Gujarat High Court
Ascend Engineering Contractors vs Elecon Epc Projects Limited on 23 March, 2018
Author: M.R. Shah
Bench: M.R. Shah
C/IAAP/23/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/PETN. UNDER ARBITRATION ACT NO. 23 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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ASCEND ENGINEERING CONTRACTORS
Versus
ELECON EPC PROJECTS LIMITED
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Appearance:
MR ADITYA A GUPTA(7875) for the PETITIONER(s) No. 1
MR MOHIT A GUPTA(8967) for the PETITIONER(s) No. 1
MR AR GUPTA(1262) for the PETITIONER(s) No. 1
MR HARSHAD J SHAH(752) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 23/03/2018
ORAL JUDGMENT
[1.0] Present petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "Arbitration Act") has been preferred by the petitioner herein seeking appointment of an Arbitrator to resolve the dispute between the parties arising from the work order Nos.T310/CO:1874/NTPCDadri/FAB/15952 Page 1 of 22 C/IAAP/23/2016 JUDGMENT and T310/CO:1874/NTPCDadri/ERE/15952A.
[2.0] The facts leading to the present petition in nutshell are as under:
[2.1] Petitioner is a partnership firm and is engaged in the work of engineering construction. The respondent, a company registered under the Companies Act, had awarded contract to the petitioner under agreement dated 02.01.2008 for uploading, storage, intra site handling and structural steel fabrication for the Coal Handling Plant being constructed for the National Thermal Power Corporation at Ghaziabad, Uttar Pradesh. The agreement contained arbitration clause in following terms.
E. Arbitration:
All disputes and differences of any kind whatsoever arising, whether during the progress of the work or after its completion, shall be referred to CMD of Elecon, who shall endeavor to resolve the dispute amicably and render a decision. The decision of Elecon shall be final and binding upon the parties. If either party is dissatisfied with the decision rendered by Elecon, then the dispute be referred to arbitration in accordance with the Arbitration and Conciliation Act 1996 subject to jurisdiction of Anand, Gujarat.
[2.2] The agreement also contained clause of jurisdiction which states as under:
F. Jurisdiction:
The laws applicable to the contract shall be the laws in force in India. The Court in Anand, Gujarat state shall have exclusive jurisdiction in all matters arising under and on account shall be Anand.Page 2 of 22
C/IAAP/23/2016 JUDGMENT [2.3] On the same day, the respondentCompany also awarded another contract to the petitioner concerning the same project which envisaged that the petitioner could be carrying out the task of intrasite handling, fabricator structures, etc. providing all necessary tools, plant and machinery equipments, providing required manpower for execution and inspection which would include unskilled, semiskilled and skilled workers, erection of structures, equipments as per drawings, erection of conveyance equipments, etc. and other related works. This agreement also contained arbitration and jurisdiction clauses which were identically worded as in the other contract.
[2.4] The case of the petitioner is that during the course of execution of the work, the scope of work expanded considerably and as a result thereof, the petitioner ended up carrying out work far in excess of what was initially envisaged under the said agreements. The petitioner, therefore, requested respondent to revise the rates of payments and when the respondent refused to do so, activated the arbitration clause by issuing a notice dated 22.05.2015. In such notice, after giving background facts, the petitioner raised a claim of Rs.3.95 crores (rounded off) with interest and called upon the respondent to agree to one of the two arbitrators suggested by the petitioner within a 30 days from the date of receipt of notice.
[2.5] In reply to such notice, the respondent under communication dated 29.6.2015 denied any liability to pay excess remuneration to the petitioner. It was conveyed that the work was completed long Page 3 of 22 C/IAAP/23/2016 JUDGMENT back, entire amount of the work was already paid over. The respondent thus opposed any arbitration proceedings being initiated. At that stage, the petitioner filed the present petition.
[2.6] That by order dated 19.08.2016, this Court dismissed the present petition on the ground that the ssame is clearly barred by law of limitation. However, thereafter, the petitioner preferred Review Application in Misc. Application (OJ) No.102/2017 and requested to review and recall the order of dismissal of the present petition. Alongwith the application the petitioner filed additional affidavit and various documents alongwith such affidavit in support of his case that the claim is not barred by limitation. That by order dated 17.11.2017, the learned Single Judge allowed the said application and recalled the order dated 19.08.2016 rejecting the arbitration petition, however imposed the cost of Rs.25,000/. That is how the present petition is restored to file and placed before this Court.
