VULCAN INSURANCE CO. LTD versus MAHARAJ SINGH & ANOTHER

VULCAN INSURANCE CO. LTD

MAHARAJ SINGH & ANOTHER

October 3, 1975

[A. ALAGIRISWAMI, P. K. GOSWAMI AND N. L. U'.'ITWALLI, JJ.J

Arbitrati0'11-Repudiatio11 of claim by insurer-No dispute raised about quantum of loss dr domfJge-Remedy of insured, whether by suit or arbi1ra-tion.

about

The respondent-insured, claimed from the appeJlant-insurer certain sum on the basis that he. had suffered Joss due tQ fir~. The appellant repudiated the claim under cl. 13 of the policy. The respondent thereupon wrote to the appellant suggesting arbitration on the dispute as per cl. 18 of the policy. The appellant. however, wrote back saying tbat since it had repudiated the claim of the respondent the arbitration clause was inoperative. The respondent then fi11:d an application under s. 20 of the Arbitration Act, J 940, for the filing of the arbitration- agreement· in the Court and for appointment of arbitrators. The trial court dismissed the petition as barred unde.r cl. 19 of the policy. On appeal, the High Court set aside the order of the trial court and remanded the matter to it for appointm.ent of arbitration.

Allowing the appeal to this Court,

HELD : ( 1) The difference which arose between the parties on the appel-lant's repudiation of the claim made by the respondent was not one to which the arbitration clause applies and hence the arbitration agreement could not be filed and no arbitrator could· be appointed under s. 20 of the Act. The only remedy open to the respondent was to comm\mce suit within three months of the date of the repudiation to establish the insurer's liability. [72 B-C].

(a) Clause 18 prO\~des that if any difference arises as to the amount of any loss or damage such difference sh~ll be referred to arbitration. Jf the rejection of the claim made by the insured be on the ground that he had suffer~d no loss as result of the fire or the amount of loss was not to the extent claimed by him tben, and then only diffierence could have arisen as to the amount of any loss or damage within the meaning of the clause. The dispute raised in the present case appertained to the liability of the insurer to pay any amount whatsoever. Sucb repudiation of the claim could not amount to the raising of dispute as to the amount of any loss or damage suffered by the insured. [66 G-H].

(b) As per cl. 13, on rejection of the claim by the insurer, an action or suit has to be commenced withi.n three months from the date of such rejec-tion; otherwise, all benefits under the policy stand forfeited. That is, as soon as there is rejection of the claim, and not the raising of dispu11e as to the amount of any loss or damage, the only remedy open to the claimant is to file suit for establishing the insurer's liability. It may be that after the· liability of the insurer is so ~stablished, reference to arbitration under cl. 18 will have to be resorted to for determination of the quantum of loss or damage. [67 A-CJ.

(2) The last part of cl. 18 provides that an award is condition precedent to any right of action or suit. But it cannot on that account be contended 1hat even when there is repudiation of liability the matter has to go to arbitration first. If the arbitration clause is couched in comprehensive langu-age taking within its ambit any kind of dispute arising under the policy then the obtaining of an award by arbitration is condition precedent to the start-ing of any other legal proceeding. But, reading els. 13 and 18 together, in the present case. it must be held that on the rejection or repudiation of the claim by tbe insurer the insured is under an obligation to start legal proceed-' ing within three months of such rejection and hence the obtaining of an award

in such cases cannot be condition precedent. If the di>pute is such that can go to arbitration then no action or suit can be commenced without obtaining an award. But the condition of obtaining an award prior to any action or suit can never be attracted if the dispute raised cannot be refurred to arbitra-tion and has got to be determined in legal proceeding. [67 D-E, G-68 B, G-H].

