JUDGMENT

1. By way of present petition filed under Section 34 of the Arbitration & Conciliation Act, 1996 (hereafter, ‘the A&C Act’), the petitioner seeks setting aside of final Award dated 11.04.2023 passed by the three-member Arbitral Tribunal (hereafter, ‘the AT’) under the Rules of Arbitration of the International Chamber of Commerce (hereafter, ‘the ICC Rules’).

2. The impugned Award came to be passed in context of disputes that arose between the parties in respect of turn-key contract dated 13.10.2007 for setting up a Top Pressure Recovery Turbine at petitioner’s Ispat Steel Plant in Burnpur India (hereafter, ‘the Contract’). The Contract was executed between the petitioner and the respondents’ consortium. Article 10.1 of the Contract provided for resolution of disputes by way of arbitration under the A&C Act.

3. Arbitration in the present case was governed by procedural rules of International Court of Arbitration (‘ICA’) of the International Chamber of Commerce. Under Article 18(1) of the ICC Rules, the place of arbitration was to be fixed by the Court, unless agreed by the parties. With the consent of parties, the place of arbitration was fixed at New Delhi. A three-member Tribunal was constituted which has delivered the award in question in the present proceedings.

DISPUTES BEFORE THE AT

4. The disputes between the parties pertain to termination of the Contract by the Petitioner vide their letter dated 29.11.2012, alleging delays in completion of works by the respondents/contractors. The Contract was stipulated to be completed in 24 months from 12.10.2009, the effective date of the Contract. It is alleged that despite several extensions, the contractors could not complete the works, which forced the petitioner to get the works completed at the cost and risk of the contractors by hiring a third-party contractor on 13.02.2013, which completed the work on 29.03.2018 when the Final Acceptance Certificate (‘FAC’) was issued. Petitioner further claimed that prior to termination of the Contract, the contractors were issued warnings from time to time to expedite the performance however, the same did not yield any results.

5. The delays on the part of the Contractor were attributed inter-alia to the following reasons:

(i) Drawings were not finalised till 25.08.2008.

(ii) Respondent No. 3 (hereafter, ‘the GAC’), could not commence work at the site.

(iii) Unilateral change of design by the respondent Nos. 1 and 2 (hereafter, ‘SSIT’ and ‘Tangshan Iron’ respectively).

6. Petitioner sought to explain the gap between the termination of Contract on 29.11.2012 and invocation of arbitration on 07.01.2020, by raising the following three contentions. It was contended that the cause to sue did not arise until 29.03.2018, when the work was completed by the third-party contractor at the cost and risk of the contractors. Petitioner also referred to Clause 44.2.6 of General Conditions of Contract (hereinafter, ‘GCC’) to contend that the cost of completion of the remaining work was quantified only after the completion of works and the same was submitted to the SSIT and GAC on 05.05.2018. Upon the failure of the said parties to respond to the demand, the cause to sue arose. From 05.05.2018, the invocation on 07.01.2020 is within three years. Additionally, it was argued that the parties were engaged in settlement talks, which is evident from the emails filed by the petitioner in the arbitral proceedings. From the breakdown of settlement talks, which are claimed to have happened on 28.03.2017 & 29.03.2017, the arbitration was invoked within three years on 07.01.2020. During the course of arguments, petitioner submitted that it fell in the third limb of Entry 55 of the Schedule I of the Limitation Act 1963, as per which the cause of action was continuing even after termination, since the petitioner got the work completed from a third-party contractor under Clause 44.2.6 of GCC. Broadly speaking, petitioner’s plea is that from all angles, the claim is within