[3.0] Shri Aditya Gupta, learned Advocate has appeared on behalf of the applicant and Shri Sunit Shah, learned Advocate has appeared with Shri Harshad J. Shah, learned Advocate appearing on behalf of the respondent.
[4.0] Shri Gupta, learned Advocate appearing on behalf of the petition has vehemently submitted that the present petition is opposed by the respondent solely on the ground of limitation and the claim being barred by law of limitation. It is submitted that it is true that the law before the amendment of Arbitration Act shall be Page 4 of 22 C/IAAP/23/2016 JUDGMENT applicable. However, still, as observed by the Hon'ble Supreme Court in the case of National Insurance Co. vs. Boghara Polyfab Ltd. reported in (2009) 1 SCC 267, it is optional for the Court to decide the limitation issue while deciding section 11 application. Relying upon the decision of the Hon'ble Supreme Court in the case of Indian Oil Corporation vs. SPS Engineering reported in (2011) 3 SCC 507 (Para 14), it is submitted by Shri Gupta, learned Advocate appearing on behalf of the petitioner that as observed by the Hon'ble Supreme Court in the said decision, if the contractor makes a claim for payment, beyond 3 years of completing of the work but say within 5 years of completion of work and alleges that the final bill was drawn up and payments were made within 3 years before the claim, the Court will not enter into a disputed question whether the claim is barred by limitation or not and the Court will leave the matter to the decision of the Tribunal. It is submitted that therefore the question of limitation would be a mixed question of law and facts and the same may not be considered and/or decided at this stage while deciding the application under Section 11 of the Arbitration Act.
[4.1] It is further submitted by Shri Gupta, learned Advocate appearing on behalf of the petitioner that even otherwise considering the claim made by the petitioner and the dispute, the claim for which arbitration clause is invoked cannot be said to be barred by law of limitation as alleged.
[4.2] It is further submitted by Shri Gupta, learned Advocate appearing on behalf of the petitioner that as per the work orders, Page 5 of 22 C/IAAP/23/2016 JUDGMENT the respondent was obliged to provide certain materials free of cost which is incorporated in the contracts. It is submitted that one of the unqualified names is for damages on account of delay and rise in costs in completion of final work due to nonsupply of various materials required for handing over the system. It is submitted that due to nonpayment or short payment against the actual work done including the extra work and further rise in price of various inputs involved in the work, due to nonsupply of various materials by the respondent resulting in delay, the petitioner has raised the aforesaid claim and has initiated the arbitration proceedings. It is submitted that therefore in the facts and circumstances of the case, the said claim cannot be said to be barred by law of limitation as alleged.
[4.3] It is further submitted by Shri Gupta, learned Advocate appearing on behalf of the petitioner that in the present case even the work done was going on well till the completion of performance guarantee test in September - October 2012. It is submitted that the petitioner has alleged the receipt of payments in 2013 also by producing its bank statement produced at Pages 180 to 186.
[4.4] It is further submitted by Shri Gupta, learned Advocate appearing on behalf of the petitioner that as per the petitioner, the limitation would start running when the notice dated 17.12.2014 was issued invoking arbitration clause (e), whereas the respondent has stated that the limitation would stop running on 22.05.2015 when the notice dated 22.05.2015 was issued. It is submitted that Page 6 of 22 C/IAAP/23/2016 JUDGMENT therefore there is a serious dispute with respect to when the period of limitation stop running. It is submitted that therefore the same is required to be left to be decided by the learned Tribunal. It is submitted that therefore the limitation would stop running from 17.12.2014.
[4.5] It is further submitted by Shri Gupta, learned Advocate appearing on behalf of the petitioner that as such and infact the respondent responded to the aforesaid stating that they will take up the matter with the concerned authority for review vide letter dated 22.01.2015. It is submitted that since the respondent failed to respond for 4 months, the petitioner sent another notice dated
22..05.2015 suggesting names of certain arbitrators. It is submitted that therefore relevant date of limitation would stop running from 17.12.2014 and 22.05.2015 as alleged.
