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7. The learned senior counsel for the petitioners, relying upon the abovementioned email dated 28.06.2011 contends that the cause of action for invoking the arbitration would accrue on this date when the petitioners had clearly refuted its liability under the DCA. Relying upon Article 54 of the Schedule to the Limitation Act, 1963, it is submitted that on the date of the invocation of the arbitration by the respondent no.1, that is 10.01.2015, its claim for Specific Performance was clearly barred by limitation. He places reliance on the judgment of the Supreme Court in Ahmadsahab Abdul Mulla (2) vs. Bibijan & Ors., (2009) 5 SCC 462.

In addition, the e-mails do reflect that the parties were attempting to resolve the disputes relating to OCPS, initially by way of conversion into debt and later by converting them into equity shares, but neither materialised, resulting in the invocation of arbitration. From some of the e-mails, like the one dated 24th October 2013 from R-2 and the other one dated 24.9.2013 sent by the Claimant to R-2 it is seen that there had been personal interaction also between the Claimant and R2. In Hari Shankar Singhania (supra), after noting that there were correspondences evidencing that there were efforts made to amicably settle the disputes, the Supreme Court held in para 38 of the judgment that, the right to invoke Arbitration would accrue only from the date of the last correspondence between the parties and the period of limitation commences from the date of last communication between the parties. This judgment has been referred with approval in Shree Ram Mills Ltd v. Utility Premises P Ltd (supra). In the present claim, the last date of communication from R-2 was on 25.10.2013 and hence the period of limitation would commence from that date only.

17. I therefore, find no merit in the submissions made by the learned senior counsel for the petitioners on the claim of respondent no.1 being barred by the law of limitation as on the date of invocation of arbitration.

18. In the present case, the respondent no.1 had originally filed its Statement of Claim only seeking Specific Performance of the DCA. It was only on 11.05.2017, when the final arguments were being addressed before the Arbitral Tribunal, that the respondent no.1 filed an application seeking amendment of the Statement of Claim relying upon Section 21(2) and 21(5) of the Specific Relief Act, 1963, claiming damages as an alternate relief to the prayer of specific performance. The application seeking amendment was filed with the averment that it was only at the fag end of the proceedings on 22.04.2017, that the petitioner filed the Balance Sheet of the company for the year 2015-16 disclosing that the company had incurred a loss of about Rs.3.30 crores. With the company O.M.P.(COMM.) 318 & 319/2018 Page 14 incurring this loss, redemption of the preference shares would no longer be permissible due to proviso being added to Section 123 of the Companies Act, 2013 by way of Companies (Amendment) Act, 2015 and therefore, amendment in the Statement of Claim to include the claim of Damages as an alternate relief was sought.