Scott v. Avery ( 1856) 25 L.J. Ex. 308; 5H.L.C. 811; Jureidini v. Nalional Bn'.tish and Irish Millers Insurance Company Ltd. [1915] Appeal Cases 499; Heyman and another v. Darwine Ltd. [1942] 1 All England Reports, 337; Viney v. Bignold [1888] 20 Queen's Bench Division, 171; Caledonian Insurance Company v. Andrew Gilmour (1893] Appeal Cases, 85 and O'connor v. Norwich Union Fire and Life l11s11ra11ce Society (1894) 2 Irish Law Reports, 723; rei'erred to. ·

The Eagle Star and British Dominions [nsuwnce Company v. Dinanath and Hrnzraj, I.LR. 47, Bombay, 509, approved.

Cizaranjit Lal Sodhi v. Messrs. Caiedonian Insurance Co. Ltd. and another [1969]Acci<lents Claims Journal, 12, overruled.

'(3) Clause 19 of' the policy provide~ that in no case whatever shall the insurer be liable for any Joss or damage after the expiry of 12 months from the happening of the Joss or damage unless the claim is the subject of ~nding action or arbitration. The High. Court is not right in its view that the claim of the insured was r,'°t barred under this clause because of s. 37 (3) of the Arbitration Act'. It is, however, not necessary to decide whether the appellant's application under s. 20 was barred by clause 19 or could be defeated on the ground of the extinction of the insurer's liability under clause 19. If the dispute was one to which the arbitration clause applies then the application under s. 20 could not be dismiSsed on the ground that the claim would not ultimately succeed either on facts or in law, because, the matter will have to be left for the decision of the arbitrator. [71 D, F-72 A].

Wazirclwnd Mahajan mzd another v. Union of lizdia [1967] 1 S.CR. (vide page 308), followed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2228 of 1972.

Appeal by Special leave from the Judgment and Order dated the 7th October 1971 of the Delhi High Court in F.A.O. No. 155-D of 1965.

F. S. Nariman and V,ineet Kumar for the Appellant.

S. N. Andley, Miss Uma Mehta, Mrs. S. Bagga, S. K. Bagga, Ramesh Chand and R. K. Mehta for Respondent No. 1.

S. K; Mehta, K. R Nagaraja and M. Qamaruddin and P. N. Puri for Respondent No. 2.

The Judgment of the Court was delivered by

DNTWALIA, J. This appeal by special leave was filed by . The Vulcan Insurance Co. Ltd. The general insurance business of the Company was nationalised during the pendency of this appeal and, therefore, in place of the original appellant was substituted United India ~ire and General Insurance Company Ltd. by order 28-2-1975 passed ~n CMP No. 84!/1975. For the sake of fac_ility hereinafter in this .iudgment by the appellant would be meant the original appellant com-pany.. The respondent no. 1 in the appeal is Maharaj Singh, sole proprietor of Khatauli Manure Mills, Khatauli, District Muzaffarnagar. Respondent no. 2 is Punjab National Bank.

Respondent no. 1 carries business of manufacturing Bone Mnnure etc. in his mills nt Khatauli. He entered into an nrrangemcnt with respondent no. 2 for taking ndvance of money on the security of the factory premises, machineries and the stock of goods. mortgage _ deed w.as executed by him in favour of the respondent bank for that purpose. The Bank insured the mortgage properties from time to· time with the appellant company under thri!e insurance policies, the terms governing the same being identical.

fire is said to have broken out in the factory premises of respon-dent no. l in the night between 28-2-1963 and 1-3-1963. The Bank informed the Insurance Company about the fire. Thereupon repre-sentatives of the Bank and the IllSurance Company and some surveyors visited the factory premises 0[1].u 1-3-1963 and ·after. Respondent no. 1 claimed that due to fire he had suffered loss of Rs. 24,800/- on account of damage to the fixed assets and Rs. 2,730,004.40 due to damage caused to the stock of goods. Eventually M/s. R. K. Bhandari & Sons, Surveyors of the Insurance Company wrote letter dated 26th April, 1963 to respondent no. 1 informing him that they had assessed the total damage caused to him due to fire at Rs. 4,620/-. They, how-ever, added at the end of their Ietter-"This is without prejudice to the terms and conditions of the policy and without any commitment of lia-bility on the part of the Insurance Company." Further correspon-dence between the parties ensued and ultimately the appellant intimated to respondent no. 1 by its letter dated 5th July, 1963-"Referring to the previous correspondence relating to the above mentioned claim, we regret to inform you that we repudiate the claim under the above men-tioned oolicies." ·Respondent no. 1 seems to have written letter dated 22nd July, 1963 to the appellant, to which it sent reply dated 29th July, 1963 categorically sta_ting-"We are advised ta repudiate your claim inter alia under Clause 13 of the Fire Policies. We regret that survey report and any other reports. cannot be furnished tn you."