[4.6] It is further submitted by Shri Gupta, learned Advocate appearing on behalf of the petitioner that as such arbitration clause is a composite clause which envisages dispute resolution by CMD of Elecon and if any party is dissatisfied with its decision then by an arbitrator under the Arbitration Act. It is submitted that in the present case the dispute resolution clause was invoked by addressing the letter dated 17.12.2014 to CMD, Elecon (Page 48) and further clause (e) was invoked.
[4.7] It is further submitted by Shri Gupta, learned Advocate appearing on behalf of the petitioner that as per Article 18 of the Limitation Act, in work contracts the limitation starts to run when Page 7 of 22 C/IAAP/23/2016 JUDGMENT the work is done and the period of limitation is 3 years. It is submitted that as evident from various email correspondences between the parties produced on record, it would show that the work was going on well upto September - October 2012. It is submitted that vide email dated 29.05.2012, the respondent requested the petitioner to carry out the load test for the electric hoist under the scope of work contract. It is submitted that carrying of load test is an integral part of scope of work. It is submitted that infact 5% of the payment of total value of the work was to be released after noload trial which was done in 2012 for which even the payments were made in the year 2013 as evident from the bank statement. It is submitted that therefore the say of the respondent that work was completed and accounts settled in December, 2009 is totally false.
[4.8] It is further submitted by Shri Gupta, learned Advocate appearing on behalf of the petitioner relying upon the bank statement (Pages 180 to 186) that the respondent has falsely stated that the entire payment was made in December, 2009. It is submitted that the bank statement shows credit entries of payment made in the year 2013. It is submitted that as such the respondent was admitted that all these payments were made by them but strangely they have stated that it is for another project. It is submitted that once admitted that the payments were made by them, the fact that whether it is for this project or other project, becomes a highly disputed question of fact. It is submitted that credit entries being Rs.1,71,509/ dated 07.06.2013, Rs.22,348/ dated 20.07.2013, Rs.1,10,866/ dated 10.09.2013, Rs.4,41,000/ Page 8 of 22 C/IAAP/23/2016 JUDGMENT dated 30.09.2013 and Rs.2,45,000/ dated 04.10.2013 relate to the present work order. It is further submitted by Shri Gupta, learned Advocate appearing on behalf of the petitioner that the NTPC issued a PG Test certificate dated 05.10.2012 and only after which the plant was handed over to the respondent. It is submitted that PG Test was integral part of the scope of work as per the contract and infact some portion of the payment being 2.5% of the total value of the work done was to be released after the PG Test was successfully done. It is submitted that the respondent has failed to produce PG Test certificate to show that the work was completed in 2009 to support its stand.
[4.9] It is further submitted by Shri Gupta, learned Advocate appearing on behalf of the petitioner that as such the respondent had itself issued a certificate dated 13.03.2013 which states that the work was completed in March 2012 (Page 187). It is further submitted that the respondent has falsely stated that Elecon EPC Projects came to be operative on 01.04.2013.
Making above submissions and relying upon the decisions of the Hon'ble Supreme Court in the case of SPS Engineering (Supra) and the decision of the Hon'ble Supreme Court in the case of A. Ayyaswamy vs. A. Paramasivam reported in (2016) 10 SCC 386 and Khardah Company vs. Raymon & Co. reported in AIR 1962 SC 1810, it is requested to allow the present petition and refer the dispute between the parties arising out of the aforesaid work contracts for arbitration.
[5.0] Present petition is vehemently opposed by Shri Sunit Shah, Page 9 of 22 C/IAAP/23/2016 JUDGMENT learned Advocate appearing on behalf of the respondent.
[5.1] It is submitted that earlier the designated Court was pleased to dismiss the arbitration petition on the ground of the claims being barred by limitation. It is submitted that as such the arbitration clause was invoked on 22.05.2015 and therefore, the facts of the case are governed by unamended provisions of the Arbitration Act. It is submitted that therefore it is open for the designated Court to decide whether or not the claims were time barred. It is submitted that the petitioner after dismissal of the arbitration petition, filed application for setting aside the order of dismissal and for reopening the case on the ground that the petitioners have come across certain documents which would show that the claim is within the period of limitation. It is submitted that therefore, the designated Court was pleased to set aside the earlier order dated 19.08.2016 and permitted the petitioner to produce additional documents without going into the merits whether such documents bring petitioner's claim within the period of limitation.
