THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
ARBITRATION APPLICATION No.25 of 2023
ORDER:
Mr. V.V.S.N.Raju, learned counsel for the applicant. Mr. CH.Pushyam Kiran, learned counsel for the respondent.
2. This application is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (briefly 'the A&C Act' hereinafter). The applicant seeks appointment of an arbitrator to resolve the dispute between the parties.
3. Facts giving rise to filing of this application briefly stated are that the purchase orders were issued in favour of the applicant on 11.05.2011 and 12.05.2012. The general conditions of the contract annexed to the aforesaid purchase orders provide for resolution of dispute between the parties. Clause 24 of the general conditions of the contract which provides for adjudication of the disputes between the parties reads as under:-
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"24. Arbitration All disputes arising in connection with the contract shall be settled by mutual consultation. If no agreement is reached the dispute shall be settled in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and the rules made there under. The dispute shall be referred for arbitration to any arbitrator to be appointed by the Head of the Unit, BHEL-Hyderabad. The award of the arbitrator shall be final and binding on both the parties. The venue of the Arbitration shall be Hyderabad in India. The Award given by the Arbitrator shall be a speaking award and in English language. All questions, disputes, differences arising under, out of or in connection with this contract shall be exclusive jurisdiction of Sangareddy/Hyderabad Courts, Andhra Pradesh."
4. The applicant invoked the arbitration clause and sent a notice dated 31.07.2015. Reply was sent to the applicant by the respondent on 22.08.2015. Thereafter, for a period of seven years, the applicant did not take any action and again invoked the arbitration clause by sending a notice on 01.08.2022.
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5. Learned counsel for the applicant has relied on a judgment of Supreme Court in M/s. Duro Felguera, S.A. v. M/s. Gangavaram Port Limited 1 and has submitted that the agreement contains an arbitration clause. Therefore, the agreement contains an arbitration clause. Therefore, the matter should be referred to the arbitrator.
6. On the other hand, learned counsel for the respondent has submitted that the claim of the applicant under the agreement is barred by limitation and therefore, the dispute cannot be referred to the arbitration.
7. I have considered the submissions made on both sides and have perused the record.
8. Admittedly, the applicant has invoked the arbitration clause on 31.07.2015. Thereafter for seven long years, the applicant did not take any action and thereafter again sent a notice on 01.08.2022. 1 (2017) 9 SCC 729 ::4::
9. The Supreme Court in B and T AG v. Ministry of Defence 2, in para 58 has held as under:-
"Whether any particular facts constitute a cause of action has to be determined with reference to the facts of each case and with reference to, the substance, rather than the form of the action. If an infringement of a right happens at a particular time, the whole cause of action will be said to have arisen then and there. In such a case, it is not open to a party to sit tight and not to file an application for settlement of dispute of his right, which had been infringed, within the time provided by the Limitation Act, and, allow his right to be extinguished by lapse of time, and thereafter, to wait for another cause of action and then file an application under Section 11 of the Act 1996 for establishment of his right which was not then alive, and, which had been long extinguished because, in such a case, such an application would mean an application for revival of a right, which had long been extinguished under the Act 1963 and is, therefore, dead for all purposes.
Such proceedings would not be maintainable and would obviously be met 2 AIR 2023 SC 2731 ::5::
by the plea of limitation under Article 137 of the Act 1963."
10. Thus, in view of aforesaid enunciation of law, it is evident that the claim of the applicant is ex facie barred by limitation. Therefore, the relief as sought for by the applicant cannot be granted.
11. Accordingly, the Arbitration Application is dismissed. No costs.
As a sequel, miscellaneous petitions, pending if any, stand closed.
_____________________ ALOK ARADHE, CJ Date: 13.10.2023 KL