BOMBAY HIGH COURT - BENCH AT GOA
VISHAL INSFRASTRUCTURE LTD., REP. BY ITS MANAGER, MAYIL VAGANAN – Appellant
Versus
LAXMIKANT D. NAIK KARMALI – Respondent
['SHIVRAJ GAONKAR', '', 'ERUSHKA DIAS', 'FATIMA DIAS']
1
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: 30th March 2021.
ORAL ORDER:
2
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.
3
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