Commercial unviability of a contract is not a valid ground to evade performance.

JUDGMENT

1. Present appeal has been heard by way of video conferencing.

2. Present appeal has been filed challenging the order dated 16th February 2021 passed by the learned Single Judge whereby the petition preferred by the Appellant against the arbitral award was dismissed by the Single Judge.

3. Learned counsel for the Appellant submits that the learned Single Judge erred in holding that the petition challenging the award was barred by limitation. He states that the learned Single Judge did not appreciate that due to the nationwide COVID 19 lockdown and subsequent delay by the office of the Sole Arbitrator, the signed copy of the Arbitral Award was received only on 14th July 2020 by the Appellant and the Petition challenging the award was filed on 19th August 2020. Consequently, according to him, the petition filed by the appellant was within the limitation prescribed under Section 34(3) of the Arbitration and Conciliation Act, 1996.

4. He also submits that the Single Judge erred in holding that the claim of the Respondent was not barred by time. He states that the Appellant communicated itsinability to supply the lubricants vide letter dated 19th June 2008 and the limitation for filing the claim by the Respondent expired on 19th June, 2011. He points out that the Respondent filed its claims before the learnedArbitrator on 27th March 2012 which is clearly beyond the limitation period of three (3) years. He emphasises that Respondent-DTC had initially called upon the Appellant to refer the dispute to permanent machinery of arbitration to which the appellant vide letter dated 19th July, 2010 had given its no objection. He, however, contends thatsubsequently the Respondent-DTC unilaterally appointed a retired Judge of this Court as the Sole Arbitrator.

5. The relevant facts of the present case are that the Respondent-DTC had issued a limited inquiry dated 12th October 2007, inviting tenders from public sector oil marketing companies, including the Appellant, for supply of lubricants. The Appellant's bid dated 23 rd October 2007 was accepted, and purchase orders were placed upon the Appellant by the RespondentDTC.

6. Subsequently on 19th June 2008, the Appellant sent a letter to the Respondent apprising it about rising oil prices in the international market and the Appellant requested that the prices of the lubricants be increased by Rs. 20.50 per litre. The Respondent-DTCdid not agree to the request made by the Appellant vide letter dated 16th July, 2008 and therefore the Appellant did not continue with the supplyof the lubricants.

7. In fact it is the case of the Appellant that that due to increase in oil prices internationally, the purchase orders placed by the Respondent-DTC upon the Appellant stood frustrated.

8. On 29th July 2008, the Respondents issued a second tender inquiry and the Appellant's bid was again selected for supplying the same items under same terms and conditions as set out in the first limited inquiry dated 12th October 2007. Needless to state the Appellant was re-awarded the bid at a higher price.

9. Vide legal notice dated 13th May 2010, the Respondent-DTC informed the Appellant about the damages incurred by the RespondentDTCdue to non-supply of items under the first tender and called upon the Appellant to refer the dispute to permanent machinery of arbitration. Appellant vide letter dated 19th July, 2010 stated that it had no objection to the arbitration reference.

10. The Respondent-DTC appointed a retired Judge of this Court as the Sole Arbitratorwith consent of the appellant, who subsequently awarded a sum of Rs.1,09,22,527.42/- along with interest @ 9% per annum in favour of Respondent-DTCvide arbitral award dated 28th November, 2019. The fact that the Sole Arbitrator had been appointed with consent of the appellant is admitted by the appellant in paragraph 2.12 of the present appeal.

11. Subsequently, the Respondent-DTC filed a petition before this Court for execution of the arbitral award on 14th August, 20