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NAVIN CHAWLA
Zenith Erectors Private Limited – Appellant
Versus
Brahmaputra Cracker And Polymer Limited – Respondent
JUDGMENT
Navin Chawla, J. (Oral)
1. This petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') seeking appointment of an Arbitrator for adjudicating the disputes that have arisen between the parties in relation to the Contract Agreement dated 03.08.2011 executed between the parties whereby the petitioner was awarded the work of "Composite Works of C2+ Recovery & Gas Sweetening Unit (GSU) of M/s Brahmaputra Cracker and Polymer Limited at Lakwa, (Assam)".
2. The Arbitration Agreement between the parties is contained in Clause 107 of the General Conditions of Contract.
3. The petitioner invoked the Arbitration Agreement vide notice dated 28.11.2020. The petitioner thereafter filed a petition under Section 11 of the Act before the High Court of Calcutta, being A.P No.373/2021. The said petition was withdrawn on 14.12.2021, stating that as the seat of the arbitration is New Delhi, the High Court of Calcutta would not have the territorial jurisdiction to entertain the said petition. The present petition has thereafter been filed by the petitioner on 22.09.2022.
4. The learned counsel for the respondent, drawing
The Court's jurisdiction at the stage of Section 11 of the Act is limited, and the Arbitral Tribunal is the preferred authority to decide questions of non-arbitrability.
The period of limitation for filing a petition seeking appointment of an Arbitrator is distinct from the period of limitation for the substantive claims made in the underlying commercial contract.
Arbitration requests must be filed within three years of the cause of action; failure to act in time bars subsequent petitions.
An application under Section 11 for appointment of an arbitrator is time-barred if filed after three years from the refusal to appoint, with delays not justified.
The main legal principle established is that the Court should not reject an application for appointment of an arbitrator at the threshold unless the claim is manifestly, ex-facie and hopelessly time-....
The appointment of an Arbitrator should proceed if there is doubt about the subsistence of the disputes, and objections regarding claims should be left to be determined by the Arbitrator.
Claims withdrawn do not reset the limitation period; the original cause of action's date governs the timeliness of arbitration requests.
The main legal point established is the limited scope of examination under Section 11 of the A&C Act, which focuses solely on the existence of an arbitration agreement.
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