Proper invocation of arbitration clauses is essential for claims to be valid; failure to do so results in dismissal of the petition.

ORDER :

SUNITA AGARWAL, C.J.

Heard the learned advocates for the parties and perused the record.

2. The present petition seeking for appointment of the Arbitration invoking Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short as ‘the Act, 1996) has been filed for adjudication of the dispute between the petitioner and the respondent in relation to the contract dated 15.09.2004 and 27.05.2008, as is clear from the prayer clause of the present petition.

3. The record indicates that a notice dated 16th May, 2019 was sent by the petitioner to the respondent ONGC with various claims indicated in the table stating that the petitioner had been deprived of its contractual rights by the ONGC and its legitimate claims have been withheld for a long time. The notice itself indicates the statement of the petitioner that it has been chasing the ONGC for more than a decade.

4. A perusal of the notice further indicates that the claims were made mainly with respect to HSD Hike pertaining to the three contracts namely agreement dated 28th April, 2023, 19th February, 2024 and 5th March, 2014. On receipt of the said notice, the respondent ONGC replied vide communication dated 04.09.2019, which is appended at page No. ‘79’ of the paper book, asking the petitioner to provide necessary documents pertaining to its claim and to give separate notices for invocation of the respective arbitrations, as per the respective arbitration clauses. In response thereof, the petitioner had sent a notice dated 14.09.2019, which is appended at page No. ‘80’ of the paper book. The said notice referred to the letter dated 04.09.2019 sent by the Dy. General Manager (Logistic), ONGC, Ankleshwar Asset, Gujarat and the subject of the said communication was “request for invocating Arbitration with respect to contract 05.03.2014”. The said communication further refers to the contract documents appended thereto to state that introduction of service tax was a post contract change in law. Moreover, there was no provision of Service Tex Deduction from transport service provider. The ONGC withheld amount equivalent to Service Tax from each of the bills of the petitioner and the withheld amount was Rs. 4,15,521/- during the contract period. The claim was also made with respect to its clear and passed bills amounting to Rs. 3,37,188.32 pertaining to the contract in reference, which is dated 05.03.2014. Further claim with regard to HSD escalation as per the contract provision, stood remain unpaid.

5. On a query made by the Court as to when and how notice invoking arbitration clause under Section 21 of the Act, 1996 was issued by the petitioner with respect to the claims made in the present petition pertaining to the contract dated 15.09.2004 and 27.05.2008, no plausible reply could be offered. Only this much is sought to be submitted by the learned advocate for the petitioner that the petitioner was pursuing its claim for a long time and ultimately, by communication dated 19.01.2021, the claim of the petitioner was rejected being not tenable by the ONGC. The petitioner had no option to file the present application soon after the rejection of its claim within time period prescribed under section 43 of the Act, 1996 read with Article 137 of the Limitation Act, 6. To the contrary, the learned advocate for the respondent referring to the communication dated 19.01.2021 has submitted that the said communication was pertaining to the letter dated 14.09.2019, which is at page No. ‘80’ of the paper book, which was the claim made by the petitioner pertaining to the contract dated 05.03.2014. It is contended that no notice under Section 21 of the Arbitration and Conciliation Act, 1996 had been issued pertaining to any outstanding claim in relation to the contract dated 15.09.2004 and 27.05.2008. The contention is that the present petition is nothing but a dishonest effort of the petitioner to extract more money from the respondent ONGC.

7. The attention of the Court is invited to th