1 S.B. Civil Misc. Appeal No.1105/2006 Secretary, D.M., Union of India & Ors. Vs. M/s. Jagdish Prasad Ram Avatar Pvt. Ltd. & Anr. S.B. Civil Misc. Appeal No.1105/2006 Secretary, D.M., Union of India & Ors. Vs. M/s. Jagdish Prasad Ram Avatar Pvt. Ltd. & Anr. Date : 19.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.Arvind Samdariya, for the appellants. Ms.Rekha Borana, for the respondent. - - - - - Heard learned counsel for the parties. This appeal is against the order dated 12.3.2004 passed by the Court of District Judge, Sri Ganganagar in Civil Misc. Case No.42/1997 by which the application filed by the contractor under Section 5 read with Section 12(2) of the Arbitration Act, 1940 (for short 'the Act of 1940'). Brief facts of the case are that an agreement was entered into between the appellants and the respondent being contract no.CEBTZ/13/1983-84. The dispute arose on 17.9.1987 on the day when the contract was rescinded 2 S.B. Civil Misc. Appeal No.1105/2006 Secretary, D.M., Union of India & Ors. Vs. M/s. Jagdish Prasad Ram Avatar Pvt. Ltd. & Anr. by the appellants. The appellants in terms of the contract initially appointed Mr.AV Gopalakrishna as arbitrator on 17.9.1991 and referred the dispute to the arbitration. However, the arbitrators were changed and ultimately, the last Arbitrator Shri Vidhya Bhushan was appointed and on 4.3.1996 passed the award by which certain claims of the contractor were allowed and some of the claims of Union of India were allowed. After this award dated 4.3.1996, the appellant sent a notice dated 30.9.1996 to the contractor intending to refer certain left out matters to the Arbitrator and by order dated 30.12.1996 appointed a new arbitrator. The contractor objected to appointment of new arbitrator and for referring the matter to the arbitrator after inordinate delay on the ground that once the dispute arose between the parties and the arbitrator was appointed, then all the claims should have been raised and should have been referred to one arbitrator for final adjudication of all the claims between the parties. The appellants themselves submitted claims before the arbitrator who was initially appointed and the contractor raised objection against the claims of Union of India upon which the arbitrator held that the items are not referred to the arbitrator. According to the contractor, reference could have been modified but 3 S.B. Civil Misc. Appeal No.1105/2006 Secretary, D.M., Union of India & Ors. Vs. M/s. Jagdish Prasad Ram Avatar Pvt. Ltd. & Anr. that has not been done for a long period of five years and thereafter, new proceedings were sought to be raised. In view of the above facts that a dispute which arose in the year 1987 and some of the items may have become due after completion of left out items then the dispute arose before 1991 is the admitted position. The award was passed by the arbitrator on 4.3.1996. Despite raising claim by the contractor, the appellants did not chose to refer those disputes to the arbitrator nor sought amendment in the reference and remained silent for long period till the arbitrator decided the dispute. It is expected from all the parties to have adjudication in one proceedings with respect to one contract and settle all dispute in said speedy remedy i.e. arbitral proceedings. The general principal of law that the claim which has not been raised may be deemed to have been either waived or abandoned, can be applied to the arbitral proceedings also which depend upon the facts of each case. In a case, when the claim was submitted by the appellants, they themselves appointed the arbitrator and that was not accepted by the arbitrator, then the reference should have been modified by the arbitrator and, therefore, there is no just reason for the 4 S.B. Civil Misc. Appeal No.1105/2006 Secretary, D.M., Union of India & Ors. Vs. M/s. Jagdish Prasad Ram Avatar Pvt. Ltd. & Anr. appellants to have multiplied the proceedings to decide separate proceedings by appointing new arbitrator resulting into delay. The trial court has considered the various judgments with respect to bar of Order 2 Rule 2 CPC as well as contractual res judicata. In view of the above reasons, I do not find any reason to interfere in the impugned order while exercising the appellate jurisdiction. Consequently, this appeal, having no merits, is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya