Delhi High Court - Orders
Trans Image Corporation vs National Technical Research ... on 25 January, 2023
Author: Sachin Datta
Bench: Sachin Datta
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 1310/2022
TRANS IMAGE CORPORATION ..... Petitioner
Through: Mr. Adhirath Singh, Mr. Raymon
Singh and Mr. Amir Husain,
Advocates.
versus
NATIONAL TECHNICAL RESEARCH ORGANISATION & ANR.
..... Respondents
Through: Mr. Ravi Prakash, CGSC with
Mr.Varun Agarwal, Advocate and
Mr. Siddharth Gupta, GP.
Mr. Ashish Kumar Gupta, Additional
Deputy Director NTRO.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
ORDER
% 25.01.2023
1. The present petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeking appointment of a Sole Arbitrator to adjudicate the disputes between the parties which have arisen pursuant to a contract dated 07.06.2016, bearing no. VIII/71/74/S.O./01/2016 between the petitioner and the respondents. The said contract contains an arbitration clause in the following terms:-
"7. Arbitration: In the event of any dispute or differences between the parties hereto, such dispute or differences shall be resolved amicably by mutual consultation. If any dispute could not be settled amicably within 30 days after receipt by one party of the other party's request for such amicable settlement, the dispute may be submitted by either party for settlement in accordance with the provision of Arbitration and Conciliation Act 1996 and the Rules there under and Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:01.02.2023 12:45:40 referred the matter ICADR for Arbitration, instead of going to the court directly and for the purpose they may contact the Secretary General, International Centre for Alternative Dispute Resolution (ICADR), Plot No. 6, Vasant Kunj, Institutional Area, Phase II , New Delhi-110070 for Arbitration . The proceedings shall be held in New Delhi and the language of the Arbitration proceedings shall be in English . The decision of the Arbitrator shall be final and binding on the parties of this Contract. Each party shall bear its own cost of preparing and presenting its case. The parties shall continue to perform their respective obligations under this Contract during the pendency of arbitration proceedings except in so far as such obligations are the subject matter of said arbitration proceedings."
2. As is evident from the aforesaid stipulation, the said clause contemplates that the arbitration proceedings shall be held in New Delhi. The contract between the parties was also entered into in New Delhi.
3. It is agreed by respective counsel for the parties that the seat of arbitration is New Delhi, and consequently, this Court has jurisdiction to entertain the present petition. It is further submitted by learned counsel for the parties that the arbitration institute referred to in the aforesaid arbitration clause, i.e., International Centre for Alternative Dispute Resolution (ICADR) has been dissolved.
4. Learned counsel for the respondents raises a preliminary objection as regards the maintainability of the present petition on the ground that the claim/s in question sought to be raised by the petitioner have become time barred. The same is refuted by learned counsel for the petitioner who submits that the invocation of the arbitration was within the period of limitation, taking into account the date on which the last payment was released to the petitioner i.e., 21.09.2022.
5. In the facts of the present case, the question as to whether the claims Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:01.02.2023 12:45:40 are barred by limitation or not can be considered by the Arbitrator; and the respondents would be at liberty to file an appropriate application before the Arbitrator raising objections as to both jurisdiction and maintainability.
6. In Bharat Sanchar Nigam Limited v. Nortel Networks India Pvt. Ltd., (2021) 5 SCC 738, it was held by the Supreme Court as under:-
"47. It is only in the very limited category of cases, where there is not even a vestige of doubt that the claim is ex facie time-barred, or that the dispute is non- arbitrable, that the court may decline to make the reference. However, if there is even the slightest doubt, the rule is to refer the disputes to arbitration, otherwise it would encroach upon what is essentially a matter to be determined by the tribunal.
XXX XXX XXX
53. Accordingly, we hold that:
...
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."
7. After some hearing, learned counsel for the respondents submits that an independent sole Arbitrator be appointed to adjudicate the disputes between the parties, subject to the aforesaid objections of the respondents being considered and decided by the said Arbitrator.
8. Accordingly, Mr. Viksit Arora, Advocate (Mobile No. 9911440400) is appointed as an Arbitrator to adjudicate the disputes between the parties.
9. It is further directed that the Arbitrator shall duly consider and decide the objections of the respondents as regards limitation and/or lack of jurisdiction to entertain the claims sought to be raised by the petitioner.
10. At the request of learned counsel for the parties, it is directed that arbitration shall be conducted as per the rules of and under the aegis of the Delhi International Arbitration Centre.
11. All rights and contentions of the parties in relation to the Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:01.02.2023 12:45:40 claims/counter-claims are kept open, to be decided by the learned Arbitrator on their merits, in accordance with law.
12. The petition stands disposed of in the above terms.
13. A copy of this order be sent to the learned Arbitrator.
SACHIN DATTA, J JANUARY 25, 2023/AK Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:01.02.2023 12:45:40