Bombay High Court
Oil And Natural Gas Corporation Limited vs Reliance Energy Limited on 9 January, 2013
Equivalent citations: AIRONLINE 2013 BOM 4
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO. 905 OF 2010
Oil and Natural Gas Corporation Limited,
a Public Limited Company registered under
the Companies Act, 1956, having its
registered office at 8th Floor,
Jeevan Bharati, Tower-II,
124, Indira Chowk, Connaught Place,
New Delhi-110001 and having its branch
office at 1st Floor, N.S.E. Building,
Bandra-Kurla Complex, Bandra (East),
Mumbai-400 051. .....Petitioner.
(Orig. Claimant)
V/s.
Reliance Energy Limited,
a Company incorporated under the
Companies Act, 1956, and having
its office at Reliance Energy Centre,
Santacruz (East),
Mumbai-400 055. ....Respondent.
(Orig. Respondent.)
Mr. S.U. Kamdar, Senior Advocate a/w Mr. Naushad Engineer,
with Ms. Pooja Patil, Mr. J.P. Kapadia i/by M/s. Little & Co. for
the Petitioner.
Mr. J.J. Bhatt, Senior Advocate a/w Ms. Anjali Chandurkar, D.K.
Kaklia, Mr. Dhishan Kukreja, Ms. Kalyani Chandurkar i/by M/s.
Mulla and Mulla for the Respondent.
CORAM : ANOOP V. MOHTA, J.
JUDGMENT RESERVED ON : 21 DECEMBER 2012.
JUDGMENT PRONOUNCED ON : 09 JANUARY 2013.
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JUDGMENT :-
The Petitioner- original Claimant has challenged award dated 12 November 2009 passed by the Arbitral Tribunal constituted pursuant to the Memorandum of Understanding (for short, "MOU") dated 7 October 1999, under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, "the Arbitration Act"), as there is a rejection of claimant's claim on the ground of limitation.
2 The conclusion of the learned Arbitral Tribunal is as under:-
"19. In view of the Arbitral Tribunal holding that the Claimant's claim is barred by law of limitation, the Claimant is not entitled to any relief against the Respondent in the present arbitral reference. The claimant's claim against the Respondent even on the basis of principle of quantum meruit is also barred by law of limitation since admittedly the expenditure incurred by the Claimant on pre-project activities were incurred prior to ::: Downloaded on - 09/06/2013 19:33:08 ::: ssm 3 arbp905.10 18th April 2001.
20. The points for determination are answered accordingly."
3 The basic case as per the award is as under:-
"The Claimant is a body corporate registered under the Companies Act, 1956 and has its registered office at 8 th Floor, Jeevan Bharati, Tower-II, 124, Indira Chowk, Connaught Place, New Delhi-110 001 and a branch office at Mumbai. The Claimant is engaged inter-alia in the business of exploration and production of oil and natural gas. The Respondent is a company registered under the Companies Act, 1956 and has its office at Reliance Energy Centre, Santacruz (E), Mumbai 400
055. The Respondent is engaged inter-alia in the business of generation, transmission, distribution and trading of power.
In this arbitral reference, the Claimant has claimed the sum of Rs.4.3043 Crores along with interest thereon at the rate of 18% per annum from 26 December 2001. According to the Claimant, the said amount was the expenditure incurred by the Claimant under the MOU dated 7 October 1999 entered by and ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 4 arbp905.10 between the Claimant and the Respondent fro carrying out the Survey Work and the other investigation works for construction of the dedicated pipeline which was to be laid through ocean route from the Claimant's capped wells to the proposed power plant of the Respondent and the implementation plan of the project. The Respondent has denied its liability to pay the amount claimed by the Claimant in the arbitral reference.