[5.2] It is submitted by Shri Shah, learned Advocate appearing on behalf of the respondent that additional documents now produced also would not bring the claims within the period of limitation and that the disputes / claims are not arbitrable.
[5.3] It is submitted by Shri Shah, learned Advocate appearing on behalf of the respondent that infact the petitioner has neither stated in their application nor pointed out in their submission as to which article of the Limitation Act shall be applicable. It is Page 10 of 22 C/IAAP/23/2016 JUDGMENT submitted that Article 18 of the Limitation Act deals with price for work done. It is submitted that claim is for price escalation and as such which would fall within Article 113 of the Limitation Act.
[5.4] It is submitted by Shri Shah, learned Advocate appearing on behalf of the respondent that the petitioner claims to have submitted final bid dated 08.10.2014 for fabrication and erection with a covering letter dated 08.10.2014 wherein it has claimed for 30% towards price escalation. It is submitted that the petitioner has produced another final bill for fabrication and erection dated 08.10.2014 (Page 223) with the same covering letter at page 222. It is submitted that therefore one of the bills is obviously forged as the dates are different and both the invoices are claimed to be zerox copies of the original.
[5.5] It is submitted by Shri Shah, learned Advocate appearing on behalf of the respondent that the arbitration clause was invoked on 22.05.2015 and therefore, if one checks the bill dated 08.10.2010, the claim is barred by limitation. It is submitted that if one checks the bill dated 08.10.2014, since the work was completed in the year 2009, as per the letter dated 09.12.2009 (Page 30), the letter dated 05.09.2011 (Page 34) undated letter of January 2010 (Page
35), undated letter at Page 36 and the letter dated 17.12.2014 (Page 50), the bill dated 08.10.2014 is raised after 5 years and therefore also, the above claim is barred by limitation.
[5.6] It is submitted by Shri Shah, learned Advocate appearing on behalf of the respondent that if Article 113 of the Limitation Act is Page 11 of 22 C/IAAP/23/2016 JUDGMENT applied, in that case, cause of action accrued when the work was was completed and that claim for price escalation was raised in the year 2009 as is evident from the letter dated 09.12.2009 (Page 30), emails dated 25.09.2011 (Page 34) and the email of January 2010 (Page 35) and the undated email at Page 36. It is submitted that as such the claim was price escalation is for the built up for fabrication work. It is submitted that the petitioner has admitted in affidavit dated December 2017 (Page 173) that the work was completed in the year 2009 was for built up section. It is submitted that therefore, admittedly, the work was completed as per the say of the petitioner as back as in the year 2009 and the claim was also raised as back as in the year 2009.
[5.7] It is submitted that thus taking either of the articles, the claim is barred by limitation. It is further submitted that none of the additional documents produced by the petitioner can be construed as constituting acknowledgment of part payment as contemplated as per sections 18 and 19 of the Limitation Act. It is submitted that therefore, the period of limitation which had begun to run in the year 2009 cannot be accepted.