Respondent no. 1 thereupon wrote letter dated 1-10-1963 to the Insurance Company informing it that since it had repudiated his claim under clause 13 of the Insurance policy difference had arisen between the parties and hence respondent no. 1 proposed to appoint one Shri K. N. Bannerjee as the sole arbitrator, to decide the disputes as per the arbitration agreement incorporated in the policies. He said further that if the companv was not agreeable to the appointment of Shri Banneriec as the sole arbitrator, he mav pe treated as nominee of resoondent no. 1 and the comnany mav aoooint its own. In reply to the said Jetter datecl the 1st Octoher, 1963 the company wrote letter clatP-.<l 10th October. 1963 to resoondent no. 1 that since it had repudiated his claim the arbitration clause in the policies was rendered inon.,rat;ve and no arhitration proceeding could be commenced lw appointment of anv arbitrator.

Re<nnndcnt no. 1 in the first instance filed the application under sectirm ?O nf the Arbitration Act. 1940--hereinafter called the Act. on 20-1-1964 in the Court at Muza:ffarnagar in Uttar Pradesh. The

appellant appeared and, inter alia, ~oo~ an obj~tion to the ju_risdiction of that Court to entertain the apphcat1on. fa. v.1ew of special clause in the policies excluding the jurisdiction of courts ?th~r tha~ th~ court at Delhi; the Muzaffarnagar court allowed that obiect10n •and directed the return of the application by its order dated 1-5-1964. Respon-dent no. 1 refiled it on 19-5-1964 in the Delhi Court. Appellant resisted it.

On reading clauses 13, 18 and 19 of the Insurance Policies which are in identical terms and on appreciation of the other materials in the case the Trial Court at Delhi dismissed the application holding that the 1 dispute arising out. of the repudiation of thi:: liability under clause 13 by the Insurance company was within the scope of the arbitration agreement contained in clause 18 and reference -to arbitration could be made, but, as per clause 19, the petition was barred by limitation.

On appeal by respondent no. 1 the Delhi High Court has held~ ( 1) Clause 18 does not include in its scope all kinds of differences or disputes that may arise between the parties in respect of the subject matter of the insurance policies. Th<; scope of Clause 18 is restricted to differences as to the amount of loss or damage. (2) Yet reference to arbitration is not ousted and the arbitration clause covers the dis-pute even if the company has repudiated the claim in toto. (3) The arbitration clause 18 is inoperative unless the conditions contained in clause 19 are satisfied and ( 4) the condition aforesaid was satisfied because respondent no. 1 had- commenced the arbitration on the date when he issued the notice dated the 1st October, 1963; as such. his claim was the subject of pending arbitration within the meaning of clause 19. The High Court. therefore, set aside the order of the Trial Court and remanded the case to it for appointment of arbitrators under section 20" of the Act. Hence this appeal by the Insurance Company.

It appears in this case that arguments have been advanced on either side in the courts below as also in this Court widening the scope of the matters in issue resulting in the missing of the crucial point in con-troversy. Really only one point need be decided in this appeal and that is this-whether in view of the repudiation of liability by the apel-lant under clause 13 of the lns_urance Policy, dispute was raised which could be referred to arbitr\[tion? Incidentally in this judgment reference will be made to the other question as to whether the claim of respondent no. 1 and the proceeding commenced by him were bar- _ red by clause _19.

In order to discuss and determine the questions which fall for determination in this appeal it is necessary to read the relevant clauses. of the Insurance policies.