Accordingly to the Claimant, under Clause 13.1 of the MOU, it is set out that since the Claimant is developing structures exclusively for the production and supply of gas and condensates to the Respondent, the Respondent is liable to repay the Claimant the amount of expenditure incurred prior to termination of the MOU and as the Respondent has refused to pay the said amount of expenditure, the Claimant has invoked the arbitration to recover the same."
4 The basic clauses of the MOU are as under:-
"11.00 GOVERNING LAWS & RESOLUTION OF DISPUTES This agreement shall be governed by and interpreted in accordance with the laws of India ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 5 arbp905.10 including without limitation of relevant central, State Acts and the rules regulations and notifications issued hereunder.
Any dispute under this agreement shall be resolved mutually by the parties, failing which the matter shall be referred for arbitration, which shall be conducted in accordance with Arbitration and Conciliation Act, 1996. The venue of such arbitration shall be Mumbai, India."
13.0 TERMINATION 13.1 Since SELLER would be developing C-22/C-24 structures exclusively for production and supply of gas and associated condensate to BSES, the sole BUYER, the BUYER agrees to compensate SELLER all expenditures already incurred on this project before termination of this MOU.
13.2 Both parties hereby agree that the validity of this MOU is subject to the approval of the same by the respective Boards of the SELLER and BUYER and also subject to receiving the final clearance from ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 6 arbp905.10 Government of Maharashtra by the BUYER for their plant. However, any termination under this clause would be without prejudice to the rights and obligations of the parties accrued under clause 13.1 above before such termination."
5Both the learned senior counsel appearing for the parties made their respective submissions, mainly revolving around the issue of limitation. There is no serious challenge so far as the observations made with regard to the merits-claims as recorded by the learned Arbitral Tribunal.
6 In the present case, while appointing the Arbitrator, this Court had kept the question open, including availability of Arbitration clause and the limitation point, to be raised by the parties before the learned Arbitral Tribunal. The issues were accordingly raised, framed and proceeded.
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7 The relevant averments at para 12 of the claim Petition is
as under:-
"12. The claimant states that no part of its claim is barred by the Law of Limitation. The contract/ MOU was terminated on 20th of December 2002 and the Claimant addressed a letter dated 17th of June, 2005 stating that it would be invoking the arbitration clause. In any event, even the letters dated 8th July, 2005 and 15th July, 2005 invoke the arbitration clause. That being so, the claims are within the period of limitation."
and thereby prayed that, "(a) That the Respondent be ordered to pay to the Claimant Rs.4.3043 crores, being the amount incurred by the Claimant on the project activities for supplying Gas and Associated condensate to the Respondent, with interest thereon at the rate of 18% ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 8 arbp905.10 per annum from 26th December 2001, till payment and/or realisation thereof."
8 The Petitioner, based upon the MOU undertook some of the pre-project activities like detailed engineering, pipeline route survey etc. and incurred expenditure to the extent of Rs.4.4 crores till 18 April 2001. The MOU stood terminated.
Therefore, in view of the MOU clauses, the claimant led oral evidence to support documentary evidence towards the expenditure so incurred. The Arbitral Tribunal has recorded those details in para 14 and observed as under:-
"Even the rest of the expenditure though proved by the Claimant as having been incurred on the project within meaning of Clause 13.1 of the MOU prior to termination of the MOU, the Claimant is not entitled to recover from the Respondent as the Claimant's claim, as stated hereunder, is barred by law of limitation."
9 Admittedly, by letter dated 26 December 2001, the Petitioner raised the claim of Rs.4.4 Crores by terminating the ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 9 arbp905.10 MOU itself. However, subsequently in view of the alleged negotiations between the parties as there were discussion going on, the case was made that the MOU never stood terminated on 26 December 2001 but only on 20 December 2002.
10 The Petitioner, thereafter invoked Arbitration by letter dated 25 June 2005 and contended that the claim so raised was within limitation as cause of action arose only on 20 December 2002 and not on 26 December 2001. Therefore, in view of Section 21 of the Arbitration Act, the limitation stopped running from 25 June 2005 and therefore, the claim so filed in 2006 is within limitation. The learned Arbitral Tribunal has therefore, dealt with these two letters, its contents and the surrounding evidence.
