The court emphasized the importance of the finality of previous adjudication in determining the subsistence of disputes and the applicability of the limitation period in arbitration claims.

JUDGMENT

R.RAGHUNANDAN RAO,J. - The applicant had entrusted a work relating to structural steel work for calcining and refractory material plant - CRMP - Zone 5 to the respondent on 31/3/2007. A formal agreement was executed on 21/6/2007. The work was to be completed by 23/9/2008. The work was not completed by that day and extensions were given from time to time. The applicant, by a notice dtd. 24/2/2010, terminated a part of the work. Subsequently, the entire contract was terminated on 23/8/2010 by the applicant.

2. The respondent, invoked the arbitration clause, available in the agreement, for reference of certain disputes to the arbitral tribunal. After the claims of the respondent had filed, the applicant had filed a counter claim on 13/7/2011. The applicant sought an award of Rs.3,75,661.00 towards the value of estimated dismantled structural steel and sheeting, which was not handed over to the applicant and a sum of Rs.7,42,418.00 towards the value of fabricated steel structures which had not yet been arected and which had not been handed over to the respondent. Apart from this, the applicant also stated that a further sum of Rs.9,64,293.00 is due towards structural sheeting work and the value of the unfinished work was estimated approximately and sought o set out exact amount claimed after the figures could be clarified.

3. After raising the said counter claim, the applicant had filed a Memo, dtd. 2/3/2012, withdrawing the counter claim with liberty to pursue it later. This Memo was recorded by the tribunal non 2/3/2012.

4. The arbitral tribunal had then passed an award on 1/5/2012. In this award, the tribunal recorded that the termination of the contract by the applicant was unjustified, arbitrary and not tenable. The arbitral tribunal, after holding that the termination was not tenable, had gone into the validity of the counter claim of the applicant and had held that the "risk and cost" clause, under which the applicant was raising a counter claim was not applicable as the termination itself is unjustified and arbitrary.

5. Aggrieved by this award, the applicant had filed a petition under Sec. 34 of the Arbitration and Conciliation Act, 1996 (for short 'the Act'), which was dismissed by the District Court after modifying the interest payable by the applicant. This order was not challenged by the applicant and has become final against the applicant. However, an appeal is said to have been filed by the respondent for restoration of the original interest awarded by the arbitral tribunal, and the same is still pending.

6. The applicant, by notice dtd. 2/2/2013 invoked the arbitration clause and made a demand for payment of Rs.72,73,899.00under the heads, which had already been raised earlier in the counter claim by the applicant.

7. The respondent replied to this notice of arbitration by a reply notice dtd. 8/3/2013. In the said reply notice, the respondent took the stand that the applicant cannot invoke arbitration again as all the issues raised by the applicant, had been considered by the arbitral tribunal, in the earlier round of arbitration, and as such there was no dispute to be referred for arbitration.

8. The applicant, in view of the refusal of the respondent to nominate its arbitrator, under the procedure contemplated in the arbitration clause, had approached this Court, invoking Sec. 11(6) of the Act.

9. The applicant contends, in the arbitration application that the applicant is entitled to move a fresh claim as the applicant had withdrawn the counter claim before the arbitral tribunal.

10. The stand of the respondent is that this application is not maintainable on two grounds. Firstly, the application is hopelessly barred by the limitation. Secondly, the earlier decision of the arbitral tribunal that the applicant would not be entitled to any compensation under the heads raised by the applicant, as the termination of the contract by the applicant is untenable, would preclude the applicant from filing any fresh claim.

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