[Cites 12, Cited by 0]
Calcutta High Court
Zillion Infraprojects Private Limited vs Bridge And Roof Company India Limited on 15 January, 2026
IN THE HIGH COURT AT CALCUTTA
(COMMERCIAL DIVISION)
ORIGINAL SIDE
RESERVED ON: 17.12.2025
DELIVERED ON: 15.01.2026
PRESENT:
HON'BLE JUSTICE GAURANG KANTH
AP-COM 913 OF 2025
ZILLION INFRAPROJECTS PRIVATE LIMITED
VERSUS
BRIDGE AND ROOF COMPANY INDIA LIMITED
Appearance:
Mr. Kishore Datta, Sr. Adv.
Mr. Soumen Das, Adv.
Ms. Aseyaa Chowdhury, Adv.
Mr. Altamas Alim, Adv.
..... for the petitioner
Mr. Shounak Mukhopadhyay, Adv.
Mr. Amit Mehria, Adv.
Ms. Paramita Banerjee, Adv.
Mr. Rohan Raj, Adv.
Mr. Yash Mahmia, Adv.
..... for the respondent
JUDGMENT
Gaurang Kanth, J.:-
1. The Petitioner, by way of the present Petition under Section 34 of the
Arbitration and Conciliation Act, 1996 ("the Act"), has assailed the interim
arbitral award dated 28.08.2025 passed by the learned Sole Arbitrator,
whereby Claim Nos. 2 to 9 raised by the Petitioner were held to be barred by
limitation.
2. At the outset, learned counsel appearing for the Respondent raised a
preliminary objection with regard to the maintainability of the present
petition. Accordingly, the present judgment is confined solely to the
adjudication of the said preliminary objection.
3. The material facts necessary for the disposal of the preliminary objection
raised by the Respondent are set out hereinafter.
4. The present petition arises out of a tender issued for the structural works in
respect of the Alumina Refinery Project of Utkal Alumina International
Limited (UAIL) at Rayagada, Odisha. UAIL awarded the structural and
pipeline works to the Respondent, who, in turn, subcontracted the said
works to the Petitioner. The total contractual value of the subcontract works
was Rs. 11,82,90,150/-. There was a delay of 419 days in the completion of
the works, which, according to the Petitioner, was occasioned by defaults
attributable to the Respondent. Due to the non-payment of the outstanding
dues, the Petitioner invoked the arbitration clause. Upon a petition filed by
the Petitioner under Section 11 of the Act, this Court constituted the Arbitral
Tribunal. The Petitioner thereafter filed its Statement of Claim seeking an
award of Rs. 3,01,78,450/- under nine distinct heads.
5. The Respondent filed an application under Section 16 of the Act, contending
that Claim Nos. 2 to 9 raised by the Petitioner in the Statement of Claim
were barred by limitation.
6. By an interim award dated 28.08.2025, the Arbitral Tribunal allowed the
said application and held that Claim Nos. 2 to 9 raised by the Petitioner were
barred by limitation.
7. Aggrieved by the interim award dated 28.08.2025, the Petitioner has
preferred the present petition under Section 34 of the Act, assailing the said
interim arbitral award.
Submission on behalf of the Respondent
8. Mr. Shounak Mukhopadhyay, learned senior counsel for the Respondent
contended that, by the impugned interim award, the learned Sole Arbitrator
allowed the Respondent's application under Section 16 read with Section 17
of the Arbitration and Conciliation Act, 1996, and rejected Claim Nos. 2 to 9
of the Petitioner on the ground of limitation. It was submitted that such
determination constitutes a jurisdictional ruling within the meaning of
Section 16 of the Act. Consequently, according to the Respondent, the
statutory remedy available to the Petitioner lies by way of an appeal under
Section 37(2) of the Act, and not by invocation of Section 34 of the Act. In
support of this contention, reliance was placed on the judgments of the
Hon'ble Supreme Court in Deep Industries Ltd. v. ONGC reported as (2020)
15 SCC 706, Uttarakhand Purva Sainik Kalyan Nigam Limited v.
Northern Coalfields Limited, reported as (2020) 2 SCC 455, as well as the
decision of the Hon'ble Division Bench of this Court in Board of Trustees
for the Shyama Prasad Mukharjee Port v. Marincraft Engineers Pvt.
