Sendoz Commercial Private Limited vs Irel (India) Limited .... Opposite ...
2025 Latest Caselaw 1228 Ori

Orissa High Court

Sendoz Commercial Private Limited vs Irel (India) Limited .... Opposite ... on 15 July, 2025

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                         ARBP No.40 of 2024


Sendoz Commercial Private Limited             ....              Petitioner

                                 -Versus-

IREL (India) Limited                          ....        Opposite Party



Advocates appeared in this case:

For Petitioner            : Mr. Sreejit Mohanty, Advocate

For Opposite Party        : Mr. Ipsit Aurobindo Acharya, Advocate

CORAM:

                 THE HON'BLE THE CHIEF JUSTICE

                           JUDGMENT

15th July, 2025

HARISH TANDON, CJ.

1. An application under Section 11(6) of the Arbitration and

Conciliation Act, 1996 is taken out by the petitioner for appointment of

an arbitrator upon invoking the arbitration agreement entered into by

and between the parties for supply of the coals after the petitioner

having adjudged as a successful bidder in the notice inviting tender

floated by the opposite party.

2. Shorn of unnecessary details, the opposite party being a

Government of India undertaking floated an e-tender for supply of 8000

MT of coal of a specified quality to Odisha Sands Complex at

Matikhala, Chhatrapur in Ganjam District of Odisha on 18.11.2019.

Pursuant to the said tender, the petitioner participated by depositing the

earnest money and was subsequently declared as a successful bidder.

The purchase order was issued for supply of the aforementioned

quantity of coal with Gross Calorific Value (GCV) of 2800 to 3400

Kcal/kg in staggered manner within four months from the date of

issuance of the said purchase order. The purchase order further

stipulated the deposit of an amount equal to 5% of the total value of the

contract as security deposit in the form of irrevocable Bank guarantee

which in fact was duly complied with.

3. The petitioner supplied the coal on diverse dates and raised the

invoices in terms of the price agreed upon and the payment was also

released by the opposite party from time to time. The dispute arose on

supply of 4044.52 MT of coal amounting to Rs.1,83,57,886/- on

22.02.2020 when the opposite party through an e-mail dated 25.02.2020

rejected the said lot as the GCV of the coal did not meet the required

specifications.

4. The genesis of the dispute between the parties originated on the

rejection of the said lots as the coal does not contain the requisite

specifications in terms of the agreement entered into between the

parties and its invocation by the petitioner which led the adjudication to

be made through an arbitral process.

5. The notice inviting tender floated by the opposite parties

contained the general terms and conditions of an agreement

encompassing various terms and conditions including an arbitration

agreement in the event of a dispute having arisen between the parties in

relation to supply of the coal. It further imbibed within itself a manner

of testing of the materials so supplied postulating the mechanism of

drawing sample with further stipulation to have such sample tested in

any Government Laboratory in the event the parties are not ad idem on

the test report of the laboratory chosen by the opposite party. Since the

GCV found by the opposite party does not meet the specification, the

sample was drawn by the opposite party to be tested in the laboratory of

the opposite party, the petitioner invoked the clause relating thereto for

drawing a sample to be tested in any Government Laboratory. Several

correspondences were exchanged between the parties for drawing

sample and ultimately the sample was drawn in presence of the

representative of the petitioner and the opposite party and sent to the

National Meteorological Laboratory (NML), Jamshedpur on

14.08.2020. There was a complete silence on the part of the opposite

party on the report submitted by the said Government Laboratory until

25.09.2020. When the representative of the opposite party verbally

communicated to the petitioner that the report of the Government

Laboratory indicates the requisite specification meaning thereby the

requisite GCV of the coal so supplied is in conformity with the

specifications, immediately, an e-mail was issued on 25.09.2020 to

release the payment of the said quantity but the opposite party did not

respond to the same. Several reminders through e-mail were sent to the

opposite party between 19.10.2020 and 05.11.2020 yet the opposite

party remained silent thereupon. Ultimately, the petitioner could obtain

a copy of the test report issued by NML, Jamshedpur on 11.09.2020

wherefrom it appears that two samples were tested on two different

dates, out of which one sample which was mutually selected contained

the requisite GCV values of 3275.6 Kcal/Kg and other sample

contained 3580.5 Kcal/Kg which were above the minimum GCV of

2800 Kcal/Kg. Despite such report issued by said Government

Laboratory, no payment was released which constrained a legal notice

dated 12.11.2020 to be issued by the petitioner for return of the original

performance bank guarantee, payment of value of 4404.52 MT of coal,

the release of the earnest money deposit and the payment of

compensation for wrongful withholding of the money totaling

Rs.1,97,36,684/-. The said notice was duly replied on 17.02.2021

wherein the opposite party admitted the factum of the report submitted

by NML, Jamshedpur but arbitrarily refused to accept the said report.

