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2022 Supreme(Raj) 3019
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Pankaj Bhandari, J.
M/s. Kishan Sahay Meena – Appellant
Versus
Union Of India – Respondent
S.B. Arbitration Application No. 58/2020
Decided On : 07-09-2022
Mr. Dinesh Kumar Mishra, for the Appellant; Mr. Anand Sharma with Mr. Namandeep Singh, for the Respondent
The period of limitation cannot be curtailed, and the rights of the parties cannot be extinct by an agreement, as per Section 28 of the Indian Contract Act.
Headnote:
Arbitration Application - Appointment of Arbitrator - Arbitration and Conciliation Act, 1996, Section 11(6) - Summary of Acts and Sections: Arbitration and Conciliation Act, 1996, Section 11(6), Section 28 of the Indian Contract Act, 1872, Section 45(3) of the Indian Contract Act - The court discussed the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996, Section 28 of the Indian Contract Act, 1872, and Section 45(3) of the Indian Contract Act. The court emphasized that the period of limitation cannot be curtailed and the rights of the parties cannot be extinct by an agreement, as per Section 28 of the Indian Contract Act. The court also highlighted the power of the court to condone the delay in matters pertaining to arbitration under Section 45(3) of the Indian Contract Act.
Fact of the Case:
The applicant filed an arbitration application seeking appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996, due to non-clearance of bills for construction work. The non-applicant contended that the claim was time-barred as per the General Conditions of the Contract.
Finding of the Court:
The court found that the applicant had made numerous attempts to resolve the dispute in accordance with the General Conditions of the Contract. The court emphasized that the issue of limitation falls within the jurisdiction of the Arbitral Tribunal and that the period of limitation cannot be curtailed as per Section 28 of the Indian Contract Act. The court allowed the arbitration application and appointed an arbitrator to decide the dispute.
Issues: The main issue was whether the claim was time-barred as per the General Conditions of the Contract and whether the applicant had made sufficient attempts to resolve the dispute in accordance with the contract terms.
Ratio Decidendi: The court held that the period of limitation cannot be curtailed and the rights of the parties cannot be extinct by an agreement, as per Section 28 of the Indian Contract Act. The court also emphasized the power of the court to condone the delay in matters pertaining to arbitration under Section 45(3) of the Indian Contract Act.
Final Decision: The arbitration application was allowed, and an arbitrator was appointed to decide the dispute.
ORDER
1. The applicant has filed this arbitration application under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of an arbitrator.
2. It is pleaded in the arbitration application that a contract was entered into between the applicant and the non-applicant for construction of office building and boundary wall for Income Tax Department at Dausa. The contract was awarded to the applicant vide letter of award dated 23.10.2013. It is also pleaded that the work in question was completed on 20.09.2015 and the same was handed-over to the non-applicant. The bills of the applicant have not been cleared. The applicant complied with the conditions of the agreement and when the non-applicant did not accede to the request of appointment of an arbitrator, the applicant was left with no other alternative, but to approach the Court for appointment of an arbitrator.
3. In reply to the said application, the non-applicant has stated that the claim was not filed within limitation as per the General Conditions of the Contract and thus, the applicant is not entitled to have an arbitrator appointed.
4. It is contended by the counsel for the applicant that the applicant has complied with the conditions provided in the agreement. It is also contended that as per the terms of Clause 25 of the agreement, the applicant initially applied to the Executive Engineer and when the Executive Engineer did not pass any order, the applicant applied to the Superintending Engineer vide letter dated 02.06.2019. It is further contended that when the Superintending Engineer also did not pass any orders, the applicant gave a notice to the Chief Engineer on 06.08.2019 to refer the dispute to the Dispute Resolution Committee (hereinafter referred to as ’DRC’). Another notice dated 01.11.2019 was given to the Chief Engineer to refer the matter to the DRC, but the Chief Engineer vide its letter dated 04.06.2020 rejected the prayer stating therein that the claims are time-barred as per Clause 25 of the General Conditions of the Contract.
5. Counsel for the applicant has place reliance on Sagar Constructions through Shri Subash Chand Saini Versus Government of NCT of Delhi: ARB.P. No.856/2021 decided by the Delhi High Court on 06.10.2021. Reliance is also placed on M/s. Uttarakhand Purv Sainik Kalyan Nigam Limited Versus Northern Coal Field Limited: Special Leave Petition © No.11476 of 2018 decided by the Apex Court on 27.11.2019. Reliance is further placed on Bharat Sanchar Nigam Ltd. & Ors. Versus Nortel Networks India Pvt. Ltd. : (2021) 5 SCC 738 and M/s. Rakesh Enterprises Versus Union of India: S.B. Arbitration Application No.100/2019 decided by a Coordinate Bench of this Court on 12.02.2021.
6. Counsel for the non-applicant has placed reliance on Simpark Infrastructure Pvt. Ltd. Versus Jaipur Municipal Corporation: 2013 (1) WLN 111.
7. I have considered the submissions and have carefully gone through the material on record.
8. The only dispute, which has been raised by the nonapplicant, is that the claim was not raised within the time provided under the General Conditions of the Contract and the same is time-barred. From perusal of the record, it is evident that the applicant-claimant has been writing letters to the Executive Engineer from 03.01.2017 to clear his claim. He had also given a notice for demand of justice on 23.02.2017. A notice was also given to the Director General, CPWD on 20.03.2017, yet another letter was written to the Executive Engineer on 06.10.2017 and further, letters were written to the Executive Engineer (Civil) on 20.03.2018 and a reminder was also sent on 30.04.2018 & third and final reminder was also given to the Executive Engineer on 12.10.2020. Thereafter, the applicant approached the Superintending Engineer vide letter dated 02.06.2019. The applicant also wrote letters dated 06.08.2019 and 01.11.2019 to the Chief Engineer to constitute the DRC, but no heed was paid to the letter and finally vide letter dated 04.06
