court prior to the date of constitution of the Arbitration Tribunal i.e. 1-3-85 would be saved by Subsection (2) of Section 20 of the Adhiniyam. We may profitably re-produce the view registered by this Court:
'An application under Section 20 of the Arbitration Act pending in the Civil Court prior to the date of constitution of Arbitration Tribunal i.e. 1-3-1985, is saved by the provision of Section 20(2) of M. P. Madhyastham Adhikaran Adhiniyam, 1983. After the Tribunal had already come into existence on and from 1-3-1985, any such application under Sub-section (1) of Section 20 of the Arbitration Act will be barred as it would be embarrassed within the sweep of the language of the Adhiniyam barring the jurisdiction of the Civil Court from taking cognizance of any dispute of which cognizance can be taken by the Tribunal.'
(Quoted from the placitum)
Thus, in essence, view of this Court is that ifsteps were taken for appointment of arbitrator,that would amount to be a matter pending in anyCourt for the purpose of arbitration proceedings.
8. Thus, the proceeding initiated by the claimant before the Civil Court was saved under Section 20(2) of the Adhiniyam and there was no justification on the part of the claimant to accede to the order passed by the District Judge whereby he returned the application for presentation before the appropriate Forum. However, from this it cannot be inferred that the Tribunal's jurisdiction was barred to entertain the dispute. What is really barred is the jurisdiction of the Civil Court to entertain or decide any dispute of which cognizance can be taken by the Tribunal under this Adhiniyam. Sub-section (2) of Section 20 of the Adhiniyam saves certain categories of proceedings. If a party to an agreement has not taken recourse to the Civil Court it could approach the Tribunal within the established parameters of law. When the learned District Judge returned the petition under a misconception that that he had no jurisdiction, the petitioner could have approached the Tribunal but such an approach would have been made as envisaged under the Adhiniyam and as permitted under the parameters as prescribed under the existing law. The effect and impact of the acquiescence by the claimant shall be dealt by us when we will be addressing ourselves to the preliminary objection relating to limitation.
9. The second limb of submission of Mr. Gupta is that the proceeding before the Tribunal was barred by limitation. As has been stated earlier the disputes had arisen on 24-4-82 vide Ex. D-31. The District Judge, Durg had directed for appointment of an arbitrator vide order dated 6-8-83. When no arbitrator was appointed application under Section 8 was moved again on 15-6-84 and it was returned by the District Judge on 19-7-85. Thereafter petition was filed on 13-7-88. The Tribunal has entertained reference application on the ground that no limitation was prescribed under the Adhiniyam when it came into force, but later on, under Section 7-B of the Adhiniyam provisions relating to limitation were inserted. It has been held by the Tribunal that in absence of any prescription for limitation under the Adhiniyam at the time of presentation of the application for reference the reference petition could not be held to be barred by time. The Tribunal has referred to a number of decisions rendered by it. The real crux of the matter is whether the cause of action was still alive to be agitated before the Tribunal and whether the claims of the claimant were time barred, and hence not entertainable under Section 7-B of the Adhiniyam. It is to be borne in mind that in the principal Act which came into force on 1-4-85 there was no provision prescribing a period of limitation for filing of reference petition in the Tribunal. The said provision was introduced into the Adhiniyam by M. P. Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 (Act No. 9 of 1990). By virtue of the said amendment, Section 7-B was incorporated into the Statute Book. Thereafter by M. P. Act No. 36 of 1995 which came into force from 15-12-95 Sub-section (1) of Section 7-B has been substituted. In the case at hand, it has been held that, by the time the reference application was presented, Section 7-B was not therein in the Adhiniyam but a significant but, whether the petitioner could approach the Tribunal for agitating his grievance relating to his claims. The Adhiniyam was enacted initially with an object to provide for the establishment of a Tribunal to arbitrate the disputes to which the State Government or a Public Undertaking is a party and for the matters incidentally thereto or connected therewith. Later on, by amendment by Act No. 9 of 1990 the Public Undertaking was qualified by adding wholly or substantially owned or controlled by the State Government. Thus, the purpose of establishment of the Tribunal was for adjudication or resolving of disputes. The term 'disputes' has been defined under Sub-section 2(1)(d) of the Adhiniyam. The scheme of the Act makes it quite clear that the Tribunal was brought into existence for resolving the disputes or the differences pertaining to works contract. But the disputes must be the disputes and they must survive in law for determination. The Tribunal was brought into existence as a statutory forum for determination of the disputes. True it is, there was no provision providing a period of limitation to approach the Tribunal. To clear the area and to provide certain condition-precedents as well as certain guidelines for entertainment of disputes, Section 7-B was engrafted for providing the starting point of limitation. It is to be noted that under Section 7-B the Tribunal has not been conferred with power to condone the delay if the claims are not preferred by way of filing of reference petition within the time-frame stipulated therein. In the case at hand, Section 7-B is not applicable inasmuch as the reference petition was filed much before the amendment had come into existence. The Tribunal has referred to a catena of its decisions to hold that the reference petition could not be held to be barred by time in absence of prescription of period of limitation under Section 7(i) of the Adhiniyam. Filing of application before the Tribunal is nothing but an application for adjudication. In this context, we may refer to Section 7 occurring in Chapter III of the Adhiniyam, which reads as under :--
7. Reference to Tribunal -- (1) Either party to a works contract shall irrespective of the fact whether the agreement contains an arbitration clause or not, refer in writing the dispute to the Tribunal.
