Gujarat High Court
Bhakti Construction vs M/S R C Patel Engineer And Contractor on 3 January, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/ARBI.P/40/2022 ORDER DATED: 03/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/PETN. UNDER ARBITRATION ACT NO. 40 of 2022
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BHAKTI CONSTRUCTION
Versus
M/S R C PATEL ENGINEER AND CONTRACTOR
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Appearance:
MR HR PRAJAPATI(674) for the Petitioner(s) No. 1
MR.ADITYA J PANDYA(6991) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
Date : 03/01/2025
ORAL ORDER
Heard the learned advocates for the parties and perused the record.
2. The present petition has been filed invoking Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act, 1996) on 23.03.2022 after service of notice dated 18.01.2022 under Section 21 of the Act, 1996 upon the respondent. In reply dated 10.02.2022, the respondent had raised a dispute of the invocation of the arbitration clause being barred by limitation, inasmuch as, the dispute sought to be referred to the Arbitrator was after a period of four years.
3. It may be noted that the petitioner herein has filed a Civil Suit namely Special Summary Suit No. 45 of 2011, wherein an application under Section 8 of the Act, 1996 was filed on 16.05.2011 by the respondent. The said application has been Page 1 of 3 Uploaded by C.M. JOSHI(HC01073) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:24:01 IST 2025 NEUTRAL CITATION C/ARBI.P/40/2022 ORDER DATED: 03/01/2025 undefined allowed by judgment and order dated 08.01.2018 by the Civil Court. While dismissing the suit invoking Order VII Rule 11, CPC, the parties were relegated to invoke arbitration clause of the agreement between them.
4. An issue has been raised by the learned counsel for the respondent with regard to the arbitration application being suffering from huge delay. The contention is that the delay beyond the period of three years could not be condoned and this issue can be looked into at the pre-referral stage itself, inasmuch, the arbitration petition is suffering from huge delay.
5. Taking note of the said submissions of the learned counsel for the respondent, suffice it to note that the limitation is mixed question of facts and law, and as has been held by the Apex Court in the case of Bharat Sanchar Nigam Limited and Another vs. Nortel Networks India Private Limited [(2015) 5 SCC 738], normally this question would lie within the domain of the arbitral tribunal. The averments in the reply submitted by the respondent assailing the appointment of the Arbitrator on the ground that it would be of futile exercise for the claims of the petitioner being barred by limitation, would require adjudication at the ends of the Arbitrator.
6. The objections raised by the learned counsel for the respondent at the pre-referral stage of the dispute being barred by limitation and appointment of the Arbitrator, therefore, is turned down.
7. As the parties have not been able to reach at a consensus over the name of the Arbitrator, I allow the application by passing Page 2 of 3 Uploaded by C.M. JOSHI(HC01073) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:24:01 IST 2025 NEUTRAL CITATION C/ARBI.P/40/2022 ORDER DATED: 03/01/2025 undefined the following order :
O R D E R
(i) The petition is ALLOWED.
(ii) Mr. I.C.Shah, retired District Judge, Residence : "Shriji Sharan" Bunglow, Sainath Road, Opp. The Nest Apartment, Near kartikey Nagar - 1, Baroda - 390007 is appointed as sole Arbitrator to resolve the disputes between the parties in accordance with the Arbitration Centre (Domestic and International), High Court of Gujarat Rules, 2021. Both parties would be governed by said Rules.
(iii) Registry is directed to communicate this order to the sole arbitrator forthwith by speed post. No order as to costs.
(iv) Consequently, all pending connected application/s, if any, stands disposed of.
(SUNITA AGARWAL, CJ ) C.M. JOSHI Page 3 of 3 Uploaded by C.M. JOSHI(HC01073) on Thu Jan 09 2025 Downloaded on : Thu Jan 09 21:24:01 IST 2025