· "13. If the claim be in any respect fraudulent, or if any false declaration lie made or used in support thereof, or if any fraudulent mea.ns or devices are used by the insured or any one acting on his behalf to obtain any benefit under this Policy; or, if the loss or damage be occasibned by the wilful. act, or with the connivance of the insured; or, if the claim

be ~ad.e and rejected and an ~tion .or suit be not commenc-ed w1thm three months after such rejection or (in case of an arbitration taking place in pursuance of th~ 18th condition of this Policy) within three months after the Arbitrator or Arbi-trators or Umpire shall h'ave made their award, all be~fit under this Policy shall be forfeited."

"18. If any difference arises as to the amount of any Joss or damage such difference shaU independently of all other questions be referred to the decision of an Arbitrator, to be appointed in writing by the parties in difference, or, if they cannot agr~e upon single Arbitrator to the decision of two disinterested persons as Arbitrators ................. .

And it is hereby expr~sly stipulated and declared that it shall be condition precedent to any right of action or suit upon this policy that the award by such arbitrator, arbitrators or Umpire of the amount of the loss or damage if disputed shall be first obtained."

"19. Jn no case whatever shall the company be liable for any loss or damage after the expiration of twelve months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration."

The correspondence between the parties makes it clear that at one . time the surveyors had assessed the damages_at Rs. 4,620/- in their letter dated 26-4-1963. But the said assessment was, in express terms, without commitment of any liability on the part of the Insurance Com-pany. The Company; however, completely repudiated the liability under clause 13.

Although the surveyors in their letter dated 26-4-1963 had raised dispute as to the amount of any loss or damage alleged to have been suliered by respondent No. 1, the appellant at no point of time raised any such dispute. The appellant company in its letter dated the 5th and the 29th July, 1963 repudiated the claim altogether. Under clause 13 the company was not required to mention any reason for rejection of the claim nor did it mention any. But the repudiation of the claim could not amount to the raising of dispute as to the amount of any loss or damage alleged to have been suffered by respondent No. 1. If the rejection of the claim made by the insured be on the ground that he had suffered no loss as result of the fire or the amount of loss was not to the extent claimed by him, then, and then only, difference could have arisen as to the amount of any loss or damage within the meaning of clause 18. In this case, however, the company repudiated its liability to pay any amount of loss or damage as claimed by respondent No. 1.' Jn other words, the dispute raised by the company appertained to iU, liability to pav anv amount of damage whatsoever. Jn our opinion, therefore, the dispute raised by the appellant company was not covered by the arbitration clause.

As per clause 13 on rejection of the c!aim b~ the compa_ny dll acti~n or suit, meaning thereby legal proceedmg which almost mvanab~y !n India will be in the nature of suit, has got to be commenced w1th111 three months from the date of such rejection; otherwise, all benefits under the policy stand forfeited. The rejection of the claim may be for the reasons indicated in the first part of clause 13, such as, false declaration, fraud or wilful neglect of the claimant or on any other ground disclosed or undisclosed. But as soon as there is rejection of the .claim and n,ot the raising of dispute as to the amount of any loss oc damage, the only remedy open to the claimant is to commence legal proceeding, namely, suit, for establishment of the company's liability. It may well be that after the liability of the company is estab-lished in such suit, for determination of the quantum of the loss or damage reference to arbitration will have to be resorted to in accord .. · ance with clause 18. But the arbitration clause, restricted as it is by the use of the words "if any difference arises as to the amount of any loss or damage", cannot take within its sweep dispute as to the liability of the company when it refuses to pay any damage at all. ·

Mr. S. N. Andley, learned counsel for respondent No. 1 submitted. that in view of the last part of clause 18 which makes the aware! of an arbitration\ condition precedent to any right of action or suit, it should be held that even when there is repudiation of liability, the matter has to go to arbitration first. In support of such submission, learned c0unsel placed reliance upon certain decisions of the courts in India as aiso iii England. We shall presently show that on the facts and in the circumstances of this case, none of them is of help to respondent No. 1.

