The claim of the petitioner was ex-facie barred by limitation, and the dispute between the parties could not be referred to arbitration.

JUDGMENT

Mukta Gupta, J. - By this petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (in short the Act), the petitioner seeks appointment of a sole arbitrator to adjudicate the disputes arising between the parties in connection with the Gas Sale Agreement dated 26th June, 2010 (in short the GSA) for the yearly supply of 33.718 BBTUs of Regasified LNG (in short RLNG) by GAIL to Kesar Alloys plant at Pithampur until 30th April, 2028.

2. According to the petitioner, in terms of Article 6.1 of the GSA, GAIL was bound to deliver and Kesar Alloys was bound to receive the Annual Contract Quantity of RLNG until 2028. As per Article 14 of the GSA, in case Kesar Alloys was to take delivery of quantity of RLNG lower than the quantity agreed under Article 6.1, the shortfall would still be charged to its account and Kesar Alloys would be liable to pay 90% of the agreed Annual Contract Quantity. This obligation to pay 90% of the contracted quantity was irrespective of the actual quantity received at the Delivery Point. According to the petitioner, it continued to make available the agreed Annual Contract Quantity of RLNG to Kesar Alloys at the Delivery point without any protest or complaint from Kesar Alloys. Thereafter the petitioner raised "Pay for if not taken" claims against Kesar Alloys for the contract years 2014 to 2019 as Kesar Alloys defaulted in the obligation since 2014.

3. According to the petitioner, Kesar Alloys sought to terminate the GSA on 25th July, 2013 unilaterally, which was not permissible under the GSA and not accepted by the petitioner. Thus rejection of the proposal of Kesar Alloys was communicated by the petitioner vide its letter dated 29th July, 2013. According to the petitioner in view of the disputes arising, the petitioner made various communications through letters and emails to Kesar Alloys on 22nd August, 2016; 31st March, 2017; 12th May, 2017; 23rd March, 2018; 17th December, 2018; 24th April, 2019 and 11th September, 2019 to amicably resolve the disputes, however, Kesar Alloys did not respond. Finally, GAIL issued a notice of settlement of disputes to Kesar Alloys on 18th March, 2020 under Article 15.1 of the GSA to amicably resolve the disputes, however no response to the same was also received and thus on 10th October, 2020 GAIL issued a notice of invocation of arbitration in terms of Article 15.6 of the GSA. GAIL provided its list of three persons requesting Kesar Alloys to appoint a sole arbitrator from the list within 30 days, however, Kesar Alloys failed to appoint the sole arbitrator and hence the petition.

4. Refuting the claim of the petitioner seeking appointment of an arbitrator, learned counsel for the respondent says that no arbitrator can be appointed under Section 11(6) of the Act for the reason the claim of the petitioner is time barred as also the petition seeking appointment of an arbitrator under Section 11(6) of the Act is also time-barred. It is contended that once the period of limitation starts running, no subsequent disability or inability to institute a suit or make an application, stops the period of limitation in terms of Section 9 of the Limitation Act. Reliance is placed on the decision reported as (2021) 5 SCC 738 Bharat Sanchar Nigam Limited Vs. M/s Nortel Network India Pvt. Ltd. and 2021 (5) SCC 705 Secunderabad Cantonment Board Vs. B. Ramachandraiah & Sons.

5. Responding to the contentions of learned counsel for the respondent, learned counsel for the petitioner submits that the unilateral termination of the contract by Kesar Alloys by its letter dated 25th July, 2013 was rejected by the petitioner vide its letter dated 29th July, 2013 and when Kesar Alloys failed to make payment for the period 2014, GAIL issued several letters including the letter dated 22nd August, 2016, inviting Kesar Alloys to settle the disputes amicably with GAIL through the various mechanisms provided under Article 15 of the GSA, failing which GAIL will be constrained to initiat