TaxTMI 
TaxTMI 
2025 (10) TMI 1443
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....iation Act, 1996 ("1996 Act") by the Appellant on the ground that the application is time-barred. The subsequent Review Petition No. 76 of 2024 filed by the Appellant was also dismissed by the High Court vide Judgment and Order dated 10.04.2024. 4. The Appellant herein is Offshore Infrastructures Limited, a Company incorporated under the Companies Act, 1956, having its registered office at Mulund Goregaon, Mulund (West) Mumbai. The Respondent is Bharat Oman Refineries Limited, which was merged to M/s Bharat Petroleum Corporation Limited with effect from 01.07.2022, having its registered office at Bharat Bhavan Ballard Estate, Mumbai. 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 coul....
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....as 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. 10. The learned Counsel for the Appellant submits that the application under Section 11 (6) of the 1996 Act was filed well within the period of limitation. To substantiate his contentions, reliance is placed upon the decision of this Court in Arif Azim Company Limited v. Aptech Limited (2024) 5 SCC 313, which held that the period for the purpose of filing application for appointment of arbitrator commences only upon issuance of a valid notice invoking the arbitration follow....
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....ues for consideration are:- (i) whether the court has power to appoint an arbitrator when the clause providing the arbitration mechanism has become bad in law pertaining to certain statutory amendments and (ii) whether the application under Section 11(6) of the Arbitration and Conciliation Act, 1996 filed by the Appellant is within the period of limitation. 16. It is pertinent to refer to the decision of this court in Perkins (supra), wherein a coordinate Bench of this Court while following the decision in TRF Limited v. Energo Engineering Projects Limited (2017) 8 SCC 377 categorically held that once the Chairman and Managing Director of the respondent therein became ineligible by the virtue of Section 12(5) read with the Seventh Schedule of the 1996 Act (as amended by Act 3 of 2016 w.e.f. 23.10.2015), the ineligibility also extends to power of nomination, thereby rendering any appointment made by him legally unsustainable. Consequently, this Court appointed an independent sole arbitrator holding that jurisdiction under Section 11(6) of the 1996 Act is not ousted merely because an appointment has already been made by the respondent if such appointment is ex fa....
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....ty in arbitration proceedings by virtue of Section 12(5) of the 1996 Act. It cannot be justified to literally interpret the clause in the contract in a manner or at the cost of the entire arbitration mechanism itself being abandoned. The arbitration agreement must be interpreted in a purposive manner, but not literally so as to enable the parties to pursue the intended dispute redressal mechanism of contract. Therefore, it cannot be said that non-operation of arbitration clause in GCC will result into forgoing of entire arbitration mechanism and rendering the Appellant disentitled for seeking appointment of arbitrator. The Appellant is, therefore, entitled to file application under section 11(6) of the 1996 Act for appointment of arbitrator and thereby the power is vested with the court to appoint an arbitrator upon filing of such application. 21. The next aspect which merits consideration is whether the application for appointment of arbitrator filed by the Appellant is within the period of limitation. It would be apposite to refer to the decision in Geo Miller and Company Private Limited v. Chairman, Rajasthan Vidyut Utpadan Nigam Limited6, where a three-Judge Bench of this co....
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....period during which this Court could have allowed the appellant's application for appointment of an arbitrator is 3 years from the date on which cause of action arose i.e. 8-2- 1986. Similarly, with respect to Arbitration Application No. 28/2003 relating to the work order dated 3-5-1985, the respondent has stated that final bill was handed over and became due on 10-8-1989. This has not been disputed by the appellant. Hence the limitation period ended on 10-8-1992. Since the appellant served notice for appointment of arbitrator in 2002, and requested the appointment of an arbitrator before a court only by the end of 2003, his claim is clearly barred by limitation. *** *** *** 24. In the present case, the appellant has not disputed the High Court's finding that the appellant itself had handed over the final bill to the respondent on 8-2-1983. Hence, the holding in Inder Singh Rekhi v. DDA [(1988) 2 SCC 338] will not apply, as in that case, the applicant's claim was delayed on account of the respondent's failure to finalise the bills. Therefore the right to apply in the present case accrued from the date on which the final bill was raised (see Union o....
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....0 till 28-2-2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. 5.2. Consequently, the balance period of limitation remaining as on 3-10-2021, if any, shall become available with effect from 1-3-2022. 5.3. In cases where the limitation would have expired during the period between 15-3-2020 till 28-2-2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 1-3-2022. In the event the actual balance period of limitation remaining, with effect from 1-3-2022 is greater than 90 days, that longer period shall apply. 5.4. It is further clarified that the period from 15-3- 2020 till 28-2-2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29-A of the Arbitration and Conciliation Act, 1996, Section 12-A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the co....