clause like the last part of clause 18 making the award condition precedent to any right of action or suit first came up for consideration in the case of Scott v. Avery(') and since then such clauses are com-· monly called Scott v. Avery clauses. Generally it has been found that it the arbitration clause is couched in comprehensive language taking within its ambit any kind of dispute arising under the policy, then obtain-ing of an award by arbitration is condition precedent to the starting of any other legal proceeding. clause like Scott v. very has repeat-edly been held to be valid one. "Even clause of this type, how-ever, is not absolute in effect: where the court orders that the arbitra-tio;1 agreement cease to have dfec: in relation to particular dispute, it has discretion to order further that the Scott v. Avery clause cease to have effect, too" (vide pages 57, 58 of Russell on Arbitration, Eight-eenth Edition). T11e said statement of the law, however, has been made with reference to section 25 ( 4) of the English Arbitration Act, 1950. The corresponding provision in our Act is contained in section 36. But that apart, when an arbitration clause is not operative on the dispute raised, as in this case, then it is wholly unreasonable, almost impossible, to hold that still the parties have to obtain an award before starti11g any legal proceeding. What dispute will be referred to arbit-ration? The dispute raised is not within the purview of arbitration. Reading clauses 13 and 18 together it must be held that on the rejection or repudiation of the claim by the insurer, the insured

(I) (1856) 25 L. J. 'Ex. 308; 5 H. L. C. 81 I.

is under an obligation to start legal proceeding within three months of such rejection, and hence obtaining of an award in such case cannot be condition precedent. 1t is not possible to go to arbitration for determination of the said dispute. Clauses similar to the ones contain-ed in claust.0s 13 and 18 in this case were the subject matter of con-sideration before the House of Lords in the case of Jurisdini v. National British and Irish Millers Insurance Company, Limited('). The claim made by the insured was rejected by the insurer as being fraudulent. When the former brought an action the latter resisted it on the Scott v. very clause. The House gave unanimous opinion that the repudia-tion of the claim on ground going to the root of the contract precluded the company from pleading the arbitration clause as bar to an action to enforce the claim. The matter put in that form in some of the speeches of the Law Lords does not seem to have received full approval of the House in later decisions including the one in Heyman and another v. Darwins Ltd.e) as it would appear from the speech of Lord Macmil-lan at page 346. But the real ratio of the decision which remains un-shaken even till today is to be found in the speech of Lord Parmoor at page 508 when his Lordship said that since no difference had arisen which could be covered by arbitration clause 17 and the company had raised an issue on which, if it had succeeded, the insured would have lost all benefit under the policy, the arbitration clause had no applica-tioP.Learned cou11Sel for respondent No. 1 placed reliance upon some decisions of the English courts in support of his contention that in spite of the repudiation of the liability by the appellant his client could not commence any legal proceeding without going to arbitration. Only two may be noticed here : Ini Viney v. Bignold([3 ]) it was held that the determination of the amount.by arbitration was condition precedent to the right to recover on the policy and if any action was brought with-out an award obtained in an arbitration it was not maintainable. It should, however, be noticed that the language of arbitration clause 21 in that case was wide enough to cover any dispute and from the facts stated in the judgment it is nowhere to be found that the dispute raised by the company was not covered by the arbitration clause. If the dispute is such that can go to arbitration then no action or suit can be com-menced without obtaining an award. But the condition of obtaining an award prior to any action or suit can never be attracted if the dispute raised cannot be referred to arbitration and has got to be determined in legal proceeding. The other case is the decision ~f the House of Lords in Caledonian Insurance Company v. Andrew Gilmvur{4). That was again case of comprehensive arbitration clause and thus justi-fying the application of the Scott v. Avery clause as bar to the mainc tainability of an action without an award.

In O'connor v. Norwich Union Fire and Life Insurance Society(~) the decision in the case of Viney v. Bignold (supra) was distinguished

{I) [1915] Appeal Cases, 499.

(2) (1942] l All England Reports, 337.

(3) (1888) 20 Queen's Bench Division, 171. (4) [1893] Appeal <;:ases, 85.

(5) (t 894) 2 Irish Law Reports, 723.