11 The relevant paragraphs of letter dated 26 December 2001 are as under:-
"In view of lack of response from BSES, it can be presumed that BSES is not in a position to commit itself to utilize the available gas. I may also like to mention that ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 10 arbp905.10 allocation of gas from C-22/24 structures in favour of BSES by GLC cannot be open ended and Govt. guidelines in this respect are very clear. Under the circumstances, the option left is to terminate the MOU between BSES and ONGC date 7th October 1999 for which BSES has to reimburse ONGC an amount of Rs.4.4 Crores spent on pre-project activities with specific consent of BSES.
Accordingly, I would request BSES to immediately reimburse the expenditure already incurred by ONGC on the project in line with the provisions of MOU. If BSES subsequently decides to receive gas for their power plant, the same would need to be re-negotiated subject to availability at that time."
12 The important paragraph of Petitioner's letter dated 20 December 2002 is as under:-
"In view of above, we are advising the Ministry of Petroleum and Natural Gas to cancel the said allocation of gas. The expenses already incurred by ONGC on the project with the consent of BSES, as informed vide letter dated ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 11 arbp905.10 26.12.2001, may be reimbursed to ONGC as per clause 13.1 of the MOU and MOU dated 07.10.1999 deemed terminated."
13 The learned senior counsel appearing for the Petitioner has read and referred the last portion of paragraph 16 which is as under:-
"It is a reminder by the Claimant to the Respondent for reimbursement of the expenditure incurred as stated in the Claimant's said letter dated 26.12.2001 as per Clause 13.1 of the MOU and it further records deemed termination of the said MOU. The 'deemed termination' refers to the termination of the MOU by the Claimant vide its said letter dated 26.12.2001. The letter of 20th December 2002 relied upon by the Claimant to save limitation is not the letter terminating the MOU, but it confirms earlier termination of the MOU by the Claimant, that is, termination vide the said letter dated 26th December 2001 and reiterates the demand already made by the Claimant on the Respondent vide the said letter dated 26th December 2001. The termination of the MOU had taken ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 12 arbp905.10 place by the said letter dated 26 th December 2001. Thereafter, nothing happened pursuant to the MOU except re-negotiation of the entire issue."
14 The relevant findings with regard to the prayer of the Petitioner in the statement of claim is as under:-
"17. In the view which we are taking that the termination of the MOU has taken place by the said letter dated 26th December, 2001 addressed by the Claimant to the Respondent, we are fortified by prayer (a) made by the Claimant in the Statement of Claim filed where the Claimant has demanded interest on the said sum of Rs.4.3043 Crores at the rate of 18% per annum from 26.12.2001. The demand for interest on the amount alleged to have been incurred by the Claimant towards expenditure as from 26.12.2001 could have been made and has been made only in view of the fact that the MOU was terminated by the Claimant on 26th December, 2001. This shows that the Claimant as well as the Respondent have understood the date of termination of the MOU as 26.12.2001 and not ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 13 arbp905.10 20.12.2002 as now contended by the Claimant."
15 The learned senior counsel appearing for the Petitioner has made strong reliance on the various Supreme Court Judgments revolving around the limitation issue.
(a) "A liberal construction on documents to save, not to scuffle, when faced with a plea of limitation to non-suit and otherwise good claim"
(Roshanlal Kuthalia & Ors. Vs. R.B. Mohan Singh Oberoi) 1 .
This is settled proposition and needs no further discussion. The purpose of Sections 14 and 19 of the Limitation Act is also clear, provided the earlier proceedings, based upon which claim is made, need to be prosecuted in good faith.
There is no such case here. The private negotiations cannot be equated with the pendency of proceedings prosecuted in good 1 (1975) 4 SCC 628 ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 14 arbp905.10 faith.
