Gauhati High Court
Gammon Engineers And Contractors Pvt. ... vs The Border Roads Organisation (Bro) on 16 November, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/3
GAHC010103492021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Arb.P./26/2021
GAMMON ENGINEERS AND CONTRACTORS PVT. LTD
GAMMON HOUSE, VEER SAVARKAR MARG, P.O. BOX. N. 9129,
PRABHADEVI, MUMBAI-400025, REPRESENTED BY MANAGER, SRI
MANOJ RATHOD, AGED ABOUT 46 YEARS
VERSUS
THE BORDER ROADS ORGANISATION (BRO)
C/O 99 APO, PASIGHAT, DIST-EAST SIANG, ARUNACHAL PRADESH-791102,
REPRESENTED BY THE CHIEF ENGINEER, PROJECT VARTAK
Advocate for the Petitioner : MR D DEKA
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
ORDER
Date : 16-11-2022 Heard Mr. N. Deka, learned counsel for the petitioner. Also heard Mr. S. Barthakur, learned counsel appearing on behalf of Mr. S.S. Roy, learned Central Government Counsel for the respondent.
2. The present petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator.
3. When this matter was taken up, it has been submitted by Mr. Barthakur, learned counsel for the respondent that the present petition is hopelessly time barred for the purpose Page No.# 2/3 of appointment of an Arbitrator inasmuch as though the dispute relating to non-payment of final bill was raised by the petitioner on 04.09.2010, he sought to invoke the Arbitration Clause only on 11.08.2014 and further he approached this Court only in 2021.
4. It has been submitted by Mr. Barthukar that the petitioner raised the claim on 04.09.2010 which was, however, rejected by the authorities on 06.05.2014. Thereafter, the petitioner invoked the Arbitration Clause on 11.08.2014 by writing to the respondents. However, the petitioner did not approach this Court thereafter for appointment of Arbitrator by invoking Section 11 of the Arbitration and Conciliation Act, 1996 in spite of non-action by the respondents on the request of the petitioner and this petition was filed only on 09.07.2021.
5. Mr. Deka, learned counsel for the petitioner submits that initially the petitioner approached the Delhi High Court for appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1966, which however was dismissed by the Delhi High Court on 27.10.2017.
6. It has been submitted by Mr. Barthakur, learned counsel for the respondent that though the petitioner ought to have immediately approached this Court after being refused by the Delhi High Court however, they approached this Court by filing this petition only on 09.07.2021 after a delay of about 4 (four) years and as such, it is hopelessly time barred and the Hon'ble Supreme Court also has clearly held in Bharat Sanchar Nigam Ltd. & Anr. Vs. M/s Nortel Networks India Pvt. Ltd., (2021) 5 SCC 738 that any application for appointment of arbitrator which is clearly time barred ought not be entertained.
7. This Court is of the view that since the petitioner has approached this Court very belatedly, it is clearly time barred as far as application for appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1966 is concerned. Accordingly, this Court is not inclined to entertain this petition.
8. Mr. Deka, learned counsel for the petitioner, however, submits that even though there may be delay in approaching this Court for appointment of an arbitrator in invoking Section 11 of the Arbitration and Conciliation Act, 1996, the cause of action still survives as far as the claim of the petitioner is concerned and as such, dismissal of the application for appointment Page No.# 3/3 of an Arbitration under Section 11 of the Arbitration and Conciliation Act may not come in the way of the petitioner in pursuing other forum available under the law for redressal of his grievances and if necessary the petitioner may approach the competent forum available under the law and file necessary application for condonation of delay by invoking Section 14 of the Limitation Act.
9. As far as the aforesaid submission of the learned counsel for the petitioner is concerned, it is for the petitioner to invoke any other alternative forum if available under the law. It is also for him to make such application under Section 14 of the Limitation Act, 1963, for condonation of delay if permissible under the law.
10. Mr. Barthakur, learned counsel for the respondent also submits that the claim of the petitioner is also time barred.
However, this Court is not inclined to entertain into this issue, as it is for the appropriate competent forum to decide.
11. With the above observations and directions, the present petition stands disposed of.
JUDGE Comparing Assistant