ARB.P. 1460/2022

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Reserved on: 19^th May, 2023

Pronounced on: 03^th July, 2023

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ARB.P. 1460/2022

ANJ VC JV

..... Petitioner

Through:

Mr.Uditmanktala, Mr.Jatin Kumar,

Mr.Mohit

Sharma,

Mr.Kritik,

Mrs.Reshma Rizvi, Advocates.

versus

NATIONAL HIGHWAYS AUTHORITY OF INDIA

..... Respondent

Through:

Ms.Qurratulain, Advocate.

CORAM:

HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

1.

This order be read in consonance of order dated 21.04.2023. This

petition is filed for appointment of a sole arbitrator. The learned counsel

for the respondent submits as per law laid down in NTPC Ltd. vs. SPML

Infra Ltd. 2023 SCC OnLine SC 389, this Court while appointing an

arbitrator may consider if the claim ex facie is time barred or dead or

there exist no subsisting dispute then instead of referring the matter to

arbitrator, the Court may reject the application. Heard.

2.

A bare perusal of the judgment would show the standard of

scrutiny to examine the non-arbitrability of a claim is only prima facie

and the referral Court may not undertake a full review of the contested

facts.

3.

The dispute qua the debt being time barred is raised only because

the claim was not raised in the time allotted to the petitioner under the

Digitally Signed

By:PRADEEP SHARMA

Signing Date:03.07.2023 16:41

Signature Not Verified

ARB.P. 1460/2022

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contract for submitting its claim. Vide a letter dated 22.12.2021 the

respondent had required the petitioner to submit its claim within three

days from the date of issuance of said letter. Another letter dated

28.12.2021 of the respondent says since the claim was not made within

three days, the claim, if made, henceforth shall not be considered. The

claim was however made on 31.12.2021, i.e. 3 days thereafter.

4.

The argument of respondent is the debt is time barred only because

the claim was not submitted within three days per letter dated 22.12.2021

of the authority, needs to be rejected, per provisions of Limitation Act.

5.

Admittedly, the General Conditions of Contract (GCC) has clause

25qua Settlement of Disputes and Arbitration and sub-clause (ii) of

clause 25 notes the dispute or differences shall be referred for

adjudication through arbitration by a tribunal having sole arbitrator when

the tender amount is Rs.100 crores or less. Admittedly the tender amount

is less than Rs.100 crores, hence the sole arbitrator needs to be appointed.

6.

Admittedly, the arbitration agreement is not in dispute and so is its

validity, hence in the circumstances, the petition is allowed and

Mr.Justice Talwant Singh (Retd.) is hereby appointed as a sole arbitrator

to arbitrate the disputes between the parties. The fee of the sole arbitrator

be fixed in terms of rules prescribed by Delhi International Arbitration

Centre (DIAC).

7.

The petition stands disposed of along with pending application(s),

if any. A copy of this order be communicated to the sole arbitrator.

YOGESH KHANNA, J.

JULY 03, 2023/DU

Digitally Signed

By:PRADEEP SHARMA

Signing Date:03.07.2023 16:41

Signature Not Verified