Madhya Pradesh High Court
Offshore Infrastructures Ltd. vs M/S Bharat Petroleum Corporation ... on 10 April, 2024
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 10 th OF APRIL, 2024
REVIEW PETITION No. 76 of 2024
BETWEEN:-
OFFSHORE INFRASTRUCTURES LTD. THRIOUGH ITS
SENIOR MANAGER PROVASH C. TRIPATHIY AGE 52
HAVING THEIR REGISTERED OFFICE AT 22 UDYOG
KSHETRA MULUND GOREGAON LINK RAOD MULUND
(WEST) MUMBAI (MAHARASHTRA)
.....PETITIONER
(BY SHRI SOMIT RAIZADA - ADVOCATE)
AND
M/S BHARAT PETROLEUM CORPORATION LIMITED
HAVING ITS REGISTERED OFFICE AT BHARAT BHVAN
BALLARD ESTATE MUMBAI (MH) (MAHARASHTRA)
.....RESPONDENT
(BY SHRI UTTAM MAHESHWARI - ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Petitioner has filed this review petition for recalling of order dated 19.12.2023 passed in Arbitration Case No.23/2022.
2. In aforesaid arbitration case, application for appointment of Arbitrator was dismissed as same was barred under Limitation Act. Court held that limitation began to run when no claim certificate on 03.10.2018 was issued. Period of three year lapse on 02.10.2021 and application for appointment of Arbitrator was filed on 14.03.2022 beyond period of three years.
3. Learned counsel appearing for the petitioner submitted that order dated Signature Not Verified Signed by: SHABANA ANSARI Signing time: 24-04-2024 11:50:38 2 19.12.2023 is contrary to law and liable to be set aside. Period of limitation is to be calculated from 14.06.2021 when petitioner made a request for appointment of Arbitrator. He relied on judgment passed by Apex Court in case of BSNL Vs. Nortel Networks (India)(P) Ltd. reported in (2021) 5 SCC 738. Apex Court in said case held that application for appointment of an Arbitrator under Sections 11(6) or 11(9) of the Arbitration Act before High Court or Supreme Court would apply from the date when notice invoking an arbitration agreement is received by the other side and other side refuses to the names suggested by the opponent or refusing to suggest any other name in accordance with provisions of Section 11. In these circumstances, prayer is made for recalling of order and hearing the matter on its merits.
4. Article 137 of the Schedule of Limitation Act, 1963 will began to run within three years from the date when right to apply accrues. Final bill was raised on 20.03.2018. No claims certificate was issued on 03.10.2018 and completion certificate was issued on 05.02.2019. Grievance of petitioner began from 03.10.2018. He ought to have filed an application for appointment of Arbitrator within three years from 03.10.2018 i.e. till 02.10.2021. No such application was filed, therefore, Court has dismissed the application for appointment of Arbitrator to be barred under Limitation Act.
5. Supreme Court in case of BSNL Vs. Nortel Networks (India)(P) Ltd. (supra) in paragraph No.51 held as under:-
"51. The period of limitation for issuing notice of arbitration would not get extended by mere exchange of letters, 20 or mere settlement discussions, where a final bill is rejected by making deductions or otherwise. Sections 5 to 20 of the Limitation Act do not exclude the time taken on account of settlement discussions. Section 9 of the Limitation Act makes Signature Not Verified Signed by: SHABANA ANSARI Signing time: 24-04-2024 11:50:38 3 it clear that : "where once the time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it." There must be a clear notice invoking arbitration setting out the "particular dispute"
(including claims/amounts) which must be received by the other party within a period of 3 years from the rejection of a final bill, failing which, the time bar would prevail. "
6. In aforesaid case, appeal filed by BSNL was allowed as notice invoking arbitration was issued 51/2 years after rejection of claim on 04.08.2014 and notice invoking arbitration was held to be time barred. No claim certificate has been issued on 03.10.2018 and completion certificate was issued on 05.02.2019. Cause of action accrued to petitioner when no claim certificate was issued on 03.10.2018. Within period of three years, petitioner ought to have filed an application for appointment of Arbitrator but same was not done. Case of petitioner is barred under Limitation Act.
7. In view of aforesaid, review petition is dismissed.
(VISHAL DHAGAT) JUDGE $A Signature Not Verified Signed by: SHABANA ANSARI Signing time: 24-04-2024 11:50:38