P L D 1977 Karachi 838 (PLP)

M. Y Nizami for Defendant. This is an application under section 20 of Arbitration Act requesting the Court to order the defendants to file the agreement in Court and also appoint an Arbitrator to adjudicate upon the claims of the plaintiff It is admitted position that the plaintiff entered into the contract with defendant No. 2 for construction of offices and staff quarters at Quetta which contract was approved at Karachi, being the head office of the said defendant. The plaintiff received payment partly at Quetta and partly at Karachi. The Final bill was paid to the plaintiff at Karachi. During the execution of the work certain disputes arose between the parties. Defendant No. 2 did not therefore make payment for the disputed claims of the plaintiff while making payment against his final bill. The plaintiff approached defendants for the appointment of an Arbitrator for settling the dispute as provided by clause 28 of the agreement. The defendant No. 2, who was the appointing. authority, failed to appoint/nominate the Arbitrator even after a reminder dated 3-10‑1971 was sent to him. The plaintiff has, therefore, filed the present application on 3‑9‑1974. According to the plaintiff the cause of action arose to him on 3‑9‑1971 at Karachi when the defendant No. 2 failed, to appoint an Arbitrator in spite of the reminder of the plaintiff to him. The defendants, in their written statement have admitted the contract and written agreement but alleged that the work was completed on 8‑4‑1970 and the present application is time barred, They admit the Arbitration clause in the agreement but allege that there was no dispute between the parties as contemplated by the arbitration clause hence they did not feel necessary to appoint the Arbitrator. They allege that 'the plaintiff has been paid his final bill and there is no claim outstanding against them. Their case is that the plaintiff has filed the vague application in which the neither the nature nor the extent of the dispute is mentioned nor the particulars of the dispute are set out therein. Their contention is that every dispute was not to be referred to the arbitration but only those disputes were to be referred to him which were covered by the arbitration clause in the agreement. The plaintiff has failed to mention the nature of the dispute in order to shove that it fell within the ambit of the Arbitration clause. The defendants further alleged that the application is tame‑barred because the plaintiff had admittedly requested for appointment of an Arbitrator ride his letter dated 29‑3‑1971. They urge that he had to make an application for Arbitration within 3 years from the above date and not from the 3‑10‑1971 which was only a reminder to the defendant to appoint an Arbitrator. According to them the cause of action arose to the plaintiff on 29th March, 1971 when he wrote the first letter for appointment of Arbitrator or even earlier when the work was completed on 8‑4‑1970 or when he received the payment of the final bill ire June, 1971 The plaintiff has cleverly omitted to mention the date on which the payment of the final bill was made to him. I have heard the Advocates of both the parties at full length and given by utmost consideration to the facts on record and have come to the conclusion that the application is time barred. The cause of action arose to the plaintiff when the full and final payment was made to him by the defendant on 22nd June, 1971. The photo copy of the defendant's letter to that effect is on record and it is not denied. The payment was made by a cheque of the above date. The plaintiff had to file application within 3 years. from this date and not from 3‑10‑1971 which was only a reminder to the defendants to appoint an Arbitrator. The original letter as admitted in this reminder was written on 29‑3‑1971. The reminder invited attention of the defendant to the letter of the plaintiff dated 29‑3-1971 wherein they were requested to appoint an Arbitrator. Even in the light of this reminder the cause of action arose to the plaintiff on 29‑3‑1971 when he wrote the original letter to the defendant. The present application is filed on 3.9‑1974 which is long after the expiry o`' 3 years from 29‑3‑1971 or 22‑6‑1971. The application its time barred and in liable to be dismissed. Even on merits the plaintiff's application roust fail. He has failed to specify how does his claim fall within the terms of the arbitration clause 28 mentioned in the agreement. It reads as under :‑‑ "All questions and disputes between the parties to the contract other than those in which the decision certificate, and/or opinion of any person is expressed by the contract to be final and conclusive, shall be referred to an arbitrator, to be appointed by the Chief Accountant of the State Bank of Pakistan whose award shall be final and conclusive and binding on the parties. Unless the State Bins other wise, agrees, such reference shall not take place until after the completion or abandonment of works." There is nothing in the application to show that the dispute had arisen ,out of the contract or what was the actual dispute to be referred to the Arbitrator. He has only urged that the defendant be directed to file the agreement in Court and appoint an Arbitrator because a dispute had arisen between the parties. What the dispute actually was sad whether it had arisen out of the contract as laid down by the abovesaid clause of what amount was withheld by the defendant from the final bill and why, is not mentioned in the application. It therefore suffers from vagueness which does not justify any action on it. There are no sufficient grounds to grant the prayer of the plaintiff. The application is accordingly dismissed with costs. S. Q. Application dismissed.