:and the Scott v. very clause was held to be inapplicable because the dispute raised was not covered by the arbitration clause. Holmes, J. pointed out at page 728 :

"Now, if it was term of the contract that difference of this kind was to be settled by arbitration, I should not hesitate to stay the action ........................ , ........ .

But there is no provision in the plaintiff's policy that such controversy as has arisen is to be referred to arbitration. There is carefully drawn clause, by which it is agreed that the amount to be paid, as distinguished from liability to pay anything, is to be settled by arbitrators, and that no action can be commenced until they shall have. determined such amount. One result of this clause may be to render two pro-ceedings necessary where there is dispute as to the amount of the loss as well as denial of all liability; but this ought not to be ground of complaint to either of the parties who have made it term of the contract;"

We agree with this.

1986 at Insurance as also ·

Mr. Andky placed reliance upon paragraphs 1983 to 1986 at pages 964 and 965 of the Fifth edition of MacGillivray on Insurance Law. On the basis of the decision in Scott v. Avery (supra) as also certain other decisions it is said in paragraph 1983; ·

"There is rule of law that parties cannot by their private contract oust the jurisdiction of the court; but it has been held that parties tO contrac~ may nevertheless agree that no cause

. of action shall arise upon it until any matter in dispute bet-ween them shall have been determined by arbitration and then only upon the arbitrators' award."'

The discussion in paragraph 1986 relates to 'whether arbitration is condition precede,1t or is merely ·a collateral agreement. But the relevant paragraph which applies on all fours to the facts of the case on hand, as pointed out by Mr. F. S. Nariman, counsel for the apel-lant, is paragraph 1987 at page 966: . "As rule, where the amount of the loss or damage is the only matter which the parties refer to arbitration, then if the .. insurers repudiate any liability on the policy there is no obli-gation on the assured to arbitrate as to the amount before commencing an action on the policy."To the same effect is to be found the statement of the law at pages 328 to 332 in the Fourth edition of Welford & Otter-Barry's Fire Insurance.

Following the decision of the House of Lords in Jureidini's case (supra) Bench of the Boinbay High Court in The Eagle Star and British Dominions Insurance Company v. Dinanath and Hemraj(1) while interpreting an identical clause 13 said at page 521 :

"But in clause 13 there are various contingencies set out which if established entitle the insured to bring an action with-out an award having been made by arbitrators. One of these contingencies is "if the claim be made and rejected" which if established gives right of action, the period of limitation provided for the suit being fixed at three months from the date of the rejection. While it is also provided that where arbitration takes place in pursuance of condition 18 of the policy, three months' time should be allowed for suit to be brought after the award has been made. Therefore it is quite obvious that a: right of action accrued after the company rejected the claim. Naturally that question would have first to be decided by suit as under clause 18 that question could never have been referred to arbitration."

We approve the law so enunciated by the Bombay High Court.

Mr. Andky placed reliance upon some decisions of the High Courts in India in support of liis contention. We briefly refer to 4 of tht<.m. In The Great American Insurance Co. Ltd. v. Bodh Raj(') some obser-D vations by Harnam Singh, J. with whom Weston C.J. agreed in para-graph 16 do not seem to be quite accurate although on facts as found in paragraph 17 the case was rightly decided. The decision of Falshaw, J. in Great American Insurance Co. Ltd. v. Dina Nathe) again relates to the djspute which was held to have, on the facts of that case, fallen within the arbitration clause. It would appear from the facts of the case decided by Mathew, J. in The Vanguard Fire and General lns11ra11ce Company Limited, Madras v. N. R. Sreenivasa Iyer, Trivandrurn(") that clause 7 of the policy was couched in wide language so as. to cover the dispute and the difference including the one as to liability, which arose between the parties. In such situation on considera-tion of various authorities including the one in the case of Viney v. Rig11nld (:iuprn) the learned Judge said at page 275 column I : "This condition may either mean that the arbitrators have to decide the question whether there is anv liability at all under the contract or that they have to decide the quantum of that liability. [n either case .an award by tAc arbitrators is condition precedent to any right o[ action. There is no difference between case where the arbitra-tors have to decide the question of the liability itself and case where he has to decide the question of the quantum of that,, liability. In both cases if the contract makes the decision of the arbitrators condition precedent that has to be fulfilled before suit can be instituted."

