Sanjay Yadav, JAt the outset it needs a mention that earlier in the year 2006, one of us (Sanjay Yadav, J.) had an occasion to appear in Civil Revision No.331/2004 which was directed against the award dated 25.02.2004 by Madhya Pradesh Arbitration Tribunal Bhopal in Reference Case No.26/2001. Thus Civil Revision No.331/2004 was decided on 24/01/2006 whereby the Award was set aside and the matter was relegated to the Tribunal in the light of decision in M/s Sermen (India) Road Makers Pvt. Ltd. Vs. State of M.P. & Others, (2005) 3 MPHT 292 , we, therefore, at the outset enquired from the learned counsel for the parties as to whether present revision arises from the said remand order and whether this Court can hear the matter. Learned counsel for the parties fairly submitted that the matter can be heard by this Court as it is not the matter which was remanded in the year 2006.

In view whereof, with the consent of learned counsel for the parties, the Revision is finally heard.

This Revision under Section 19 of Adhiniyam 1983 is directed against the award dated 27/08/2007 passed by the Tribunal dismissed the claim on the finding that the same is barred by limitation.

2. Relevant facts briefly are that an agreement was entered into between the petitioner and respondents for Providing, laying, Jointing, Commissioning and Testing of 1650 mm dia of R.C.C. Socket and spigot pressure pipes including supply and fixing of jointing materials and all other appurtenances from Tigra canal to Motizheel Treatment Plant. The amount of contract was Rs.4,30,13,536.50. The completion period was 24 months including rainy season. The work order was issued on 09/12/1980.

3. The petitioner completed the work in time. Completion certificate was given on 11.04.1986. The final bill was required to be made by 10/07/1986, i.e. within three months from the date of completion. As per record the final bill was prepared on 01.10.1991 duly acknowledged by the Contractor by putting his signature thereon (This is evident from Article A at pages 82 to 97 and Article C.M.B. No.33067 page 138). The final bill was for Rs.89,435/- and admittedly paid to the petitioner on 17/05/2000.

4. The petitioner raise the dispute before final authority on 29.11.1999. The claim case was filed before Tribunal on 28/04/2001 for Rs.7,63,241 under Section 7 of the Madhya Pradesh Madhyastham Adhiniyam, 1983.

5. The Tribunal taking into consideration that the cause of action accrued on 01.10.1991 when the final bill was prepared , the reference to the final authority ought to have been within three years thereof i.e. on or before 1.10.1994. Instead the petitioner raised the dispute on 29.11.1999 which was inherently barred by time. Consequently, dismissed the claim being barred by time. The Tribunal held :

"15. Let we should take this view, that the date of preparation of final bill has been taken as a date of arose of cause of arbitration, which has been taken by the Tribunal in the above case No.26/2001. In the present case the final bill has been prepared on 1.10.91 (Art. C.M.B No.33067 Page 138) which is enclosed by the respondents with Art.A at pages 82 to 97. This bill has been signed by the petitioner also at page 97 at the place of the signature of the contractor. This final bill is for Rs.89,435/-. The same has been paid by the respondents on 17.05.2000. Final bill amounting to Rs. 89,435/- has been accepted by the petitioner without protest and he has also signed the bill. The petitioner is claiming the more amount than this amount for Rs.3,10,856/-. When the bill has been prepared for less amount than the amount of bill claimed by petitioner i.e. for Rs.3,10,856.00, the date of dispute arises if can be taken 1.10.91, which is the date of preparation of the bill, then the petitioner should have approached the final authority within 3 years means up to 1.10.94. But the petitioner has approached the final authority by reference of claims on 29.11.99 i.e. after 3 years. So in this way also, in our view, the petition is not maintainable hence dismissed"

6. The question is whether the Tribunal is justified in dismissing the Claim being barred by time.

Clause 17 of the agreement stipulates :

"Provided always that in case of any question, dispute or difference shall arise between the Executive Engineer and the contractor (s) as to what additions, if any ought in fairness, to be made to the amount of the contract by reasons of the works being delayed through the fault of the contractor (s) or by reason or on account of any directions or requisition of the Executive Engineer involving increased cost to the Contractor (s) beyond the cost properly attending the carrying out of the contract according to the true intent to the works having been duly completed or as to the construction of these presents or as to any other matter of thing arising under or out of this contract, except as to matter left during the progress of the works to the sole decision or requisition of the Executive Engineer under Clauses No.1,4,8 and 9 or in case the contractor (s) shall be dissatisfied with any certificate of the Executive Engineer under clause 6 or under the provision in clause 13 or in case he shall withheld or not give a certificate to which he/they may be entitled, or as to the right of the contractor (s) to receive any compensation or as to the amount of such compensation payable to him/them under clause 18 then such question, dispute or difference or such certificate or the value of the matter which would be certified, as the case may be, is to be from time to time referred to the Superintending Engineer of the Circle concerned who will decide these and other matters relating to the meaning of the specifications, designs, drawing and instruction herein before mentioned and a to the quality of workmanship or material used in the work or as to any other question claim, right, matter of thing whatsoever in any way arising out of relating to the contract, designs, drawings, specifications, estimate instruction orders or these condition or otherwise concerning the work or the execution or failure to execute the same whether arising during the progress of the work after the completion or abandonment thereof.

Provided that the Superintending Engineer of the Circle concerned before giving his decision in the matter shall give an opportunity of being heard to the parties to the contact.

If any party to the contract is not satisfied by the decision of the Superintending Engineer of the circle concerned, it may make reference to the Chief Engineer concerned through the Executive Engineer concerned within 30 days form the date of communication of the decision of the Superintending Engineer, will give his decision after hearing the parties and his decision in the matter shall be final, conclusive and binding on the parties to the contract."

7. Section 7B of Adhiniyam 1983 as it was at the relevant time stipulated :

"7-B. Limitation.-- (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 contract, 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.

(2) Notwithstanding anything contained in Sub-section (1), where no proceeding has been commenced at all before any Court preceding the date of commencement of this Act or after such commencement but before the commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990, a reference petition shall be entertained within one year of the date of commencement of Madhya Pradesh Madhyastham Adhikaran (Sanshodhan) Adhiniyam, 1990 irrespective of the fact whether a decision has or has not been made by the final authority under the agreement."

8. Dwelling upon the nuances of Section 7 B, a division Bench of this Court in M/s Sermen (India) Road Makers Pvt. Ltd. Vs. State of M.P. & Others, (2005) 3 MPHT 292 was pleased to hold :

"13. Once, we have held that the limitation is not applicable and the cause of action does not arise from the date of completion of the work, the short and straight forward question that emerges for consideration is what should be the date of commencement of cause of action for the purpose of determination of approaching the final authority and what should be the period of duration requires to be spelt out. Be it noted, the present Act is not a beneficial legislation. In the matters relating to industrial disputes, though there is no limitation, in has been held that if the claim has become stale and no effort has been made to keep the dispute propelled and make it alive, it would not warrant adjudication on the ground of delay and laches. In our considered view because no limitation has been provided in a dispute of this nature, it would be an anathema to concept of justice to say that a contractor can approach the Final Authority at his pleasure and leisure. The doctrine of delay and laches has to be allowed to have full play. Delay in approaching a legal forum mars the claim. He, who enters into the state of hibernation, can not wake up one fine morning to put forth a claim. In commercial transaction or dispute relating to works contract the contractors can not sleep like Reap Van Winkle to find a new world, a fresh one where the cause of action would arise in their favour. At this stage, we think it condign to refer to the decision rendered in the case of Major (Retd.) Inder Singh Rekhi vs. Delhi Development Authority, (1988) AIR SC 1007. In the aforesaid case, a two Judge Bench of the Apex Court has expressed the view, and application under Section 8 or 20 of the Arbitration Act, 1940 is to be preferred within a period of three years from the date claimant asserted the claim and the payment was denied. A difference of dispute was regarded as a condition precedent. To quote Their Lordships :

"In order to be entitled to order of reference under Section 20, it is necessary that there should be an arbitration agreement and secondly, difference must arise to which this agreement applied. In this case, there is no dispute that there was an arbitration agreement. There has been an assertion of claim by the appellant and silence as well as refusal in respect of the same by respondent. Therefore, a dispute has arisen regarding non-payment of the alleged dues of the appellant. But in order to be entitled to ask for a reference under Section 20 of the Act there must not only be an entitlement to money but there must be a difference or a dispute must arise. It is true that on completion of the work a right to get payment would normally arise but where the final bills as in this case have not been prepared as appears from the record and when the assertion of the claim was made on 28th February, 1983 and there was non- payment, the cause of action arose from that date, that is to say, 28th of February, 1983. It is also true that a party can not postpone the accrual of cause of action by writing reminders or sending reminders but where the bill had not been finally prepared, the claim made by a claimant is the accrual of the cause of action. A dispute arises where there is a claim and a denial and repudiation of the claim. The existence of dispute is essential for appointment of an arbitrator under Section 8 or a reference under Section 20 of the Act."