The petitioner thereafter approached the National Company Law

Tribunal (NCLT), Mumbai Branch by initiating Corporate Insolvency

Resolution Process under Section 9 of the Insolvency and Bankruptcy

Code, 2016 which was registered as CP (IB)-552/MB/2021. The said

proceeding ended in dismissal on the order dated 24.02.2023 and the

said order is assailed before the National Company Law Appellate

Tribunal, which is still pending. Subsequently, on 22.03.2023 the

petitioner served a notice under Section 21 of the Arbitration and

Conciliation Act, 1996 invoking arbitration agreement calling upon the

opposite party to agree on any one of the five persons named therein to

act as the sole arbitrator for resolution of the disputes arose between the

parties. The opposite party responded to the said notice on 03.04.2023

refusing to agree on appointment of the arbitrator so named in the said

notice upon taking a plea that the same cannot be treated as a notice

under Section 21 of the said Act being not in conformity with the said

arbitration agreement.

6. Perceiving the said notice as refusal to agree on the appointment

of arbitrator, the application under Section 11(6) of the said Act is filed

by the petitioner before this Court for appointment of an arbitrator.

7. The opposite party filed a counter affidavit reiterating the stand

taken which reflected in several correspondences exchanged between

the parties that the quantity of the coal so supplied is not in conformity

with the specifications. Apart from the same, a plea of limitation is also

taken as the claim as well as the application under Section 11(6) of the

Act is hopelessly barred.

8. Learned counsel appearing for the respective parties made their

extensive arguments not only touching upon the claim being barred by

limitation but also an application having filed under Section 11(6) of

the said Act being belated. The entire argument hovers around the

period of limitation and applicability of the provisions relating to the

Limitation Act, which in our opinion is required to be determined in the

instant matter.

9. The facts, as unfurled, indicate that pursuant to the e-tender

notice floated on 18.11.2019, the petitioner participated and was

adjudged as the successful bidder, the purchase order was subsequently

issued containing various terms and conditions including a clause

relating to the test to be conducted for the goods so supplied which

required recapitulation before I proceed to decide the points so urged

before me. Clause 3.4 of the purchase order is reproduced as under:-

"3.0. Tests: Tests will be carried out by IREL (INDIA) LIMITED's Laboratory or by Third Party Agencies (testing agency) deputed by IREL. Samples may be collected from IREL (INDIA) LIMITED Plant jointly for tests. You may depute your representative to witness sampling of coal by IREL (INDIA) LIMITED and/or collection of sample. If your representative is not present at the time of collecting the sample, the sample collected by IREL (INDIA) LIMITED's representative will be sent for testing. The results of the test carried out at IREL (INDIA) LIMITED lab shall be treated for adjustments in payments. Cost of collecting samples and testing in lab shall be borne by IREL (INDIA) LIMITED. If you are not satisfied with the test results, you may ask for referee sample to be tested in a government lab whose results shall be final and binding. You shall have to bear the cost of such test in the government lab and the same shall be deposited by you to IREL (INDIA) LIMITED. Sample collection, sample, preparation, analysis and testing at

destination shall be done as per latest IS standards. (IS:

1350 latest revision)"

10. On a meaningful reading of the said clause, it is manifest that the

opposite party will carry out the test of the goods so supplied upon

drawing the sample therefrom to ascertain as to whether the said goods

meets the specification as agreed upon. It further postulates that in the

event the test conducted in the laboratory of the opposite party is not

accepted by the petitioner, it may request for referee sample in the

Government Laboratory and the report of the Government Laboratory

shall be final and binding. It is not in dispute that the testing report of

the opposite party‟s laboratory was not accepted by the petitioner and

several correspondences were exchanged for drawing the sample in

presence of the representative of the parties which consumed a

considerable period of time because of the ongoing pandemic.

Ultimately, the sample was mutually drawn on 14.08.2020 and was sent

to the NML, Jamshedpur, a government laboratory under the Council of

Scientific and Industrial Research but the report was not communicated

to the petitioner despite several reminders having made in this regard.

The petitioner came to know the result of the said test on 25.09.2020

when he was verbally communicated by one of the employees of the

opposite party that it meets the specification as agreed upon.

Immediately the letters were issued by the petitioner to make the

payment on the basis of such verbal communication but there was no

response from the opposite party. The petitioner could able to collect

the copy of the test report issued by the NML, Jamshedpur on

11.09.2020 and after noticing that the stand of the opposite party is not

correct, the demand for release of the payment was made perceiving

such report to be final and binding on the parties. A notice dated

12.11.2020 was issued for release of the price of the goods, return of the

original performance bank guarantee, return of the earnest money

deposit and the compensation for unreasonable withholding of the

amount. The said notice was replied on 17.02.2021 by the opposite

party refusing to accept the report of the Government Laboratory

despite having admitted that the said report indicated the requisite GCV

of the supplied coal.

11. Clause 12 of the purchase order dated 28.01.2020 contains the

arbitration agreement in the following:

"12.0 Arbitration:

All questions, dispute and differences whatsoever arising between the parties out of the terms and conditions of the contract whether during the progress of the contract or after completion or abandonment there off at the request of the aggrieved parties in writing shall be referred to the sole arbitration of the person appointed by chairman & Managing Director,

IREL (India) Limited. The provisions of the Arbitration and Conciliation Act 1996 as amended from time to time shall apply to the arbitration proceedings. The Place of Arbitration shall be OSCOM Unit, IREL (India) Limited where the contract has been executed."

12. The notice dated 22.03.2023 was issued by the petitioner

invoking the said arbitration clause wherein five names were disclosed

calling upon the opposite party to agree on any one of them in

conformity with the provisions contained under Section 21 of the said

Act. The opposite party refused to accede the request on agreed any one

of the five names disclosed in the said notice in its reply dated

03.04.2023 and therefore, the plea of limitation taken by the opposite

party required to be taken into account on the basis of the refusal to

agree upon the name of the arbitrator to be appointed.

13. The arbitration agreement as quoted hereinabove postulates that

in the event any dispute or differences arise between the parties in

relation to the terms and conditions of the contract, the same shall be

referred to the sole arbitration of a person appointed by the Chairman

and the Managing Director of the opposite party. A plea sought to be

taken by the petitioner that such mechanism is not in consonance with

the spirit of the Arbitration and Conciliation Act and, therefore, there is

no fetter on the part of the Court to appoint an independent arbitrator

solely on the ground that by virtue of an amendment having brought

subsequently in the said Act, the person who has the remotest interest in

relation to a dispute cannot act as an Arbitrator.

14. The apex Court in Central Organisation for Railway

Electrification Vs. M/s. ECI SPIC SMO MCML (JV) A Joint Venture

Company reported in (2025) 4 SCC 641 was considering a point

whether an arbitration agreement conferring the right on one party to

unilaterally appoint a sole arbitrator may give rise to justiciable doubts

on the independence and impartiality of such arbitrator. The majority

judgments rendered by five Judge Bench of the apex Court took into

account the various provisions of the Arbitration and Conciliation Act

including Section 12 thereof on the independence and impartiality of the

arbitrators in relation to the justiciable doubts as to the independence

and impartiality. The apex Court was considering the position of law as

it stood before and after 2015 amendment having brought in the said

statute. The Bench noticed that prior to 2015 amendment, one party

autonomy exercising the unfettered discretion to appoint the sole

arbitrator was held to be the spirit of the said Act with the rider that

there could be a justifiable apprehension on the independence or

impartiality of the employee arbitrator who was the controlling or

dealing authority regarding subject contract. After the 2015 amendment,

it is mandatory on the arbitrators to make disclosure before their

appointment in terms of the categories specified under 5 th Schedule

which is noticeable by incorporating Section 12(5) of the said Act. The

Bench was also considering the arbitration agreement between an

individual and the company owned and controlled by the Government

in juxtaposition within its impact on an arbitral award. It is

unequivocally held that the Arbitration Act does not make a distinction

between the public-private arbitrations and the private arbitrations and,

therefore, imbibed within itself the right to appointment of arbitrators,

the conduct of all arbitration proceedings and setting aside and

enforcement of the arbitral awards in a uniform manner. The

independence and impartiality of the arbitral proceedings and equalities

of the parties is the concomitant principles furthering the concept of

equal participation of the parties at all stages of the arbitral proceeding.