Ltd., APO 60 of 2022.
Submission on behalf of the Petitioner
9. Mr. Kishore Datta, learned Senior Counsel appearing for the Petitioner,
however, controverted the aforesaid objection. It was submitted that, by
virtue of the impugned award, the learned Sole Arbitrator has finally and
conclusively rejected Claim Nos. 2 to 9 raised by the Petitioner. It was argued
that, insofar as the said claims are concerned, the arbitral proceedings stand
terminated, and the impugned order, to that extent, amounts to a final
adjudication of the rights of the parties. Consequently, it was contended that
the impugned order answers the description of an "interim award" within the
meaning of Section 2(1)(c) of the Arbitration and Conciliation Act, 1996, and
is, therefore, amenable to challenge under Section 34 of the Act. In support
of the said contention, reliance was placed on the judgments of the Hon'ble
Supreme Court in BSNL v. Nortel Networks India Pvt. Ltd., reported as
(2021) 5 SCC 738, and Indian Farmers Fertilizers Co-operative Ltd. v.
Bhadra Products, reported as AIR 2018 SC 62.
Legal Analysis
10. This Court has considered the rival submissions advanced by the learned
counsel for the parties on the issue of maintainability and has perused the
judgments relied upon by them.
11. The preliminary objection raised by the Respondent necessitates an
examination of the true nature and legal character of the impugned order
dated 28.08.2025, and, consequently, the determination of the appropriate
statutory remedy available to the Petitioner under the scheme of the Act.
12. At the outset, it is well settled that the nomenclature assigned to an order by
the arbitral tribunal is not determinative; rather, it is the substance and
effect of the order that governs the issue of maintainability. The Court must
therefore ascertain whether the impugned determination is in the nature of a
jurisdictional ruling under Section 16 of the Act, amenable to an appeal
under Section 37(2), or whether it constitutes an interim award finally
deciding certain claims, thereby attracting a challenge under Section 34.
13. The Arbitral Tribunal while deciding the said application, held as under:
"It is clear to this Ld. Tribunal that since Claim No. 2 to 9
do not form part of the final and RA Bills pertaining to the
Claim No. 1 and are separately distinguishable, the bar of
limitation would apply, having expired three years, from
the date of completion of the project on 30.10.2013, i.e, on
and by 30.10.2016. Since the limitation expired much prior
to the imposition of the Moratorium on 5th February, 2019,
the Claim Nos 2 to 9 are precluded from obtaining the
benefit of such Moratorium. This Tribunal is of the further
view that Clause 35.1 of the GCC stating, inter alia, that
the contract would be alive, would have arguably applied
to Claim No. 2 to 9 if and only if (vide Table at paragraph B
supra) comprising the totality of Claim No. 2 to 9 were not
part of the Final Bill and RA Bills raised separately in this
arbitration."
14. A plain reading of the aforesaid extract demonstrates that the Arbitral
Tribunal has not merely returned a prima facie or procedural finding, but
has undertaken a substantive adjudication on the issue of limitation, leading
to the outright rejection of Claim Nos. 2 to 9. The Tribunal has recorded a
definitive conclusion as to the commencement and expiry of the period of
limitation, rejected the applicability of the moratorium, and further
construed Clause 35.1 of the GCC to hold that the said claims stood
excluded from its protective ambit. The consequence of such determination
is that, insofar as Claim Nos. 2 to 9 are concerned, the rights of the parties
stand finally determined, leaving nothing further to be adjudicated by the
Tribunal in respect thereof.
15. The Respondent has placed reliance on the decisions of the Hon'ble Supreme
Court in Deep Industries Ltd. (supra) and Uttarakhand Purva Sainik
Kalyan Nigam Limited (supra) to contend that judicial interference at an
interlocutory stage of arbitral proceedings must be minimal and that orders
passed under Section 16 are specifically appealable under Section 37,
thereby impliedly excluding recourse under Section 34. In Deep Industries
Ltd. (supra), the Hon'ble Supreme Court underscored the legislative intent of
restricting court intervention during the pendency of arbitral proceedings
and cautioned against entertaining challenges that would derail the arbitral
process. Similarly, in Uttarakhand Purva Sainik Kalyan Nigam Limited
(supra), the Hon'ble Supreme Court reiterated that a party aggrieved by a
jurisdictional ruling of the arbitral tribunal must ordinarily avail the remedy
prescribed under Section 37, and that courts ought not to bypass the
statutory framework. Similarly, the decision of the Hon'ble Division Bench of
this Court in Board of Trustees for the Shyama Prasad Mukharjee Port
(supra), reiterates that orders passed by the arbitral tribunal which do not
finally determine the rights of the parties are ordinarily not amenable to
challenge under Section 34 of the Act.
