JUDGMENT :

1. The Court: The present application has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as, “the 1996 Act”) for reference to arbitration of the dispute which has arisen between the parties in connection with an Option Agreement dated October 18, 2010, as amended on July 29, 2011, which contains an arbitration clause.

2. Such contention is disputed by the respondent, inter alia, on the ground that the Agreement is insufficiently stamped. It is argued that as per Item No.5(b)(ii) of Schedule 1A of the West Bengal Amendment of the Indian Stamp Act, the stamp duty payable for the Option Agreement is at least above Rs.23,00,000/-, whereas the said Agreement has been recorded on a stamp paper of Rs.100/- only. In view of Section 38 of the Indian Stamp Act, 1899 (in brief, “the 1899 Act”) the court cannot refer the matter to arbitration. In such context, the learned Senior Advocate appearing for the respondent cites N.N. Global Mercantile Private Limited Vs. Indo Unique Flame Ltd. And others, reported at 2023 SCC OnLine SC 495.

3. Next, it is argued that the application is misconceived and bad for non-joinder of the Special Purpose Vehicle (SPV), namely Orissa Steel Expressway Private Limited, which a party to the Option Agreement containing the arbitration clause.

4. Clauses 5.2 and 7(b) imposes certain obligations and undertakings on the said SPV. Hence, it is argued that any order or award passed in an arbitration arising out of the Option Agreement would affect the SPV and its rights. The SPV may refuse to register any transfer of shares inter se the parties as under Section 58 of the Companies Act, 2013 (for the sake brevity, “the 2013 Act”) and the private company may refuse the transfer of any securities in pursuance of the company’s powers under its Articles or otherwise. Thus, the application is not maintainable in its present form for non-impleadment of the SPV.

5. The learned Senior Advocate for the respondent next argues that the claim sought to be referred to arbitration is ex facie barred by limitation. The right to exercise Option as per the Agreement-in-question accrued on January 13, 2017 with the termination of the Concession Agreement with the National Highways Authority of India (NHAI), which initiated the project. The Option Period, as per the Option Agreement, also expired on the same date in terms of Clause 1.1.27 and 1.1.20 respectively, read with Clause 3.1 of the Agreement. Clause 10 of the Agreement clearly stipulates that the same would remain in force and in effect until expiration of the Option Period and it was clarified that the notice would have to be served on or prior to expiry of the Option Period, whereas the right of Option has been exercised first only on June 1, 2002, much after the expiry of the limitation period. Thus, in the absence of any invocation by a notice and/or claim being made by the petitioner during the relevant period or within the period of limitation, the claim stands ex facie time-barred. In such context, learned senior counsel cites Vidya Drolia and others Vs. Durga Trading Corporation, reported at (2021) 2 SCC 1.

6. It is next argued by the respondent that a Corporate Insolvency Resolution Process (CIRP) commenced on March 30, 2017, that is, after the Option Right accrued in favour of the petitioner on January 13, 2017. A Resolution Plan was ultimately approved by the National Company Law Tribunal (NCLT) on April 18, 2018. However, the petitioner did not file any claim during the course of the CIRP, thus leading to its claim being extinguished upon approval of the Plan. Hence, the subject-matter and claim are demonstrably ‘deadwood’. Learned senior counsel places reliance, again, on Vidya Drolia (supra) in support of such proposition.

7. The learned Senior Advocate, while dealing with the petitioner’s reliance on an order dated August 30, 2022 passed by the NCLT, Cuttack Bench in an application under Section 8 o