(2) Such reference shall be drawn up in such form as may be prescribed and shall be supported by an affidavit verifying the averments.
(3) The reference shall be accompanied by such fee as may be prescribed.
(4) Every reference shall be accompanied by such documents or other evidence and by such other fees for service or execution of processes as may be prescribed.
(5) On receipt of the reference under Sub-section (1), if the Tribunal is satisfied that the reference is a fit case for adjudication, it may admit the reference but where the Tribunal is not to be satisfied it may summarily reject the reference after recording reasons therefor.'
On a 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 cannot 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 24-4-82. Thus, the disputes with regard to claims are arisen prior to that date. Even if laxity is granted, it cannot be extended beyond that date. In the proceeding under Section 20 of the Act the 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 order dated 19-7-85 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 Chahal and Co. (1995 MPLJ 885) (supra) the proceeding before the Civil Court relating to application for appointment of arbitrator was saved. Though the order was passed on 19-7-85 the claimant accepted the same. He filed the reference application under Section 7(i) of the Adhiniyam before the Tribunal on 13-7-88. 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 13-7-88. As the fact situation un folds the disputes had arisen in the year 1982 and they are obviously barred by time. At this juncture we may observe that in an application under Section 20 of the Adhiniyam, the Court is required to see that difference or disputes had arisen between the parties. There are two aspects, namely, whether there is any valid claim for 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 Wazir Chand Mahajan v. Union of India, AIR 1967 SC 990 wherein it has been laid down as follows :
'There is no doubt that Clause (I) 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 : it 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 upon the Court to reject the application for filing of an arbitration agreement under Section 20 of the Arbitration Act because the claim 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 within the jurisdiction of the Court. But the Court is not concerned in dealing that 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 arbitration 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. L. K. Ahuja and Co., AIR 1988 SC 1172 wherein the Apex Court laid down the following principles:
'8. In view of the well-settled principles 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 the Court is required to see 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 SC 1336 wherein their Lordships have registered the view as under:
'Under Section 3 of the Limitation Act, it isthe duty of the Court not to proceed with theapplication if it is made beyond the period oflimitation prescribed. The Court has no choice.'
In the case at hand, as has been indicated earlier the disputes arose in 1982. The proceedings taken by the claimant-respondent were given a go-by at his instance as he acquiesced and 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 disputes had arisen way back in 1982. This factual position is perceptible from the order of the Tribunal itself. If the claims were not entertainable or no more available to be remedied, 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 ap 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 realisation 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.
11. We are refraining from addressing to the claims allowed by the Tribunal because we have already held that the application was barred by limitation and Mr. P. D. Gupta, learned Govt. Advocate for the State had fairly stated that if the plea of limitation is not acceptable, the conclusions arrived at by the Tribunal with regard to individual claims do not warrant interference in exercise of jurisdiction under Section 19 of the Adhiniyam.
12. In view of our preceding anaylsis, we allow the revision and set aside the award passed by the Tribunal. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs.