“37. Heard the parties. As stated above, at this stage, the Tribunal is proceeding on the basis of demurrer. Had this issue been answered after all evidence had been recorded, then this Tribunal may have been inclined to accept some of the submissions of the Respondents. But at this stage as this Issue is being decided on the basis of demurrer, the averments in the Statement of Claim have to be taken as correct. It is clear that Clause 5.2.1 and 5.3 give to the Claimant a right to extend the time for performance of the Conditions Precedent. Thus even though a notice may have been given it is still open to Claimant to extend time for performance of Condition Precedents. Once time is so extended then a fresh cause of action arises if again there is a breach. It is not possible to accept submission that in paragraph 21 the Claimant has only averred that it had extended time for payment. Such a submission is against the wording of the paragraph. In paragraph 21 Claimant have averred “The Respondents requested the Claimant to consider a settlement of the disputes between the parties and in the meantime extend time for fulfilling various commitments and desist from taking legal action. The Claimant agreed to extend time for compliance of the terms of SSA in accordance with Clause 5.3 and desist from exercising its remedies under the SSA while parties were exploring a settlement” (Emphasis supplied). The words “fulfilling various commitments” can by no stretch of imagination refer to right of Claimant to receive refund. The words “Agreed to extend time for compliance of the terms of SSA” cannot be read in isolation and have to be read in the context of the sentence stating that Respondents had requested for extension of time. Read as whole paragraph 21 makes it clear that Claimant is claiming that at the request of Respondents, Claimant extended time to perform the Condition Precedents. Thus even though a notice had been given under Clause 5.3, it was possible for the Claimant to thereafter extend time for performance of the Condition Precedent. Mr. Seksaria is right the right to take any legal action on the notice dated 14th February 2009 would expire in 2012 and Clause 15.3 would not enable Claimant to extend Limitation once it had expired. However within the tenure of the SSA Claimant could extend time for compliance and if Claimant has extended time for compliance then a fresh cause of action would arise and the Claimant could again exercise its right under Clause 5.3 when there is again a breach of the Condition Precedents. The Claimant has averred that it had extended time. At this stage this averment has to be accepted. As at this stage the proceeding are proceeding on the basis of demurrer. The statement of Claimant that it had extended time has to be accepted. It will therefore have to be held that now time only started running once the negotiations failed and there was again a breach of the SSA by the Respondents. This was, at the earlier in 2016.