The likelihood of the bias was also considered extensively in the

majority judgments which led to an ultimate conclusion to be arrived in

the following:

"170. In view of the above discussion, we conclude that:

170.1. The principle of equal treatment of parties applies at all stages of arbitration proceedings, including the stage of appointment of arbitrators;

170.2. The Arbitration Act does not prohibit PSUs from empanelling potential arbitrators. However, an arbitration clause cannot mandate the other party to select its arbitrator from the panel curated by PSUs;

170.3. A clause that allows one party to unilaterally appoint a sole arbitrator gives rise to justifiable doubts as to the independence and impartiality of the arbitrator.

Further, such a unilateral clause is exclusive and hinders equal participation of the other party in the appointment process of arbitrators;

170.4. In the appointment of a three-member panel, mandating the other party to select its arbitrator from a curated panel of potential arbitrators is against the principle of equal treatment of parties. In this situation, there is no effective counterbalance because parties do not participate equally in the process of appointing arbitrators. The process of appointing arbitrators in CORE [Central Organisation for Railway Electrification v. ECI-SPIC-SMO-MCML (JV), (2020) 14 SCC 712] is unequal and prejudiced in favour of the Railways;

170.5. Unilateral appointment clauses in public-private contracts are violative of Article 14 of the Constitution;

170.6. The principle of express waiver contained under the proviso to Section 12(5) also applies to situations where the parties seek to waive the allegation of bias against an arbitrator appointed unilaterally by one of the parties. After the disputes have arisen, the parties can determine whether there is a necessity to waive the nemo judex rule; and 170.7. The law laid down in the present reference will apply prospectively to arbitrator appointments to be made after the date of this judgment. This direction applies to three-member tribunals."

15. The meaningful reading of the ratio decidendi culled out from the

above noted decision, leaves no ambiguity that there is no fetter on the

part of the Court to appoint an arbitrator, in the event there is a

likelihood of bias in appointment of the arbitrator by a party to the

contract who is directly or indirectly involved in the subject contract.

16. The plea of limitation is taken by the opposite party in the

counter affidavit filed to the application under Section 11 of the said

Act. It is specifically averred therein that the moment the invoice dated

22.02.2020 was rejected on 25.02.2020, the period of limitation would

commence from the said date and, therefore, the notice invoking

arbitration agreement under Section 21 of the said Act issued on

22.03.2023 is ex-facie barred.

17. Reliance appears to have been placed upon the various judgments

on the applicability of the provisions of the Limitation Act, 1996 at the

time of considering an application under Section 11 of the said Act. In

case of M/s. B & TAG Vs. Ministry of Defence, reported in AIR 2023

SC 2731, the three Judge Bench of the apex Court was considering a

plea whether the time barred claims or the claims which are barred by

limitation can be said to be live claims amenable to be referred to

arbitration. The Bench took note of an earlier judgment of the apex

Court in Bharat Sanchar Nigam Limited Vs. Nortel Networks India

Pvt. Ltd. reported in (2021) 5 SCC 738 where the apex Court after

taking into consideration the several provisions of the Act held that if

the claim is ex-facie time barred, there is no fetter on the part of the

Court in refusing to make reference under Section 11 of the said Act. It

is highlighted that the standard of scrutiny in examining the non-

arbitrability of the claim is mere tentative and the safeguard must be

taken on the full review of the contested claims. The refusal to appoint

the arbitrator can only be made, if there is no scintilla of doubt that the

claim is non-arbitrable. The emphasis was put on the expression „right

to apply accrues‟ which is required to be ascertained on the given facts

and should not be applied in an abstract manner.

18. In Arif Azim Company Limited vs. Aptech Limited, reported in

(2024) 5 SCC 313, the three Judge Bench of the Supreme Court was

considering whether the Court may refuse to make a reference under

Section 11 of the Act when the claim are ex-facie and hopelessly time

barred. The Bench noticed the provisions contained under Section 43 of

the Act which clearly postulates that the Limitation Act, 1963 shall

apply to the arbitration as it applies to a proceeding in the Court. The

distinction was sought to be drawn in the said report between a case

which on the face of it, is time barred to a case, which may be time

barred but the claim cannot be adjudicated at such stage as the plea of

limitation becomes debatable depending upon the quality of evidence to

be adduced, in the following:-

"67. This Court in BSNL [BSNL v. Nortel Networks (India) (P) Ltd., (2021) 5 SCC 738] , explained the difference between the aforesaid two category of objections and held that the issue of limitation is essentially an admissibility issue and is not a challenge to the jurisdiction of the arbitrator to decide the claim. While placing reliance on the decision of the Singapore Court of Appeal in Swissbourgh Diamond Mines (P) Ltd. v. Kingdom of Lesotho [Swissbourgh Diamond Mines (P) Ltd. v. Kingdom of Lesotho, (2019) 1 SLR 263] , this Court explained the "tribunal versus claim" test thus:

"43. Applying the "tribunal versus claim" test, a plea of statutory time bar goes towards admissibility as it attacks the claim. It makes no difference whether the applicable statute of limitations is classified as substantive (extinguishing the claim) or procedural (barring the remedy) in the private international law sense.