[5.8] Now, so far as the additional documents relied upon by the petitioner is concerned, it is submitted by Shri Shah, learned Advocate appearing on behalf of the respondent that the petitioner has produced bank account statement at Pages 180 and 181. It is submitted that admittedly there is no controversy about the petitioner having been working for the respondent for other projects. It is submitted that the contract in question is with regard Page 12 of 22 C/IAAP/23/2016 JUDGMENT to Dadri Projects. It is submitted that burden of proof is upon the petitioner to show that the entries in the bank accounts relates to Dadri Projects. It is submitted that there are few entries of payments received by them are for the month of June, July, September and October 2013 and for benefit of sections 18 and 19 can be claimed if and only if above payments are shown to be in writing of the respondents. It is submitted that document is a bank statement of the petitioner not in handwriting of the respondent. It is submitted that moreover the work was completed in the year 2009. Entries are for the year 2013 i.e. after 3 years. It is submitted that requirement of sections 18 and 19 for extension of time is that it should be made within a period of 3 years after the period of limitation had begun to run. It is submitted that therefore the bank statement which has been relied upon is of no help. It is further submitted that even otherwise said payment do not relate to Dadri Project in question. It is submitted that first entry of Rs.1,71,509.00 is made in the context of (Page 139) in respect of invoice for Chandrapur Project as can be seen from Cheque No.458332 dated 03.06.2013. It is submitted that second entry for Rs.1000/ is self deposit and therefore, it does not pertain to the respondent. It is submitted that third entry for Rs.4,63,382.00 is read in the context of Pages 146 and 147 which is for Kawai Adani Project as can be seen from the endorsement on cheque No.460529 dated 24.06.2013 and also from the amount. It is submitted that fourth entry for Rs.2,26,981.00 bearing cheque No.461030 if compared with Page 142, it is for Chandrapur Project. It is submitted that another entry for Rs.3,15,131/ vide cheque No.5,02,050/, if compared with Page 161, it relates to Kawai Adani Project. It is Page 13 of 22 C/IAAP/23/2016 JUDGMENT submitted that above two entries are also not in respect of Dadri Project. It is submitted that it is for the petitioner to link and prove that the said payments received by the petitioner from the respondent was for Dadri Project. It is submitted that the petitioner has not been able to show that the same belongs to Dadri Project. It is submitted that second document which has been relied upon by the petitioner by way of additional document is a certificate dated 13.03.2013 purported to have been issued for tendering purpose as is evident from the contents of the same. It is submitted that it does not constitute acknowledgment as contemplated under Section 19 of the Act. It is submitted that the respondent claims said letter to have been forged. It is submitted that document Nos.3 and 4 are certificates issued by NTPC. Similarly, from the documents at Sr. Nos.5, 6 and 7, it cannot be said that the work was not completed in the year 2009.
[5.9] It is further submitted by Shri Shah, learned Advocate appearing on behalf of the respondent that even otherwise the claims also are nonarbitrable. It is submitted that the claim is for price escalation. It is submitted that contracts specifically provides for 'firm price'. It is submitted that arbitrator cannot travel beyond the terms of the contract and therefore, when terms of the contract do not permit price escalation, the claim is nonarbitrable for which the arbitrator is not required to be appointed. In support of his above submissions, Shri Shah, learned Advocate appearing on behalf of the respondent has heavily relied upon the decisions of the Hon'ble Supreme Court in the case of Satyanarayana Construction Co. vs. Union of India reported in (2011) 15 SCC Page 14 of 22 C/IAAP/23/2016 JUDGMENT 101 and in the case of KSS KSSIIPL Consortium vs. GAIL (India) Ltd. reported in (2015) 4 SCC 210. It is submitted that as observed by the Hon'ble Supreme Court in the aforesaid decisions, while appointing the Arbitrator, the designated Court cannot appoint the Arbitrator in respect of nonarbitrable claim. It is submitted that the claim for price escalation is regarded as nonarbitrable claim and therefore also, the arbitration petition is not maintainable and the same deserves to be dismissed.
[5.10] It is further submitted by Shri Shah, learned Advocate appearing on behalf of the respondent that even otherwise the respondent has also raised the contention with regard to forged and fabricated documents particularly invoice at Page 142 with Page 223 and certificate at Page 187. It is submitted that the contention of forgery is not for to appoint arbitration because the said documents are produced by the petitioner themselves. It is submitted that therefore considering the decision of the Hon'ble Supreme Court in the case of Ayyaswamy (Supra), present petition deserves to be dismissed.
Making above submissions and relying upon above decisions, it is requested to dismiss the present petition.
[6.0] Heard learned Advocates appearing for respective parties at length.
At the outset it is required to be noted and it is not disputed by the learned Advocates appearing for the respective parties that the present case shall be governed by pre Arbitration and Conciliation (Amendment) Act, 2015 and that the Arbitration and Page 15 of 22 C/IAAP/23/2016 JUDGMENT Conciliation (Amendment) Act, 2015 would not apply in the present case. Therefore, considering the position prevailing prior to the Arbitration and Conciliation (Amendment) Act, 2015, it would be open for the Court to consider before appointing the Arbitrator that whether the claim is time barred or not.
