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IN THE HIGH COURT OF DELHI AT NEW DELHI
Vibhu Bakhru, J.
Glocaledge Consultants Pvt. Ltd. - Petitioner
Versus
REC Power Distribution Company Limited - Respondents
ARB.P. 1045 of 2021
Decided On : 21-02-2022
Arbitration and Conciliation Act, 1996 - Section 21 – To allow present petition and may further be pleased to appoint/nominate an Arbitrator - To refer entire disputes and differences that have arisen between parties to arbitration to be conducted by Arbitration Tribunal - Petitioner avers that it had completed work in accordance with Work Order in month of December - Petitioner claims that respondent sent an e-mail requesting for support in respect of a non-mobile application - According to petitioner, same was beyond scope of work as agreed under Work Order - Petitioner states that notwithstanding same, petitioner executed said work and claimed that it was entitled to a sum of Rs.56,58,006/- for extra features and services provided that were beyond original scope of work under Agreement - According to petitioner, a sum of Rs.6,35,960/- was paid in month of April - Remaining amount of Rs.50,22,046/- remains due and payable.
Finding of the court :
Limited question to be addressed is as to whether it is ex facie clear that claim made by petitioner is barred by limitation - There is no communication acknowledging any payments due to petitioner - It is petitioner’s case that respondent had denied payments as claimed by it and had not cleared same since 2016 - In this view of matter, there is no scope to entertain even an iota of doubt that petitioner’s claim is barred by limitation - Court does not consider it apposite to accede to petitioner’s prayer for appointing of an Arbitrator, both, on ground that it had not issued a notice as required under Section 21 of A&C Act and that petitioner’s claim for payment of work done in 2016 are ex facie barred by limitation.
Result: Petition dismissed
JUDGMENT :
Vibhu Bakhru, J.
1. The petitioner has filed the present petition, inter alia, praying as under:
(ii) To refer the entire disputes and differences that have arisen between the parties to the arbitration to be conducted by the Arbitration Tribunal.
(iii) To pass such other and further order as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.”
2. The respondent had invited offers for “Mobile Application Development for progress monitoring of Projects across PAN India on Real Time Basis”. The petitioner was successful and the respondent awarded the contract for the aforesaid mobile application called “Garv” to the petitioner. The respondent issued a Work Order dated 14.09.2015 (hereafter ‘the Work Order’) to the petitioner to develop the said mobile application at a contract value of Rs.19,45,000/-. The General Conditions of the Contract (hereafter ‘the GCC’) as applicable to the Work Order includes an Arbitration Clause that reads as under :
1.1 Disputes under the agreement shall be settled by mutual discussion.
1.2 However, in the event amicable resolution or settlement is not reached between the parties, the differences of disputes shall be referred to and settled by the Sole Arbitrator to be appointed by Chairman, REC PDCL.
1.3 The arbitration proceedings shall be in accordance with the prevailing Arbitration and Conciliation Act, 1996 and Laws of India as amended or enacted from time to time.
1.4 The venue of the arbitration shall be New Delhi, India.
1.5 The fee & other charges of Arbitrator shall be shared equally between the parties.
1.6 The Arbitrator will give the speaking & reasoned award. The party will not be entitled to any Pendente lite interest during arbitration proceedings.”
3. The petitioner avers that it had completed the work in accordance with the Work Order in the month of December, 2015. The work was also appreciated by the respondent company in its letter dated 05.04.2016. There is no dispute that the petitioner was paid the agreed consideration for the said work.
4. The petitioner claims that on 23.02.2016, the respondent sent an e-mail requesting for support in respect of a non-mobile application. According to the petitioner, the same was beyond the scope of work as agreed under Work Order dated 14.09.2015. The petitioner states that notwithstanding the same, the petitioner executed the said work and claimed that it was entitled to a sum of Rs.56,58,006/- for the extra features and the services provided that were beyond the original scope of work under the Agreement. According to the petitioner, a sum of Rs.6,35,960/- was paid in the month of April, 2016. However, the remaining amount of Rs.50,22,046/- remains due and payable.
5. Mr. Varma, learned counsel appearing for the respondent, has opposed the present petition on two grounds. First, on the ground that the petitioner has not issued the notice under Section 21 of the A&C Act invoking the Arbitration Clause and second, that the claim sought to be raised is barred by limitation.
6. Insofar as the notice under Section 21 of the A&C Act is concerned, it is admitted that the petitioner did not send any notice to the respondent. The petitioner relies upon two communications. First, an e-mail dated 28.08.2019 sent to one Mr. Rajiv Sharma at the e-mail address: rajeev_sharma@pfcindia.com. The contents of the said e-mail are relevant inasmuch as the petitioner claimed that “REC officials have refused to pay us, so I request you to appoint a third party arbitrator who can give a fair opinion to close this matter.” This e-mail is not addressed to the respondent. However, it does indicate that the respondent had declined to pay the amount as claimed by the petitioner.
7. The second communication relied upon by the petitioner is a complaint lodged with the Department of Administrative Re
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