(b) "There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted."33.
The legal position may be briefly stated thus: The right to sue under Art. 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit.
Every threat by a party to such a right however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."
::: Downloaded on - 09/06/2013 19:33:09 :::ssm 15 arbp905.10 (Mst. Rukhmabai Vs. Lala Laxminarayan and Ors.) 2
(c) "25 .....As long as parties are in dialogue and even the differences would have surfaced it cannot be asserted that a limitation under Article 137 has commenced. Such an interpretation will compel the parties to resort to litigation/arbitration even where there is serious hope of the parties themselves resolving the issues. .........As already noticed, the correspondence between the parties, in fact, bears out that every attempt was being made to comply with and carry out the reciprocal obligations spelt out in the agreement between the parties."
"29. .....The limitation period starts running from the time the right to apply accrue."
"32. In Major (Retd. Inder Singh Rekhi Vs. Delhi Development Authority, (1988) 2 SCC 2 AIR 1960 SC 335 ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 16 arbp905.10 338 at 340, this Court holding that the application under section 20 was filed within time examined that:
"...........a party cannot postpone the accrual of cause of action by writing reminders or sending reminders but where the bill had not been finally prepared, the claim made by the claimant is the accrual of cause of action. A dispute arises where there is a claim and a denial and repudiation of the claim.........There should be a dispute and there can only be a dispute when a claim is asserted by one party and denied by the other on whatever grounds. Mere failure or inaction to pay does not lead to the inference of the existence of dispute. Dispute entails a positive element and assertion of denying, not merely inaction to accede to a claim or request. Whether in a particular case dispute has arisen or not has to be found out from the facts and circumstances of the case."
(Hari Shankar Singhania & Ors. Vs. Gaur ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 17 arbp905.10 Hari Singhania & Ors.) 3 The learned Arbitral Tribunal has referred and dealt with this Judgment.
(d) There was no question of deciding the issue of limitation as the matter was referred to the learned Arbitral Tribunal by the Court for adjudicating the same on all aspects.
"30 .......These observations would clearly suggest that where the negotiations were still on, there would be no question of starting of the limitation period."
(Shree Ram Mills Ltd. Vs. Utility Premises (P) Ltd.) 4 In this case, the question of limitation was left open for the Tribunal to decide.
e) The award so passed is contrary to law and the record as basically the learned Tribunal, as 3 AIR 2006 SC 2488 4 (2007) 4 SCC 599 ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 18 arbp905.10 contended, failed to take note of negotiations between the parties and the correspondences so exchanged regarding the same and therefore this amounts to misconduct as contemplated under the Arbitration Act.
(Seth Mohanlal Hiralal Vs. State of M.P.) 5 (Union of India Vs. Jain Associates and Anr.) 6 The relevant documents if not considered by the Arbitrator, it amounts to misconduct as per the Arbitration Act.
(K.P. Poulose Vs. State of Kerala & Anr.) 7 16 The learned senior counsel appearing for the Respondent has relied on Steel Authority of India Limited Vs. J.C. Budharaja, Government and Mining Contractor 8 and thereby contended that the facts and circumstances of each case required to be considered and to decide that the claim is barred by limitation or not. The award so passed, based upon the 5 (2003) 12 SCC 144 6 (1994) 4 SCC 665 7 (1975) 2 SCC 236 8 1993(3) Arb. LR 335 (S.C.) ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 19 arbp905.10 material available on record, is within the framework of law and the record. There is no perversity and/or any misconduct as alleged.
In this case the Apex Court has considered Article 137 of the Limitation Act.