44. The issue of limitation which concerns the "admissibility" of the claim, must be decided by the Arbitral Tribunal either as a preliminary issue, or at the final stage after evidence is led by the parties."

68. Although, limitation is an admissibility issue, yet it is the duty of the Courts to prima facie examine and reject non-arbitrable or dead claims, so as to protect the other party from being drawn into a time-consuming and costly arbitration process.

xxx xxx xxx

70. The scope of this primary examination has been carefully laid down by a three-Judge Bench of this Court in Vidya Drolia v. Durga Trading Corpn. [Vidya Drolia v. Durga Trading Corpn., (2021) 2 SCC 1 : (2021) 1 SCC (Civ) 549] as follows :

(SCC pp. 119 & 121, paras 148 & 154.4)

"148. Section 43(1) of the Arbitration Act states that the Limitation Act, 1963 shall apply to arbitrations as it applies to court proceedings. Sub-section (2) states that for the purposes of the Arbitration Act and the Limitation Act, arbitration shall be

deemed to have commenced on the date referred to in Section

21. Limitation law is procedural and normally disputes, being factual, would be for the arbitrator to decide guided by the facts found and the law applicable. The court at the referral stage can interfere only when it is manifest that the claims are ex facie time-

barred and dead, or there is no subsisting dispute. All other cases should be referred to the Arbitral Tribunal for decision on merits. Similar would be the position in case of disputed "no-claim certificate" or defence on the plea of novation and "accord and satisfaction". As observed in Premium NaftaProducts Ltd. [Fili Shipping Co. Ltd. v. Premium Nafta Products Ltd., 2007 UKHL 40 : 2007 Bus LR 1719 (HL)] , it is not to be expected that commercial men while entering transactions inter se would knowingly create a system which would require that the court should first decide whether the contract should be rectified or avoided or rescinded, as the case may be, and then if the contract is held to be valid, it would require the arbitrator to resolve the issues that have arisen.

***

154. ... 154.4. Rarely as a demurrer the court may interfere at Section 8 or 11 stage when it is manifestly and ex facie certain that the arbitration agreement is non-existent, invalid or the disputes are non-arbitrable, though the nature and facet of non- arbitrability would, to some extent, determine the level and nature of judicial scrutiny. The restricted and limited review is to check and protect parties from being forced to arbitrate when the matter is demonstrably "non-arbitrable" and to cut off the deadwood. The court by default would refer the matter when contentions relating to non-arbitrability are plainly arguable; when consideration in summary proceedings would be insufficient and inconclusive; when facts are contested; when the party opposing arbitration adopts delaying tactics or impairs conduct of arbitration proceedings. This is not the stage for the court to enter into a mini trial or elaborate review so as to usurp the jurisdiction of the Arbitral Tribunal but to affirm and uphold integrity and efficacy of arbitration as an alternative dispute resolution mechanism."

(emphasis supplied)

19. In a recent judgment rendered in the case of Aslam Ismail Khan

Deshmukh Vs. ASAP Fluids Private Limited and another reported in

(2025) 1 SCC 502 the apex Court upon taking into consideration the

various judgments touching upon the plea of limitation including Arif

Azim Company Limited (supra), reiterated the proposition that

ordinarily the Court should not enter into the plea of limitation in

relation to a claim and the accrual of a right to claim relief at the stage

of appointment of an arbitrator under Section 11 of the said Act, but

there is no fetter on the part of the Court to reject the said application, if

the claim is ex-facie time barred in the following:

"51. It is now well-settled law that, at the stage of Section 11 application, the referral Courts need only to examine whether the arbitration agreement exists -- nothing more, nothing less. This approach upholds the intention of the parties, at the time of entering into the agreement, to refer all disputes arising between themselves to arbitration. However, some parties might take undue advantage of such a limited scope of judicial interference of the referral Courts and force other parties to the agreement into participating in a time- consuming and costly arbitration process. This is especially possible in instances, including but not limited to, where the claimant canvasses either ex facie time-barred claims or claims which have been discharged through "accord and satisfaction", or cases where the impleadment of a non-signatory to the arbitration agreement is sought, etc."