[6.1] It is required to be noted that earlier by a detailed judgment and order the designated Court vide order dated 19.08.2016 dismissed the present petition seeking appointment of an Arbitrator to resolve the dispute between the petitioner and the respondent arising out of two separate agreements both dated 02.01.2008 on the ground that the claims are clearly barred by limitation. However, subsequently, the petitioner submitted an application with some additional documents requesting to recall the order. Relying upon the additional documents produced alongwith the application for recall it was the case on behalf of the petitioner that the claim is not barred by law of limitation. Therefore, without further entering into the merits of the case on behalf of the applicant, relying upon the additional documents that the claim is barred by limitation or not, the learned Single Judge allowed the said application and recalled its earlier judgment and order dismissing the petition on the ground that the claim is barred by law of limitation keeping the issue / question as to what will be effect of such documents leaving it open to be judged after hearing both the sides in the main proceedings and permitted the petitioner to produce the additional documents. Therefore, as such what is required to be considered is whether on the basis of the additional documents produced subsequently, can the claim be said to be Page 16 of 22 C/IAAP/23/2016 JUDGMENT within the period of limitation?
[7.0] Having heard learned Counsel appearing on behalf of the respective parties and considering the rival submissions made by the learned Counsel appearing on behalf of the respective parties and even considering the additional documents produced subsequently, for the reasons and discussion as below, this Court is of the opinion that still the claim is barred by law of limitation.
[7.1] It is not in dispute and even as per the decisions of the Hon'ble Supreme Court in the case of SBP & Co. vs. Patel Engineering Ltd. reported in (2005) 8 SCC 618, in addition to ascertaining the jurisdiction of fact of the existence of the arbitration agreement between the parties, it is always open and optional for the Chief Justice or his designate to examine whether the claim made by the petitioner is hopelessly barred by limitation and which aspect can be ascertained from the face of the record. If it is possible to do so the Court may also refuse to appoint an Arbitrator. As observed hereinabove and as it is not in dispute that in the present case the position prevailing prior to the insertion of Section 11(6a) of the Arbitration Act shall be applicable and the preamendment Arbitration Act is required to be considered. Therefore, the decision of the Hon'ble Supreme Court in the case of SBP & Co. (Supra) shall be applicable.
[7.2] Now, considering the case on behalf of the petitioner and the submissions made by the learned Counsel appearing on behalf of the petitioner in support of his submission that the claim is within Page 17 of 22 C/IAAP/23/2016 JUDGMENT the period of limitation, it is the case on behalf of the petitioner that (1) the limitation would stop running on 17.12.2014 when the notice was issued invoking arbitration clause and not on 22.05.2015 when the notice dated 22.05.2015 was issued (as submitted on behalf of the respondent); (2) the work was going on upto September October 2012 and that the say of the respondent that the work was completed and accounts were settled in December 2009 is false; (3) some payments / partpayments were made in the year 2013 and were credited in the bank account of the petitioner. Elaborate submissions on behalf of the petitioner that in support of its case that the claim is within the period of limitation are recorded hereinabove. Therefore, considering the aforesaid facts and circumstances of the case, what is required to be considered is whether the claim is within the period of limitation or not and whether on the basis of the additional evidence now produced on record can it be said that still the claim is within the period of limitation for which the Arbitrator is required to be appointed?
[7.3] Having heard learned Counsel appearing on behalf of the respective parties on the aforesaid, it appears and it is not in dispute that the claim is for price escalation and therefore, such claim would fall within Article 113 of the Limitation Act. Assuming that since the invoices raised for price escalation by the petitioner claiming to be a final bill still even the said final bill is dated 08.10.2014 for fabrication and erection, with the covering letter dated 08.10.2014 wherein it has claimed for 30% towards price escalation. At this stage it is required to be noted that even the Page 18 of 22 C/IAAP/23/2016 JUDGMENT petitioner itself has produced final bill for fabrication and erection dated 08.10.2014 at page 223 with the same covering letter (Page
222). Therefore, the learned Advocate appearing on behalf of the respondent is justified in submitting that one of the bills is forged as the dates are different and both the invoices are claimed to be zerox copy of the original.