"25. For deciding this controversy, we would first refer to the decision of this Court in State of Orissa and anothers Vs. Damodar Das, JT 1995(9) SC 419= 1996(1) Arb. LR. 221 (SC), wherein this Court held that Section 3 of the Limitation Act, 1963, enjoys the Court to consider the question of limitation whether it is pleaded or not. The Court in paragraph 5 held as under:-
"Russell on Arbitration by Anthony Walton (19th Edn.) at pp.4-5 states that the period of limitation for commencing an arbitration runs from the date on which the "cause of arbitration" accrued, that is to say, from the date when the claimant first acquired either a right of action or a right to require than an arbitration take place upon the dispute concerned. The period of limitation for the commencement of an arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued:
Just as in the case of actions the claim is not to be brother after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not to be put forward after the expiration of the specified number of years from the date when the claim accrued.::: Downloaded on - 09/06/2013 19:33:09 :::
ssm 20 arbp905.10 Even if the arbitration clause contains a provision that no cause of action shall accrue in respect of any matter agreed to be referred to until an award is made, time still runs from the normal date when the cause of action would have accrued if there has been arbitration clause."
"27. Applying the aforesaid ratio in the present case, right to refer the dispute to the Arbitrator arose in 1979 when Contractor gave a notice demanding the amount and there was no response from the appellant and the amount was not paid.
The cause of action for recovery of the said amount arose from the date of the notice. Contractor cannot wait indefinitely and is required to take action within the period of limitation."
17 The learned Senior counsel appearing for the Respondent also relied on the judgment of (Vishindas Bhagchand Vs. Chairman, Maharashtra State Electricity Board, Mumbai & Ors.)9. The relevant portion reads as under:-
"12. Period of limitation is subject to provisions of extension in case of disability, and the postponement in case of acknowledgment or part payment of fraud or mistake. Otherwise after lapse of a fixed period of time, as prescribed under the Limitation Act, an action is not maintainable. In this case, in order to save period of limitation, it has been stated that after exchange of the notices between the parties and particularly after service of notice dated 22-8-1997 by the petitioner raising certain disputes and the respondents had given reply through their counsel on 20-9-1997, there were negotiations between the parties 9 2002(1) Mh.L.J. 222 ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 21 arbp905.10 and several items and disputes were settled.........
........ In my opinion, even if it is accepted that there were negotiations between the parties after the issuance of notice dated 22-8-1997 by the petitioner with a request that the dispute be referred to arbitration, it would not save the period of limitation in favour of the petitioner as such negotiations and acknowledgment of part of the claim by the respondents cannot enable the petitioner to refer his claim to arbitration. It is well settled law that any agreement or negotiation entered between the parties after accrual of the cause of action to refer the matter to arbitration, does not have the effect of suspending the cause of action so as to arrest the running of limitation. Steel Authority of India Vs. J.C. Budharaja, Government and Mining Contractor, AIR 1999 SC 3275. Therefore, in my opinion, the application filed by the petitioner for appointment of Arbitrator for referring the disputes between the parties, is barred by limitation and is dismissed with costs which is quantified at Rs.3,000/-.
18 Therefore, issue here is whether negotiations after issuance of first letter of termination of the contract in the year 2001 are sufficient to extend the period of limitation of 3 years from the date of accrued cause of action. The Petitioner, admittedly in the year 2001 raised demand by terminating the contract. There is nothing on record to show that the Petitioner agreed and/or willing to continue with the same terms and conditions in case of re-negotiations and/or discussions. The ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 22 arbp905.10 effect of termination of the contract and the claim of amount so incurred in surveying the project as per the clear terms of MOU should follow only after termination of the contract.
Admittedly, the contract was terminated by the Petitioner. In absence of termination action, there was no occasion for the Petitioner to claim the expenditure so incurred. There is nothing pointed out from the documents so read and referred by the learned senior counsel appearing for the Petitioner, which are part and parcel of the Arbitrator's record, to show that any willingness in writing made by the Petitioner to waive and/or give up the claim of Rs. 4.4 crores as demanded. The negotiations based upon the various aspect of permission and/or no permission from the Government itself means the Petitioner was fully aware of the transactions and the project's condition and therefore intentionally terminated the contract in the year 2001 itself and raised the demand. The on going discussion, even if any, and/or the negotiations was nowhere sufficient in the present facts and circumstances to enlarge the limitation, as cause of action already accrued on the date of termination by the first letter itself. There is nothing on record ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 23 arbp905.10 to show and/or pointed out that the Respondent at any point of time admitted and/or acknowledged the liability as claimed by the Petitioner in earlier point of time to permit and/or to extend the period of limitation beyond the period of 3 years from the date of cause of action in question.