16. There can be no quarrel with the aforesaid propositions. However, the said
judgments proceed on the premise that the order under challenge is a pure
jurisdictional ruling, whereby the arbitral tribunal either accepts or rejects
its competence to adjudicate the dispute, without finally determining the
substantive rights of the parties.
17. On the other hand, the Petitioner has relied upon the decisions of the
Hon'ble Supreme Court in Indian Farmers Fertilizers Co-operative Ltd.
(supra) and Nortel Networks India Pvt. Ltd. (supra), which elucidate the
legal contours of an "interim award" under Section 2(1)(c) of the Act. In
Indian Farmers Fertilizers Co-operative Ltd. (supra), the Hon'ble
Supreme Court authoritatively held that a determination on limitation which
finally disposes of a claim is not merely a procedural or interlocutory order,
but partakes the character of an interim award, since it conclusively
adjudicates the rights of the parties in respect of that claim. The Court
observed that when an arbitral tribunal decides an issue of limitation in a
manner that results in the rejection of claims, such determination is final
insofar as those claims are concerned.
18. The aforesaid principle was further reinforced in Nortel Networks India
Pvt. Ltd. (supra), wherein the Hon'ble Supreme Court held that a finding on
limitation that results in the termination of arbitral proceedings with respect
to certain claims constitutes an interim award amenable to challenge under
Section 34. The Court clarified that the decisive test is whether the order
finally determines the rights of the parties with respect to the subject-matter
of the claim, and not whether the arbitral proceedings continue in respect of
the remaining claims.
19. Applying the aforesaid principles to the facts of the present case, it is evident
that the impugned interim award does not merely decide the competence of
the arbitral tribunal in abstract terms. By allowing the Respondent's
application and holding Claim Nos. 2 to 9 to be barred by limitation, the
learned Sole Arbitrator has finally and conclusively rejected the said claims,
resulting in the termination of arbitral proceedings insofar as those claims
are concerned. No further adjudication survives in respect thereof.
20. While it is true that the objection was raised under Section 16 of the Act, the
mere invocation of Section 16 cannot be determinative of the nature of the
order. Once the tribunal's determination transcends a threshold
jurisdictional enquiry and culminates in the final disposal of substantive
claims, the order ceases to be interlocutory in nature and assumes the
character of an interim award within the meaning of Section 2(1)(c) of the
Act.
21. In such circumstances, the statutory appeal under Section 37(2) would not
be an efficacious or appropriate remedy, as Section 37 is designed to address
orders either accepting or rejecting jurisdiction at a preliminary stage, and
not awards, whether interim or final, that conclusively determine claims. The
Act expressly provides that an arbitral award, including an interim award,
may be challenged only under Section 34, and no appeal is maintainable
therefrom save as expressly provided.
22. Accordingly, this Court is of the view that the judgments relied upon by the
Respondent operate in a distinct factual and legal context, where the arbitral
tribunal had not finally adjudicated upon the claims themselves. In contrast,
the ratio laid down in Indian Farmers Fertilizers Co-operative Ltd. (supra)
and Nortel Networks India Pvt. Ltd. (supra) squarely applies to the present
case, where the impugned order results in the irreversible extinguishment of
Claim Nos. 2 to 9.
23. In view thereof, this Court is of the considered view that the impugned order,
to the extent it rejects Claim Nos. 2 to 9, partakes the character of an
interim award and is amenable to challenge under Section 34 of the
Arbitration and Conciliation Act, 1996. The preliminary objection raised by
the Respondent as to the maintainability of the present petition is therefore
rejected.
24. Upon rejection of the preliminary objection, list the matter in the monthly
list of March, for consideration on merits.
25. Both parties are at liberty to file the additional documents which were part of
the Arbitral Records.
(GAURANG KANTH, J.)
SAKIL AMED P.A.