[7.4] It is required to be noted that arbitration has been invoked on 22.05.2015 and therefore, if the bill dated 08.10.2010 is considered, the claim can be said to be barred by limitation. Even if one takes the bill dated 08.10.2014, since the work was completed in the year 2009, as per the letter dated 09.12.2009 and other letters viz. letters dated 05.09.2011, 17.12.2014, bill dated 08.10.2014 can be said to be barred by limitation as the same is raised after a period of 5 years from the date of completion of the work which was in the year 2009. Therefore also, the claim is barred by limitation.
[7.5] Considering the material on record, it is established and proved that the work was completed in the year 2009. It is required to be noted that as observed hereinabove the claim is for price escalation for builtup of fabrication work. In the affidavit dated December 2017 (Page 173), the petitioner has stated that the work for builtup section was completed in the year 2009. Therefore, considering Article 113 of the Limitation Act, the claim seems to be barred by limitation.
[7.6] As observed hereinabove, as such the effect of additional Page 19 of 22 C/IAAP/23/2016 JUDGMENT documents produced are required to be considered. As observed hereinabove preproduction of additional documents, the learned Single Judge held the claim to be time barred and therefore, dismissed the petition. However, thereafter, additional documents were produced suggesting that on the basis of the additional documents the claim can be said to be within the period of limitation and thereafter the petitioner is permitted to produce the additional documents. Therefore, as such what is required to be considered now is whether on the basis of the additional documents produced, the petitioner is right in submitting that the claim is within the period of limitation. The petitioner has relied upon the bank account statement now produced at Page 180 and 181 and on the basis of the same, the petitioner has tried to built up a case that as some payment / partpayment was made by the respondent which was credited into the bank account of the petitioner and therefore, it can be said to be an acknowledgment or partpayment as per sections 18 and 19 of the Limitation Act. However, it is required to be noted and it is not in dispute that the contract in question is with regard to Dadri Project. It is not in dispute that the petitioner has also worked for other projects also. Therefore, when the petitioner is relying upon some of the entries and trying to make out a case that the payment was made subsequently by the respondent and it can be said to be an acknowledgment and/or part payment, the burden of proof shall be upon the petitioner to show that the entries in the bank account relates to Dadri Project. Nothing is on record that the payments received by the petitioner in the month of June, July, September and October 2013 are payments with respect to Dadri Project.
Page 20 of 22C/IAAP/23/2016 JUDGMENT Sections 18 and 19 of the Limitation Act as claimed can be applicable if and only if above payments are shown to be in handwriting of the respondents. The document is a bank account statement of the petitioner not in handwriting of the respondent. It is required to be noted that the work was completed in the year 2009 and the entries relied upon by the petitioner are for the year 2013 i.e. after 3 years. Considering sections 18 and 19 of the Limitation Act, for extension of time such acknowledgment / part payment should be made within a period of 3 years after the period of limitation began to run. Even otherwise as observed hereinabove the petitioner has miserably failed to prove and/or satisfy that the said payment relates to Dadri Project in question. On the contrary each and every entry are tried to be justified by the respondent as observed hereinabove and the respondent has been able to link and prove that the said payments / entries are with respect to other payments. Under the circumstances, even considering sections 18 and 19 of the Arbitration Act and considering the additional documents produced now, still it can be said that the claim is clearly barred by law of limitation.
[7.7] Considering the aforesaid facts and circumstances, when the claim is barred by law of limitation, it does not give rise to arbitrable dispute requiring reference to arbitration.
[8.0] In view of the above and for the reasons stated above, present petition seeking appointment of Arbitrator to resolve the dispute between the parties more particularly with respect to claim of price escalation of the work which was completed in the year 2009 Page 21 of 22 C/IAAP/23/2016 JUDGMENT deserves to be dismissed and is, accordingly, dismissed. In the facts and circumstances of the case, no order as to costs.
Sd/ (M.R. SHAH, J) Ajay** Page 22 of 22