Back
IN THE HIGH COURT OF JHARKHAND AT RANCHI
SUJIT NARAYAN PRASAD, J.
Jharia Petrol Supply, Durgapur, through its proprietor Maina Devi – Appellant
Versus
Indian Oil Corporation Limited, through its D.G.M. (R.S.) – Respondent
Arbitration Application No.14 of 2021
Decided on : 02-03-2022
Arbitration - Appointment of Arbitrator - Arbitration and Conciliation Act, 1996 - Section 11(6)(C) - Clause 21 - [Petrol HSD Dealer Agreement] - [Arbitration and Conciliation Act, 1996, Section 11(6)(C)] - The court discussed the applicability of the provision of Article 137 of the Limitation Act, 1963 in an application filed under Section 11(6)(C) of the Act, 1996. The court held that the instant application filed after a delay of more than 16 years from the date of the order passed by the Hon’ble Division Bench of this Court in L.P.A. No. 696 of 2001 is barred by limitation since filed after a delay of more than the period of three years, as provided under Article 137 of the First Schedule of the Limitation Act, 1963.
Fact of the Case:
The petitioner/applicant entered into a dealership agreement for the sale and disposal of Petrol / High Speed Diesel Oil and certain other petroleum products. The agreement contained a clause for the resolution of disputes. The petitioner/applicant's dealership agreement was terminated, and subsequent legal actions were dismissed. The petitioner/applicant then made a request for the appointment of an Arbitrator after a delay of about 16 years from the date of the order passed by the Hon’ble Division Bench of this Court in L.P.A. No. 696 of 2001.
Finding of the Court:
The court found that the instant application filed under Section 11(6)(C) of the Act, 1996 is barred by limitation since it was filed after a delay of more than 16 years from the date of the order passed by the Hon’ble Division Bench of this Court in L.P.A. No. 696 of 2001.
Issues: The main issue was the maintainability of the instant application under Section 11(6)(C) of the Act, 1996 on the ground of limitation.
Ratio Decidendi: The court held that the instant application filed after a delay of more than 16 years from the date of the order passed by the Hon’ble Division Bench of this Court in L.P.A. No. 696 of 2001 is barred by limitation since filed after a delay of more than the period of three years, as provided under Article 137 of the First Schedule of the Limitation Act, 1963.
Final Decision: The instant application was dismissed by the court.
JUDGMENT :
The matter has been taken up through video conferencing.
2. The instant application has been filed under Section 11(6)(C) of the Arbitration and Conciliation Act, 1996 for appointment of an independent Arbitrator and for reference of the dispute arising out of Clause 21 of the Agreement dated 29.09.1967 for Petrol HSD Dealer Agreement, between the parties for adjudication.
3. The brief facts of the case which led the petitioner/applicant to approach this Court by filing the instant application, are that an agreement was entered in between the petitioner/applicant and respondents, to be known as Petrol HSD Dealer Agreement, for the purpose of sale and disposal of Petrol/High Speed Diesel Oil and certain other petroleum products.
The aforesaid contract contains a provision as under Clause 21 for settlement of dispute through Arbitrator.
The petitioner/applicant was carrying out the business in terms of the aforesaid contract. However, an explanation was sought for on 15.09.1999 asking to reply as to why the penal action should not be initiated in line with Clause 14 of the said dealership agreement in violation of the terms and conditions of the aforesaid dealership agreement.
The petitioner/applicant replied. However, the aforesaid reply was not found to be satisfactory and in consequence thereof, the dealership agreement was cancelled.
The petitioner/applicant approached to this Court by filing writ petition being C.W.J.C. No.827 of 2000 (R). However, the aforesaid writ petition was dismissed against which intra-court appeal being L.P.A. No.696 of 2001 was preferred but the same was also dismissed vide order dated 22.04.2002.
The petitioner/applicant, thereafter, made a request for appointment of Arbitrator vide application dated 28.04.2018. According to the petitioner/applicant, when the Arbitrator, in terms of the contract, has not been appointed, the instant application under Section 11(6)(C) of the Arbitration and Conciliation Act, 1996 has been filed.
The instant application was heard on 22.11.2021. Mr. Rahul Lamba, learned counsel, after waiving notice on behalf of respondents, had sought for four weeks’ time to file counter affidavit. The matter was directed to be posted thereafter.
The matter has been listed today for hearing of the matter.
Mr. Lamba, learned counsel appearing for the respondents, has submitted that although no counter affidavit has been filed, but he is ready to argue the matter on merit.
The matter has been heard on merit with the consent of the learned counsel for the parties.
4. Mr. Vipul Poddar, learned counsel appearing for the petitioner/applicant, has submitted that it is a fit case where the sole Arbitrator is required to be appointed for adjudication of the claim in terms of Arbitration Agreement as contained under Clause 21.
He further submits that the petitioner/applicant, in terms of the aforesaid condition stipulated in the contract, made request for appointment of Arbitrator vide application dated 28.04.2018 but the same was not responded. It is the laches on the part of the respondents in not appointing the Arbitrator, therefore, the instant application.
5. Per contra, Mr. Rahul Lamba, learned counsel appearing for the respondents, submits that the instant application is not maintainable on the ground of limitation.
According to him, the instant application has been filed after inordinate delay of about 20 years from the date of passing of the order by the Hon’ble Division Bench of this Court in L.P.A. No. 696 of 2001 whereby liberty was granted to the petitioner/applicant to approach before the authority for appointment of Arbitrator.
He further submits that the request for appointment of Arbitrator was also made after lapse of about 16 years from the date of order passed in L.P.A. No. 696 of 2001.
He, in order to strengthen his argument, has relied upon the judgment rendered by Hon'ble Apex Court in Bharat Sanchar Nigam Limited and Another v. Nortel Networks India Private Limited [(2021) 5 S
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
