Madras High Court
Tecpro Systems Limited vs Bgr Energy Systems Limited
Arb.O.P.(Comm.Div.) No.643 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON PRONOUNCED ON
12.09.2024 23.10.2024
CORAM
THE HONOURABLE MR.JUSTICE K.KUMARESH BABU
Arb.O.P.(Comm.Div.) No.643 of 2022
Tecpro Systems Limited,
(Under Liquidation)
Through its Liquidator,
Unit 2, First Floor, No.25, 1st Main Road, Gandhi Nagar,
Adyar, Chennai, Tamil Nadu 600 020. … Petitioner
-vs-
BGR Energy Systems Limited,
No.443, Anna Salai,
Guna Complex, Teynampet,
V Floor, Chennai. … Respondent
(Amendment as per order dated 20.04.2023 in A.No.1003 of 2023)
PRAYER: Arbitration Original Petition filed under Section 11(6) of the
Arbitration and Conciliation Act, 1996 seeking for the following reliefs:-
a. Allow this Application and appoint a Sole
Arbitrator, in terms of the WO. No.GIX/PPD/082/22,
PO.No.350000085, PO. No. 3500000174, PO.No.
3500000406, PO. No. 3500000451, PO No. 330001059, SO.
No. 3300001294, PO No.3500000868, SO No.3300002018,
PO No. 3500001256, SO No.3300002824, SO
No.3300003031 to adjudicate the dispute between the parties
in relation to the disputes that has arisen; and
https://www.mhc.tn.gov.in/judis
b. To pass any such order (s) in favour of the petitioner
Page No.1/7
Arb.O.P.(Comm.Div.) No.643 of 2022
as may be deemed fit by this Hon'ble Court in the facts and
circumstances of the present case.
For Petitioner : Ms. Anisha Chandrakumar
for M/s.Anirudh Krishnan
For Respondent : Mr.C.P.Prasanth Gopal
ORDER
This Arbitration Original Petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter called as 'the Act') to appoint an Arbitrator to adjudicate upon disputes/differences between the Petitioner and the Respondent.
2. Heard Ms. Anisha Chandrakumar, learned counsel for M/s.Anirudh Krishnan, leanred counsel for the petitioner and Mr.C.P.Prasanth Gopal, learned counsel appearing on behalf of the respondent.
3. Ms. Anisha Chandrakumar, learned counsel for the petitioner would submit that the petitioner went into liquidation and during the process it was founded by the liquidator that the respondent is in due to the petitioner Company and the Purchase Order indicated that there was a Clause for arbitration and therefore, a notice under Section 21 of the Act was issued but no response and therefore, the present petition had been filed seeking to appoint an Arbitrator and hence, he would request this Court to appoint an Abitrator to resolve the issue between the parties. https://www.mhc.tn.gov.in/judis Page No.2/7 Arb.O.P.(Comm.Div.) No.643 of 2022
4.Contending the claim of the petitioner, Mr.C.P.Prasanth Gopal, learned counsel appearing on behalf of the respondent, at the outset would submit that the claim that is sought to be made is a time barred claim, even before the Company went into the process of liquidation and after, the order of winding up, post claims have all been barred by the period of limitation and therefore, such delayed claims cannot be sought to be revived by the petitioner Company. Even assuming that the respondent claims are within the stipulated period of limitation, he would submit that the purchase orders upon which the disputes is sought to be claimed are all not relating to the respondent and certain of the purchase orders related to the third party Company for which dispute between the parties cannot be referred to. He would submit that the petitioner had not come with a clean hands and referring to certain purchase orders where there is no arbitration Clause and certain Purchase Orders which are not in the name of the respondent, he would seek dismissal of the Original Petition.
5. I have heard arguments of either side and perused the material available on record.
6. Objections to refer the matter for arbitration had been raised on the ground of limitation. According to the respondent, these Purchase Orders were all of the year 2007–09 for which the petitioner is trying to raise a https://www.mhc.tn.gov.in/judis Page No.3/7 Arb.O.P.(Comm.Div.) No.643 of 2022 reference of dispute. The petitioner had placed on record a communication dated 03.10.2015 issued by the respondent which had referred to the same Purchase Orders. The said communication also indicates that the respondent had annexed certain of the bank guarantees given by the petitioner and had admitted to pay the petitioner Company amounts as and when the same it is received from the customers who had been supplied by the petitioner through respondent.
7.It is also to be noted that the petitioner Company went into the process of insolvency under the IBC Code and an IRP had been appointed by the NCLT, New Delhi in CA.No.(IB) 197 (PB)/2017 dated 07.08.2017. The said order came to a final rest by the orders of the Hon'ble Apex Court dated 01.03.2021. The acknowledgment of liability by the petitioner in respect of certain Purchase Orders came to be issued on 31.10.2015. Even taking into account that the limitation period begins form that date, the period of three years from 30.10.2015 will come to an end on 02.10.2018. On 07.08.2017, an order of appointment of IRP had came to be passed under the IBC Code which attained its finality on 01.03.2021 by orders of the Hon'ble Apex Court. Therefore, the period starting from 07.08.2017 to 01.03.2021 would have to be excluded from the said period of limitation. The period starting from 03.10.2015 to 07.08.2017 would be a period of 22 months and the https://www.mhc.tn.gov.in/judis Page No.4/7 Arb.O.P.(Comm.Div.) No.643 of 2022 remaining period of 14 months would start from 01.03.2021 that is the date when the Hon'ble Apex Court had passed the order. The petitioner had issued an arbitration notice invoking the provision of Section 21 of the Act on 02.04.2022 that is well within the remaining period of 14 months and had approached this Court after a period of expiry of 30 days. Hence, the claim of the limitation as raised by the learned counsel for the respondent in my view cannot hold good. However, the respondent is at liberty to raise the issue with regard to the claims which do not relates to the respondent and I am also of the view that the applicant can make claims of Purchase Orders which relates only to the respondent and not otherwise. However, the parties are at liberty to raise all their contentions as regards to their liability before the learned Arbitrator.
8. In such view of the matter, this Court is inclined to appoint Mr.R.A.Karimullah, Advocate, No.338, 2nd Floor, New Additional Law Chambers, High Court Buildings, Chennai- 600 104, Mobile No.98943 56643, as a Sole Arbitrator to enter upon the dispute between the petitioner and the respondent.
9. The learned Sole Arbitrator is entitled to fix his fees as per the Schedule-IV to the Act. This Court further requests the learned Sole Arbitrator to endeavour to decide the dispute as expeditiously as possible. https://www.mhc.tn.gov.in/judis Page No.5/7 Arb.O.P.(Comm.Div.) No.643 of 2022
10.In fine, this Arbitration Orginal Petition is ordered as prayed for.
23.10.2024 Index :Yes/No Speaking Order/Non Speaking Order Gba K.KUMARESH BABU, J.
Gba Arb.O.P. (Com.Div.) No.643 of 2022 https://www.mhc.tn.gov.in/judis Page No.6/7 Arb.O.P.(Comm.Div.) No.643 of 2022 23.10.2024 https://www.mhc.tn.gov.in/judis Page No.7/7