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IN THE HIGH COURT OF BOMBAY AT GOA

APPEAL UNDER ARBITRATION NO. 1 OF 2020, WRIT

PETITION NO.174 OF 2021, CIVIL APPLICATION NOS. 20

OF 21 AND 5 OF 2020 AND MISC. CIVIL APPLICATION NO.

58 OF 2020.

APPEAL UNDER ARBITRATION NO. 1 OF 2020.

WITH

WRIT PETITION NO.174 OF 2021

WITH

CIVIL APPLICATION NO. 20 OF 2021

IN

WRIT PETITION NO.174 OF 2021

WITH

CIVIL APPLICATION NO. 5 OF 2020

IN

APPEAL UNDER ARBITRATION NO. 1 OF 2020.

WITH

MISC. CIVIL APPLICATION NO 58 OF 2020.

IN

APPEAL UNDER ARBITRATION NO. 1 OF 2020.

VISHAL INSFRASRUCTURE LTD., REP.

BY ITS MANAGER MAYIL VAGANAN

VS

LAXMIKANT D. NAIK KARMALI.

…. Applicant.

…. Respondent.

Shri S. Gaonkar, Advocate for the petitioner.

Shri P. A. Kholkar, Advocate for the respondent.

Coram: DAMA SESHADRI NAIDU, J.

Date: 30^th March 2021.

ORAL ORDER:

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Introduction:

A person, though not a lawyer, is well-versed in conducting

arbitration proceedings. Let us call him 'prosecutor'. A company

contracts with him; under that contract, he leads the proceedings for

the Company before the sole arbitrator. His fee is linked to the

Company's success. The quantum of the fee depends on whether the

Company succeeds or its rival succeeds in the counterclaim. In each

instance, the percentage of the fee differs. The prosecutor has no role

to play in the proceedings once the award is passed. The Company

succeeded.

2. The prosecutor has claims his fee when the award attains

finality; that is after this Court’s judgment under section 37 of the

Arbitration and Conciliation Act, 1996. But the Company counters

the prosecutor’s claim. It argues that the claim is barred by limitation.

According to it, the prosecutor ought to have demanded the fee in

three years from the initial arbitration award. Is it so?

Facts:

3. The appellant is a company. It carries on construction

activity. In July 2001, the Marmugao Port Trust contracted with the

appellant. Through that contract, the Company was asked to

construct a 100 bedded hospital for the Port Trust.

4. In the execution of that construction contract, disputes

arose. Then, the Company invoked the arbitration clause. To

prosecute that arbitration, it appointed respondent Laxmikant D.

Naik as its consultant. That appointment was in July 2006. Executing

the task assigned to him, Laxmikant prepared the necessary claim,

presented it before the Arbitrator, and pursued the proceedings.

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Eventually, through an award dated 17.1.2009, the learned Arbitrator

ruled against the Port Trust and awarded monetary compensation to

the Company.

5. Aggrieved, the Port Trust applied to the Principal District

Judge, South Goa, Margao, under section 34 of the Arbitration and

Conciliation Act. But it was to no avail; on 10.10.2010, the District

Judge dismissed the application. Further aggrieved, the Port Trust

invoked section 37 of the Act and appealed to this Court. Through its

judgment dated 14.2.2017, this Court partially modified that order;

that modified award has become final.

6. As this Court disposed of the appeal in February 2017,

Laxmikant demanded from the Company 12.5.% of the award as his

"total fees". It was on 21.7.2017. But the Company raised various

objections to Laxmikant’s claim for the fees. By the time the matter

reached this Court, all other objections, such as the non-execution of

the appointment letter, have fallen on the wayside. But the Company

has persisted with one plea: limitation.

7. Even in its reply dated 20.12.2017, the Company contended

that Laxmikant’s claim for fees had been barred by limitation.

According to it, the appointment letter, dated 10.7.2006, provided for

arbitration of any dispute regarding the fees. Laxmikant invoked that

clause and had a sole arbit