Summary

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5. The crux of the matter is that the Respondent had invited tenders for execution of composite works pertaining to the establishment of a new Modular Penex Unit along with associated works required for the revamp and capacity enhancement at the Bina Refinery. Upon completion of the tendering process, the work was awarded to the Appellant vide letter of acceptance dated 31.12.2016. As per the terms of letter of acceptance, the work awarded to the Appellant was to be completed within a period of five months, i.e. 30.05.2017. However, the work could not be completed within the stipulated time, and ultimately the work came to be completed on 31.01.2018. The Appellant raised the final Bill bearing RA Bill No. 7 on 20.03.2018 and thereafter a "No Claim Certificate" was issued by the Appellant on 03.10.2018. The completion certificate was issued on 05.02.2019. The final bill was released on 26.03.2019. The Respondent released part payment to the Appellant on 11.06.2019 and liquidated damages of 5% was deducted on account of delay. The Appellant on 26.04.2021, issued a consolidated claim of all its outstanding dues.

6. Subsequently, the Appellant on 14.06.2021 issued a notice to Managing Director of the Respondent for appointment of Arbitrator as per Clause 8.6 of General Conditions of the Contract ("GCC") stating that as per Clause 8.6 of GCC, the Arbitrator named is Managing Director of Bharat Oman Refineries Limited or an officer of Bharat Oman Refineries Limited who may be nominated by the Managing Director, however, in view of the provisions of the 1996 Act (as amended by Act 3 of 2016, w.e.f. 23.10.2015), neither the Managing Director nor an officer is entitled to act as an Arbitrator in the matter, therefore suggest names of at least four qualified persons unconnected with either party to be selected as Sole Arbitrator in the matter. The Respondent refused to entertain the claims via communication dated 02.07.2021.

7. Aggrieved by the failure of the Respondent to appoint the Arbitrator, the Appellant has filed Arbitration Case No. 23 of 2022 under Section 11 (6) of the 1996 Act before the High Court seeking appointment of Sole Arbitrator.

8. The High Court vide Judgment and Order dated 19.12.2023 dismissed the Arbitration Case No. 23 of 2022 holding that as per Schedule 26 (Periods of Limitation) and as per Section 2(j) & 3 Part-I of Limitation Act, 1963, the time from which the period of limitation starts has to be taken as the date on which accounts in writing were signed by the Appellant and also from the date of execution of reconciliation statement of foreclosure and settlement agreement. Since the final Bill was raised on 20.03.2018 and further the "No Claim Certificate" was issued on 03.10.2018, the limitation would run from the date of issuance of "No Claim Certificate". Therefore, the period of three years has lapsed on 02.10.2021 and the application for appointment of Arbitrator has been filed by the Appellant on 14.03.2022, which is much beyond the period of limitation.

9. The Judgment dated 19.12.2023 of the High Court was sought to be reviewed by the Appellant by filing a Review Petition No. 76 of 2024. The High Court on 10.04.2024 has dismissed the review petition holding that the cause of action accrued to the Appellant at the date of issuance of "No Claim Certificate" on 03.10.2018, and the Appellant ought to have filed the application for appointment of Arbitrator within three years from 03.10.2018, which was not done. The Appellant challenged both the Judgment and Order dated 19.12.2023 and Judgment and Order dated 10.04.2024 before this Court by way of the present appeals.

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