20. The cumulative effect of the judgments as referred hereinabove

leads to an exposition of law that there is a limited scope of scrutiny in

an application under Section 11 of the said Act on the applicability of

the Limitation Act. Ordinarily the plea of limitation should be left open

to the Arbitral Tribunal to decide as preliminary issue. However, in an

exceptional case where the Court finds that the claim is ex-facie time

barred, it would be burdensome on the parties to undergo the process of

arbitration, which is not cost effective but at times a time consuming

one.

21. On the conspectus of the above law, let me examine whether the

plea of limitation taken by the opposite party is sustainable more

particularly whether the same is ex-facie time barred. The agreement

contains a specific provision with regard to the test which is quoted

hereinabove where the absolute authority was given to the opposite

party to take a sample and send it for testing in its laboratory and in the

event, the result of the said test is not acceptable, the petitioner may

apply for drawing of a sample in presence of the parties and send it to

the Government Laboratory for its testing whose result shall be final

and binding on the parties.

22. The meaningful reading of the said clause does not indicate that

the moment the report of the testing of the material does not confine to

the specifications it remained binding on the parties; on the other hand a

further opportunity is given to the petitioner to ask for reference sample

to be drawn in presence of the representatives of the parties to be tested

in the Government Laboratory, the result whereof shall be final. The

shelter appears to have been taken under clause 4 of the said agreement

reserving the power upon the opposite party to reject the claim if it does

not meet the specifications with further stipulation that the consumption

of the said rejected coal shall not be construed as utilization thereof for

the purpose of the payment, as it is not possible to store the coal in

separate identifiable lots till receipt of the test report. The expression

„test report‟ has to be understood and mean the report of the laboratory

under clause 3 of the said agreement which includes the right to ask for

referral sample to be tested in the Government Laboratory and the

report so submitted shall be final and binding on the parties. It,

therefore, does not prima facie appear that the rejection of the coal

solely on the basis of the testing report from the opposite party‟s

laboratory would be construed as a starting point of accrual of right to

seek relief. Though the rejection of coal was made and communicated

to the petitioner but in view of the clause 3 of the said agreement, the

petitioner asked for referral sample to be tested in the Government

laboratory. The e-mail dated 31st July, 2020 issued by the opposite party

is corroborative of the fact that the parties were contemplating to draw

samples in terms of the said clause as the testing report as relied upon

by the opposite party was not accepted by the petitioner. The petitioner

issued an e-mail dated 11th August, 2020 for drawing the referral sample

in presence of its representative on 13.08.2020 and on due compliance

thereof, the same was sent to the Government Laboratory at

Jamshedpur on 14.08.2020. It is a specific plea of the petitioner that

despite the referral sample having sent to the Government Laboratory,

the report was never communicated but subsequently the petitioner was

informed orally that the said report is available which led the demand

for payment of the outstanding amount through a lawyer on 12 th

November, 2020. The letter of demand dated 12th November, 2020 was

duly replied on 17.02.2021 by the opposite party refusing to accept the

report of the Government Laboratory. Immediately thereafter the

approach was made to the National Company Law Tribunal which was

dismissed and the appeal before the National Company Law Appellate

Tribunal (NCLAT) is pending. The notice under Section 21 of the Act

was issued on 22nd March, 2023 for agreeing on the appointment of a

sole arbitrator out of five suggested names which was duly rejected by

letter dated 03.04.2023 by the opposite party. It raises thus, a debatable

question whether the limitation would start from the date when the last

sample was drawn and the report was received by the opposite party

from the date when the opposite party rejected the lot on the basis of the

report submitted by its laboratory. It cannot therefore be said that the

claim is ex-facie barred. This Court thus does not find the instant

application deserves dismissal on the anvil of limitation. The

application is allowed. The parties are referred to arbitration to settle

their dispute.

23. Mr. Justice C.R. Dash, former Judge of this Court is hereby

appointed as the sole arbitrator. He is directed to complete the arbitral

proceedings within the time indicated in Section 29A of the said Act.

The remuneration of the Arbitrator shall be paid in accordance with

schedule appended to the said Act. The arbitration shall take place

under the aegis of the High Court of Orissa, Arbitration Centre.

24. The arbitration petition is disposed of accordingly. A copy of this

order be communicated to the learned Arbitrator forthwith.

( Harish Tandon ) Chief Justice

SK Jena/Secy.

Location: High Court of Orissa, Cuttack.