19There is also nothing on record to show that the Petitioner was willing and ready to perform its part on the basis of said MOU even in future on same terms and conditions and willing to adjust and/or settle the amount. There was no promise whatsoever and/or commitment made to extend the period of limitation for recovery of such money claims. Both the parties were fully aware of their obligations. The Petitioner, therefore, knowing fully the facts and circumstances and the situation of the project, took action of termination of the contract in the year 2001 and raised the claim of Rs.4.4 crores with interest even from the date of first termination notice itself. The intention was very clear.
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20 The situation in Mst. Rukhmabai and Hari Shankar
Singhania (Supra) was totally different. Those were the cases of family settlement and though agreed, other side failed to comply with the same and as discussion for negotiations were going on.
21 The concept "right to accrue the cause of action" means that the Plaintiffs must file suit/claim within prescribed period from the date of cause of action where the Defendant denied and even after discussions, there remained no further negotiations and/or discussions. The Defendant makes the situation clear and denied the rights of the Plaintiff, thereby unequivocal threatened to infringe the rights ascertained by the Plaintiff in the Suit. All it depends on facts and circumstances of the case as expressed even by the Supreme Court in the above cases. In the present case, as recorded, the Plaintiff itself, admittedly knowing fully the position of law and the facts in clear terms, terminated the contract and demanded the money.
There was no question of demanding the money unless the contract get terminated as per the agreement clause itself. This itself means the cause of action accrued as Plaintiff terminated ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 25 arbp905.10 the contract and demanded the money. The discussion for new contract, with new terms and conditions, in no way extent or enlarge the period of limitation.
22 The learned counsel appearing for the Petitioner has read and referred the sentence, "Thereafter, nothing happened pursuant to the MOU except re-negotiation of the entire issue"
and submitted that the learned Tribunal failed to consider the contents of the letters from the date of first communication to the last in question. This itself means the learned Tribunal has considered these correspondences in all respect and based upon the agreement between the parties and undisputed letters dated 26 December 2001 and 20 December 2002, passed the impugned award. I am not inclined to accept the submission that these documents were not at all considered by the Tribunal.
On the contrary, this shows the award is passed based upon the specific issue raised referring to the negotiations between the parties. It is clear even from the reasonings given and specifically in para 16, referring to both these letters read with clauses of the MOU, this itself shows that the Tribunal has considered every aspect of all these basic correspondences and ::: Downloaded on - 09/06/2013 19:33:09 ::: ssm 26 arbp905.10 the negotiations and its effect. The re-negotiation of the entire issue itself means a fresh discussion and negotiation for the fresh MOU and/or such other agreement. The submission that the discussion and/or negotiation was for to continue with the same terms and conditions of the terminated MOU, is also unacceptable.
23 So far as the principle of quantum-meruit is concerned, there is nothing pointed out and/or shown that the principles of Limitation Act do not apply to such doctrine. The monetary claims of any nature are definitely governed by the law of limitation, as recorded and the findings so given that the claim is barred by limitation. The alleged survey cost so incurred by the claimant on pre-project activities which were prior to 18 April 2001, just cannot be recoverable for this reason itself.
This reason is also, in my view, well within the purview of law and the record.
24 Therefore, the Petition is dismissed. There shall be no order as to costs.
(ANOOP V. MOHTA, J.) ::: Downloaded on - 09/06/2013 19:33:09 :::