Punjab-Haryana High Court
Rajinder Kumar Contractor vs State Of Haryana And Others on 23 January, 2024
Author: Suvir Sehgal
Bench: Suvir Sehgal
Neutral Citation No:=2024:PHHC:010498
ARB-160-2023 and other connected cases -1-
Neutral Citation No. 2024:PHHC:010498
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
111 ARB-160-2023
Date of Decision:23.01.2024
Rajinder Kumar Contractor
... Petitioner
Vs
State of Haryana and others
... Respondents
(2) ARB-161-2023
M/s Shree Jagdambaji Tubewells
... Petitioner
Vs
State of Haryana and others
... Respondents
(3) ARB-162-2023
M/s Shree Jagdambaji Tubewells
... Petitioner
Vs
State of Haryana and others
... Respondents
(4) ARB-163-2023
M/s Shree Jagdambaji Tubewells
... Petitioner
Vs
State of Haryana and others
... Respondents
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Neutral Citation No:=2024:PHHC:010498
ARB-160-2023 and other connected cases -2-
CORAM: HON'BLE MR. JUSTICE SUVIR SEHGAL
Present: Mr. Lajpat Rai Sharma, Advocate for the petitioner(s)
in all cases.
Mr. Aman Bahri, Addl. A.G. Haryana.
***
SUVIR SEHGAL, J. (ORAL)
This order will dispose of above four cases as they involve
common question of law.
2. For the sake of convenience, factual position is being taken
from Arbitration Case No.160 of 2023.
3. By way of application under Section 11(6) of the
Arbitration and Conciliation Act, 1996 (for short 'the Act'), petitioner
has approached this Court for appointment of an independent person
as a sole Arbitrator to adjudicate the dispute between the parties
arising out of the Contract Agreement for work of "Providing water
supply arrangement in Police Line Narnaul, construction of 1 No.
UGT of 25000 gallons, 1 No. Boosting Chamber of Size 10'X12' and
all other works contingent thereto" within an approximate cost of
Rs.3,56,000/-.
4. Counsel for the petitioner submits that the petitioner was
allotted the above noted work by allotment letter dated 09.01.2009,
Annexure P-1 and an agreement Annexure P-2 which contained the
conditions of the contract, was entered into between the parties. He
submits that the work was completed as per the specifications within
the stipulated period to the satisfaction of the Engineer-In-Charge.
Petitioner made various requests and representations for release of
final payment as well as earnest money, which is pending since
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Neutral Citation No:=2024:PHHC:010498
ARB-160-2023 and other connected cases -3-
10.03.2009. A representation dated 22.10.2021, Annexure P-2, was
submitted which was followed by legal notice dated 25.02.2023,
Annexure P-4, however, there was no response. By letter dated
23.03.2023, Annexure P-5, petitioner invoked arbitration clause but
the respondent did not respond to that as well.
5. Counsel for the petitioner has placed reliance upon the
judgment of the Supreme Court in M/s Mayavti Trading Pvt. Ltd.
Versus Pradyuat Deb Burman, 2019(5) R.C.R. (Civil) 823, to
contend that while referring a dispute to an Arbitrator, jurisdiction of
Court is confined to examination of existence of arbitration, and it
cannot go into the question of limitation as this aspect falls within the
purview of the Arbitrator.
6. Although, no response has been filed by the respondents but
the State counsel has argued that the claim is barred by time. He has
relied upon judgment dated 05.01.2024 passed by this Court in
Arbitration case No.2 of 2024 titled as Rattan Lal, Contractor,
deceased through Rajinder Kumar Vs. State of Haryana and others.
7. I have heard counsel for the parties and considered their
respective submissions.
8. After noticing the judgment in M/s Mayavti Trading Pvt.
Ltd.'s case (supra), Hon'ble the Supreme Court in Bharat Sanchar
Nigam Limited and another Versus Nortel Networks India Private
Limited, (2021) 5 Supreme Court Cases 738 has held as under:-
"While exercising jurisdiction under Section 11 as
the judicial forum, the court may exercise the
prima facie test to screen and knockdown ex facie
meritless, frivolous, and dishonest litigation.
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Neutral Citation No:=2024:PHHC:010498
ARB-160-2023 and other connected cases -4-
Limited jurisdiction of the courts would ensure
expeditious and efficient disposal at the referral
stage. At the referral stage, the Court can interfere
"only" when it is "manifest" that the claims are ex
facie time-barred and dead, or there is no
subsisting dispute."
9. It has been further observed by the Hon'ble Supreme Court
that in cases where there is not even a vestige of doubt that the claim
is ex facia time barred, or that the dispute is not arbitrable, the court
may decline to make the reference as that would ensure expeditious
and efficient disposal at the referral stage.
10. In M/s B & T AG Versus Ministry of Defence, 2023 AIR
(Supreme Court) 2731, Supreme Court has held that there is a fine
distinction between the plea that the claims raised are barred by
limitation and the plea that the application for appointment of an
arbitrator is barred by limitation. It has been held that the period of
limitation for commencement of an arbitration runs from the date on
which, had there been no arbitration clause, the cause of action would
have accrued.
11. Analysing the factual position in the light of the
observations of the Supreme Court, it is evident that the cause of
action accrued to the petitioner in the year 2009 and thereafter, he
went into a deep slumber and neither followed up the payment nor
took any step to get it adjudicated. After almost more than a decade,
petitioner started making representations and invoked the arbitration
clause in the year 2023. It is apparent that the cause had become
hopelessly barred by time. This court, therefore, has no hesitation in
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Neutral Citation No:=2024:PHHC:010498
ARB-160-2023 and other connected cases -5-
coming to the conclusion that as the claim of the petitioner is stale,
and dead, it does not deserve to be referred to an Arbitrator for
adjudication.
11. Finding no merit in the prayer made in the petitions, they
are hereby dismissed with no order as to costs.
23.01.2024 (SUVIR SEHGAL)
pooja saini JUDGE
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
Neutral Citation No:=2024:PHHC:010498
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