A fresh application under Section 11(6) of the Arbitration Act, filed after an unconditional withdrawal of a prior application, is not maintainable and is time-barred if filed beyond three years from the date of refusal to appoint an arbitrator.

JUDGMENT :

J.B. PARDIWALA, J.

1. For the convenience of exposition, this judgment is divided into the following parts:

1. Leave granted.

2. This appeal arises from the final judgment and order dated 31.01.2024 (“impugned order”) passed by the High Court of Judicature at Bombay in Commercial Arbitration Petition No. 1 of 2023, wherein the High Court allowed the petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short “the Act, 1996”) at the instance of the M/s Shahaji Bhanudas Bhad (“the respondent”) and appointed Justice (Retd.) Dilip Bhosale as the sole arbitrator to adjudicate the disputes and differences between HPCL Biofuels Ltd. (“the appellant”) and the respondent.

(A) FACTUAL MATRIX

3. The appellant is a Government company within the meaning of Section 4(35) of the Companies Act, 2013 and is engaged inter-alia in the business of manufacturing bio-fuels. The appellant is a wholly-owned subsidiary of Hindustan Petroleum Corporation Ltd.

4. The respondent is engaged in the business of manufacture, supply and erection of the equipment and machinery required for the setting up of sugar factories and allied products in the name of M/s S.S. Engineer, as a sole proprietor.

5. Between 27.06.2012 and 30.08.2012, the appellant floated tenders for enhancing the capacity of various process stations and Boiling House at Lauriya (West Champaran) and Sugauli (East Champaran). The respondent participated in the bidding process and was declared as the successful bidder. Subsequently, in accordance with the terms and conditions of the tender, the appellant in October and November of 2012 issued purchase orders in favour of the respondent for enhancing the capacity of the concerned Boiling House on a turn-key basis. Between 21.11.2012 and 25.03.2014, the respondent supplied various equipment under the purchase orders and raised invoices for the same.

6. While the work was in progress, the appellant expressed its concerns about the slow progress of work, quality of materials supplied and non-adherence to timelines by the respondent and attempts were made to resolve the same through mutual discussions between the parties.

7. On 13.06.2013, the appellant floated two more tenders for the purpose of completion of certain work and supplies at the Sugauli and Lauriya plants respectively. In August 2013, the appellant issued purchase orders in favour of the respondent, for completing various works including supplies on a lump-sum turnkey basis. The respondent raised invoices between 29.03.2013 & 25.03.2014 for the service portion of the turn-key contract. Accordingly, as per the respondent, the total sum payable to it under the various purchase orders aggregated to Rs. 38,18,71,026/-.

8. Between 18.12.2012 and 07.11.2013, the appellant made an aggregate payment of Rs. 19.02 crore to the respondent, with the last payment being made on 07.11.2013. As per the case of the respondent, the balance amount of Rs. 18,12,21,452/- remained outstanding. The discussions between the parties undertaken between October 2013 and January 2014 did not yield any fruits as the issues relating to payment and deficiency in services rendered could not be resolved. In this regard, the respondent vide an e-mail dated 02.02.2014 made a request to release the balance amount at the earliest, so as to enable it to complete the balance work. The appellant vide an e-mail da