The Calcutta High Court allowed reference to an arbitral tribunal under S.11 of the Arbitration and Conciliation Act rejecting the respondent’s claim that S. 14 of the limitation act is not applicable because the petitioner acted in bad faith. The Court observed that the Issues arising out of two work orders can be present in one application when they are identical.
Brief Facts:
The petitioner was engaged as a contractor by the respondent for a project. The petitioner approached the MSME Council. The council asked the petitioner to approach the appropriate forum. The petitioner hence is seeking the appointment of an Arbitrator from the High Court in respect of the disputes arising out of 4 work orders which they claim to be identical.
Contentions of the Respondents:
The Learned Counsel for the Respondents submitted that the petition is not maintainable as the petitioner has clubbed the claims arising out of two separate and distinct work orders where the equipment referred to in the work orders as well as the rates are admittedly different and hence, the petitioner should have made two separate references under each of the work orders. Further, they contended that the claim is barred by limitation as the alleged claims are for the period 2018-2019 and the petitioner is not entitled to get any relief under section 14 of the Limitation Act, 1963 since the MSME Council is not a Court and the petitioner did not initiate the proceedings in “good faith”.
The Court noted that the work orders contain arbitration clauses that stipulate that in the event of any dispute or difference arising out of or in connection with “this work order” and if the parties fail to settle their differences or disputes, the same shall be referred to arbitration.
The Court observed that contrary to the stand taken on behalf of the respondent, there is no difference at all in the scope of work delineated in the two work orders and they are titled the same. Moreover, the work relates to a common project and the second work order is in continuation of the first work order.
The Court said that there is no difference at all in the scope of work delineated in the two work orders and both the work orders are headlined with “Work Order for Hiring Equipment”. There is no material disclosed before the Court to hold that the petitioner is trying to make a composite reference in relation to two different or unconnected work orders. The first ground of objection was therefore rejected.
Further, on the issue of delay, the Court remarked that the delay in the interregnum from 2020-2022 cannot be attributed to the petitioner. The respondent’s argument of the petitioner not being entitled to seek recourse under section 14 of the Limitation Act, 1963 is unacceptable.
The decision of the Court:
The Calcutta High Court, allowing the petition, held that Mr. Arindam Banerjee, Advocate is appointed as the Arbitrator, subject to the learned Arbitrator communicating his consent in the prescribed format to the Registrar.
Case Title: Smt. Bharati Ojha v Simplex Infrastructures Limited
Coram: Hon’ble Justice Moushumi Bhattacharya
Case no.: AP/493/2023
Advocate for the Petitioner: Mr. Supratim Laha, Adv. & Mr. Bikash Shaw, Adv.
Advocate for the Respondents: Mr. Abhishek Banerjee & Adv.Mr. Danyal Ahmad, Adv.
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