14. In this context, we may also refer with profit to the decision rendered in the case of State of Orissa and Anr. vs. Sri Damodar Das, (1996) AIR SC 942. In the aforesaid case, in Paragraphs 5 and 6, Their Lordships expressed the view as under :--

"5. Russel on Arbitration by Anthony Walton (19th Edition) at pages 4-5 state that the period of limitation for commencing an arbitration runs from the date on which the "cause of arbitration" accrued, that is to say, from the date when the claimant first acquired either a right of action or a right to require that an arbitration take place upon the dispute concerned. The period of limitation for the commencement of an arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued :

"just as in the case of action the claim is not to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not to be put forward after the expiration of the specified number of years from the date when the claim accrued". Even if the arbitration clause contains a provision that no cause of action shall accrue in respect of any matter agreed to be referred until an award is made time still runs from the normal date when the cause of action would have accrued if there had been no arbitration clause.

6. In Law of Arbitration by Justice Bachawat at page 549 commenting on Section 37, it is stated that subject to the Limitation Act, 1963, every arbitration must be commenced within the prescribed period. Just as in the case of actions the claim is not to be brought after the expiration of a specified number of years from the date when the cause of action accrues, so in the case of arbitrations the claim is not to be put forward after the expiration of a specified number of years from the date when the claim accrues. For the purpose of Section 37(1) action and cause of arbitration should be construed as arbitration and cause of arbitration. The cause of arbitration when the claimant becomes entitled to raise the question that is, when the claimant acquires the right to require arbitration. An application under Section 20 is governed by Article 137 of the Schedule of the Limitation Act, 1963 and must be made within 3 years from the date when the right to apply first accrues. There is no right to apply until there is a clear and unequivocal denial of that right by the respondent. It must, therefore, be clear that the claim for arbitration must be raised as soon as the cause for arbitration arises as in the case of cause of action arises in a civil action."

15. We have referred to the aforesaid two paragraphs only to show that Their Lordships have used two sets of expressions, namely action and cause of arbitration. A cause of arbitration may be the date of preparation of the final bill or the date when any dispute has arisen. Definitely it can not be the date of completion of work. Irrefragably, it can not be a period ad infinitum. Ergo the date of accrual of cause of arbitration would be the date and that period has to be fixed and fixation of such period is not be regarded or treated as period fixed under the Limitation Act. We may repeat at the cost of repetition that the Limitation Act does not apply but definitely there has to be a reasonable period within which contractor has to approach the Final Authority. It is noticed in certain statute powers are conferred on the higher authority for the exercise of suo motu power. While conferring of suo motu jurisdiction, no period of limitation has been prescribed, yet it has to be done within a reasonable period of time. The fixation of reasonable period does depend upon the facts of each case for the purpose of exercise of suo motu power. In the present case as the matter relates to works contract and the statute provides an alternative forum and bars the claim it is definitely not a beneficial statute. We are disposed to think a contractor has to approach the final authority within a period of three years from the date of accrual of (cause of) arbitration. We may repeat at the cost of space that the cause of arbitration has no nexus on the completion of work but may have nexus with other factors which may include preparation of final bill. We do not intend to exhaustively state or enumerate the situations. That is for the Tribunal to determine on the appreciation of factual matrix in each case.

16. At this juncture, for the sake of completeness, we think it appropriate to refer to the recent amendment by which Section 7-B has been further amended. The amended provision reads as under :--

"2-A. Notwithstanding anything contained in Subsection (1), the Tribunal shall not admit a reference petition unless it is made within three years from the date on which the works contract is terminated, foreclosed, abandoned or comes to an end in any other manner or when a dispute arises during the pendency of the works contract."

17. We have referred to the same as Mr. Rao and Mr. N. Johri have submitted that sometimes the final bill is settled after five years and, therefore, it should be the date of settlement of the final bill otherwise there would be chaos and that would give rise to injustice. In this submission, we really do not perceive any merit. By way of limitation, period provided is three years from the date on which the work contract is terminated, foreclosed, abandoned comes to an end or when a dispute arises during the pendency of the works contract. We do not intend to dilate on the aforesaid provision as it is not necessary in the case at hand. We have noted it. We have fixed the period of three years for approaching the Final Authority from the date of accrual of cause of arbitration and when a cause of arbitration would arise would be dependent upon various factors in a given case. We hasten to clarify that we have dealt with the un-amended provision and only referred to the amended provision as it was brought to our notice."

9. Thus, it is clear that the cause of action would arise from the date of preparation of final bill and not from the date when payment was made. In the case at hand as the record reveals that the final bill was prepared and acknowledged by the petitioner on 1.10.1991 the accrual of cause of action would be said date and not a deferred date when the payment was made.

10. In view whereof it was incumbent upon the petitioner to have raise the dispute within three years from the date of accrual of cause of action. Instead, the petitioner raised the dispute on 29.11.1999 i.e. after expiry of period of three years. The impugned order passed by the Tribunal when is adjudged on the above analysis cannot be faulted with.

11. Consequently, revision fails and is dismissed. No costs.