The plea of limitation is a mixed question of law and fact and must be raised at the earliest point in time before the learned Arbitrator.

1. M/s. Raj Kishan and Company, the Petitioner, has in this petition under Section 34 of the Arbitration and Conciliation Act 1996 (‘Act’) challenged an Award dated 4th June 2004 of the learned sole Arbitrator in the disputes between it and the Respondent, National Thermal Power Corporation Ltd. (‘NTPC’), arising out of the award by NTPC in favour of the Petitioner of the contract for civil works of coal handling plant package at NCPS, NTPC, Dadri on 6th February 1989.

2. The value of the contract was Rs.4,69,25,010. The scheduled date of start was 6th February 1989 and the scheduled date of completion was 5th February 1991 i.e. after 24 months. The first extension of time (EOT) for completion was granted up to 30th June 1993, the second EOT up to 31st December 1995 and the third EOT up to 31st January 1997.

3. According to the NTPC, the Petitioner abandoned the site on 31st December 1997. On 31st January 1998, NTPC issued a notice under Clause 41.1 of the General Condition of Contract (‘GCC’) stating that NTPC would restart the work and get it done at the risk and cost of the Petitioner. By a further letter dated 17th/20th December 1999, NTPC called upon the Petitioner to take the measurement of the balance works remaining to be executed, at the risk and cost of the Petitioner in terms of Clause 41.2 of the GCC. Thereafter, the balance work was got done through other agencies and was completed on 30th September 2000. The final bill of the Petitioner was prepared on 4th September 2001. NTPC invoked the arbitration on 15th September 2001.

4. The first submission by Mr. Chetan Sharma, learned Senior counsel for the Petitioner, is that the claims of NTPC were barred by limitation. According to the Petitioner, the cause of action for the purposes of limitation arose on 31st December 1997 when the Petitioner is, alleged by NTPC, to have abandoned the work, or at best on 31st January 1998 when the Petitioner was served with notices by NTPC under Clause 41 of the GCC for carrying out the balance works at the risk and cost of the Petitioner. It is pointed out that at one place in the impugned Award the Arbitrator observed that “all these letters relate to the period much after the claimant terminated the contract vide notice dated 31st January 1998 and yet there is no emphatic assertion that the contractor has completed the work contemplated in the contract” thereby accepting that the starting point for limitation was 31st January 1998. Referring to Section 43 of the Act, it is contended that the question of limitation has to be with reference to Section 3 of the Limitation Act, 1963 and that on the face of it, NTPC’s claim was barred by limitation. Reliance was placed on the decisions in S. Rajan v. State of Kerala AIR 1992 SC 1918, V.M. Salgaokar & Bros. v. Board of Trustees Marmugao AIR 2005 SC 4138, Oil & Natural Gas Corporation Limited v. Amtek Geographical Private Limited 2004 (3) Raj.581 (Del.), Jammu & Kashmir Bank Limited v. Shree Digvijay Cement 154 (2008), DLT 18 (DB), Smt. Krishna Mittal v. Municipal Corporation of Delhi 2011(1) Raj. 86 (Del.) and Biba Sethi v. Dyna Securities Limited 2009 INDLAW DEL 1017.

5. The plea of the Petitioner that NTPC’s claims were barred by limitation was not raised before the learned Arbitrator. A perusal of the present petition under Section 34 of the Act also reveals that no such ground has been raised by the Petitioner even in the petition. This ground has been raised only at the time of the arguments. It is a settled position of law that plea of limitation cannot be decided as an abstract plea of law divorced from the facts. As explained in RameshB. Desai v. Vipin Vadilal Mehta 2006 (5) SCC 638 “a plea of limitation is a mixed question of law and fact.” Consequently, unless the plea of limitation is raised at the earliest point in time before the learned Arbitrator, it cannot be adjudicated upon as a mixed question of law and fact. In Oil and Natural Gas Corporation Limited vs. Mc