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
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/PETN. UNDER ARBITRATION ACT NO. 40 of 2022
==========================================================
BHAKTI CONSTRUCTION
Versus
M/S R C PATEL ENGINEER AND CONTRACTOR
==========================================================
Appearance:
MR HR PRAJAPATI(674) for the Petitioner(s) No. 1
MR.ADITYA J PANDYA(6991) for the Respondent(s) No. 1
==========================================================
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
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
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