In Charanjit Lal Sodhi v. Messrs. Caledonian Insurance Co. Ltd. and another,([4 ]) learned single Judge of'the Delhi High Court

(!) A, T. R. 1953 Punjab 50.

(2) A. l. R. 1957 Punjab, 152. (4) (1969) Accidents Claims Journal, 12.

(3) A. T. R. 1963 Kerala 270.

seems to have gone wrong in treating the dispute raised by the in-surer as one failing under the arbitration clause. The company had said that the insured had made false claim. The learned judge thought that even the restricted arbitration clause covering only the difference as to the ;imount of any loss or damage was "wide enough to. include case of some loss or damage as well as case of no loss or damage." The two lines of cases clearly bear ont the two 'distinct situations in law. clause like the one in Scott v. very bars any action or suit if commenced for determination of dispute covered by the arbitration clause. But if on the other hand dispute cropped up at the 'very outset which cannot be referred to arbitration as being not covered by the clause, then the Scott v. very clause is rendered inoperative and cannot be pleaded as bar to the maintainability . of the legal action or suit for determination of the dispute which was outside the arbitration clause. We do not propose, as it is not necessary, to decide whether the action commenced by respondent no. 1 under section 20 of the Act for the filing of the arbitratioll/ agreement and for appointment of arbitrators was barred under clause 1.9 of the policy. lt has been repeatedly held that such clause is not hit by section 28 of the Contract Act and is valid; vide-The Baroda Spinning and Weaving Company Limited v. The Satyanarayan Marine and Fire Insurance Company, Limited('); Dawood Tµr Mahomed Bros and others v. Queensland Insurance Co. Ltd.(2) and The Ruby General Insurance Co. Ltd. v. The Bharat Bank Ltd. and others(B), aause 19 has not prescribed period of 12 months for the filing of an application under section 20 of the Act. There was no limitation pres-cribed for the filing of such an application under the lndia;n Limitation · Act, 1908 or the Limitation Act, 1963. Article 181 of the former did not govern such an application. The period of three years prescribed in Article 137 of the Act of 1963 may be applicable to an application under section 20. Nor are we concerned in this case to decide whether the time taken by respon-dent no. 1 in prosecuting his application in Muzaffarnagar court could be excluded under section 14(2). of the Limitation Act, 1963. ,Nor do we propose to decide whether the application under section 20 could be defeated on the ground of the extinction of the liability of the company under clause 19. We may, however observe in passing that in view of the decision of this Court in ' W azirchand Mahajan and .another v. Union of India(4) if the difference which had arisen between the parties · was the one to which the arbitration clause applied then the applicatio11J under section 20 of the Act could not be dismissed on the ground that the claim would not ultimately succeed either on facts or in law. The matter will h~ve t? be left for. the decision of the. arbitrator. Without any d1scuss1on we may iust state that the High Court is not right in its

(1) J. L. R. xxxvm Bombay, 344.

(2) A. I. R. 1949, Calcutta, 390.

(3) A. I. R. 1950 (East) Pu'njab 352.

(4) [1967] l S. C.R. 303 (vide page 308).

6-Ll276 SCI/75

view that respondent no. l's claim was not barred under clause 19 because of the provision of law contained in section 37(3) of the Act.

But in this case on careful consideration of the matter we have come to the definite conclusion that the difference which arose bet-ween the parties on the company's repudiation of the claim made by respondent no. 1 was not one to which the arbitration clause applied and hence the arbitration agreement could not be filed and no arbitrator could be appointed under section 20 of the Act. Res-pondent no. 1 was ill-advised to commence an action under section , 20 instead of instituting suit within three months of the date of repudiation to establish the company's liability.

For the reasons stated above, we allow this appeal, set aside the judgment and orders of the .courts below and dismiss respondent no. l's application filed under section 20 of the Act. Since he fails on technical grounds, in the circumstances of the case, we shall direct the. parties to pay and bear their own costs throughout.

Appeal al/owed.