Orissa High Court
M/S. Modi Projects Ltd vs Jindal Steel & Power And Another .... ... on 12 February, 2025
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
ARBP No.61 of 2022
M/s. Modi Projects Ltd., Ranchi .... Petitioner
Represented by Adv.-
Mr. U. C. Behura, Advocate
-versus-
Jindal Steel & Power and another .... Opposite Parties
Represented by Adv.-
Mr. S. S. Mohanty, Advocate
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA,
ACTING CHIEF JUSTICE
ORDER
Order No. 12.02.2025
08. 1. Mr. Behura, learned advocate appears on behalf of petitioner
and submits, disputes and differences exist as arisen under work
order dated 5th September, 2013. His client executed the work. The
work order carries arbitration agreement by clause 11. The clause is
reproduced below.
"Clause 11 Arbitration:
11.1 Arbitration, if arises, shall be resolved in accordance
with the Indian Arbitration and Conciliation Act 1996
with the latest revisions.
11.2 Any dispute arising out of this contract shall only be
subject to the jurisdiction of only Angul Court."
The clause does not provide for a procedure of appointment. His
client seeks appointment of arbitrator to enter into the reference.
2. Mr. Mohanty, learned advocate appears on behalf of opposite
party (employer). He submits, alleged claims are deadwood. They
are barred by limitation. The Supreme Court has declared the law
regarding Court having power to refuse to make the reference.
3. He relies on judgment of the Supreme Court in Bharat
Sanchar Nigam Limited v Nortel Networks India Private
Limited reported in (2021) 5 SCC 738, paragraphs 45.1, 53.1 and
53.2. Paragraphs 53.1 and 53.2 from Bharat Sanchar Nigam
Limited (supra), are reproduced below.
"53.1. The period of limitation for filing an application
under Section 11 would be governed by Article 137 of the
First Schedule of the Limitation Act, 1963. The period of
limitation will begin to run from the date when there is
failure to appoint the arbitrator. It has been suggested
that Parliament may consider amending Section 11 of the
1996 Act to provide a period of limitation for filing an
application under this provision, which is in consonance
with the object of expeditious disposal of arbitration
proceedings.
53.2. In rare and exceptional cases, where the claims are
ex facie time-barred, and it is manifest that there is no
subsisting dispute, the Court may refuse to make the
reference."
4. Sub-section (6-A) was inserted by amendment on Act 3 of
2016, given retrospective effect from 23rd October, 2015.
Subsequently, by Act 33 of 2019 [section 3 (v)] sub-section (6-A)
stood omitted. However, date of enforcement of the provision in
said Act 33 of 2019 is yet to be notified. As such sub-section (6-A)
still appears in the statute book. The provision is reproduced below.
"(6-A) The Supreme Court or, as the case may be, the
High Court, while considering any application under sub-
section (4) or sub-section (5) or sub-section (6), shall,
notwithstanding any judgment, decree or order of any
Court, confine to the examination of the existence of an
arbitration agreement."
(emphasis supplied)
In the circumstances, this Court can only interpret paragraphs 53.1
and 53.2 in Bharat Sanchar Nigam Limited (supra) as view taken
and directions made by the Supreme Court in exercise of power
under article 142 in the Constitution of India. Provision in sub-
section (6-A) is clear in its application, notwithstanding, inter alia,
any judgment, decree or order of any Court.
5. Justice Mr. M. M. Das (Retired) is appointed as sole arbitrator
to enter into the reference.
6. The arbitration petition is disposed of.
(Arindam Sinha)
Acting Chief Justice
M. Panda
Signature
Not Verified
Digitally Signed
Signed by:
MRUTYUNJAYA
PANDA
Designation:
Secretary
Reason:
Authentication
Location: High Court
of Orissa, Cuttack
Date: 12-Feb-2025
20:13:51
