Harcharan Dass Gupta v. Municipal Corporation of Delhi (North)

ORDER

08.11.20L2

¶1Adrnit.

¶2Learned counsel for the respondent accepts notice..

¶3At request of learned counsel for the parties, the appeals are taken up for final disposal.

¶4The present appeals have been filed by the appellanVcontractor under ,h \, Section 37 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the Act) aggrieved by the impugned orders of the learned Single Judge dated 2I.08.2012 setting aside the impugned awards in favour of the contractor. The impugrred orders are predicated only on the plea of the claims being barred by tirne, and the other objections of the respondentAvlCD under Section 34 of the said Act have not been analysed. This plea of limitation was never taken before the fubitral Tribunal till the stage of filing of synopsis after arguments, where the respondent sought to slip-in the said plea by including it as a part of the written synopsis. However, the learned Arbitrator has dealt with the said plea on merits and rejected the same.

¶5The submission of learned counsel .for the appellant, thus, is that a plea of lirnitation cannot be permitted to be slipped-in in this manner even though the Arbihal Tribunal has dealt with this plea on merits, as the appellant got no opportunity to produce the relevant material to rebut such a clairn of bar of lirnitation.

¶6We may notice that the present case pertains to an old dispute where tlre work was completed on 18.09.1992 in FAO(OS) No. 53412012 and on

17.08.1992 in the FAO(OS) No. 535/2012. In both the appeals, the last payment was made in 1995 while the appellant issued notice invoking the arbitration clause on.ll .02.2003. It is relevant to note that the final bill was still not prepared by the respondent but was produced, once again at the stage of final arguments, before the Arbitrator. This ii stated to be at the behest of the Arbitrator.

¶7Learned senior counsel for the appellants has also pointed out that even as per this final bill prepared, there is due to the appellants albeit a e 4-4 tl L small amount apart from the balance 10o/o of the total security amount which has not been refunded as yet. These two factual positions are not disputed by the respondent.

¶8The impugned judgrnent is based on appreciation of a distinction between the limitation for invocation of arbitration and for lodgernent of a clairn. It has analysed certain documents forrning part of the Arbitral Tribunal as also various judgments to come to flris conclusion.

¶9We are of the view that the manner in which the respondents sought to slip-in this plea of bar of limitation cannot be appreciated. We are conscious that a plea of lirnitation can be raised at any stage but given the situation, it was a mixed question of law and fact. It should have been specifically pleaded giving an opportunity to the appellant to respond to that plea and the parties ought to have been given opportunity to produce the material in support of this plea. We are not inclined to disturb the findings of the Arbitrator qua the other aspects, especially when.they have not been dealt with by the learned Single Judge. We are, thus, of the view that the appellant must get full opportunity to meet this plea and, thus, the irnpugned order dated 21.08.2012 is set aside. ;

¶10The specific plea of limitation setting out the relevant facts will be filed by the respondent before the learned Arbitrator within four weeks from today with supporting documents and the appellant will respond to the salne with relevant documents within four weeks thereafter. The matter is remanded to the fubitrator for decision on this lirnited issue and, in case, the finding is adverse to the respondent, it will naturally be open to the respondent to challenge the said finding as also the finding on rnerits, as the learned Single Judge has not dealt with the objections on merits filed by the e l respondent.

¶11The record of the Arbitrator, which is lying in the Court, be rernitted back to the Arbitrator. It is agreed that the record will be collected by the learned counsel for the respondent in a sealed cover to be handed over to the Arbitrator.

¶12We make it clear that the adjudication by the Arbitrator on this limitation issue will be uninfluenced by any observations made in the impugned order, wtrictr is being set aside. The appeals are, according, allowed to the aforesaid extent leaving the parties to bear their own Costs. ffi*

SANJAY IilSHAN KAUL, J. vrPIN kt,r. NOVEMBER 08,2012 ,BSR' J

7 &9. * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO(OS) No. 534/2012 and FAO(OS) No. 535/2Q12 HARCHAR^"T,i*9,Hto * Harisrr *;it*i,1.:ttut.,,,o, Advocate along with IW. R.K. Modi, Advocate. versus MUNICIPAL CORPORATION OF DELHI (NIORTH) .... Respondent Through: Mr. H.S. Phoolka, Senior Advocate along with Ms. Mini Pushkarna & Mr. Gursimran Singh, Advocates. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE VIPIN SANGHI