Allowed

Macawber Beekay Private Limited v. Bharat Heavy Electricals Limited

Karnataka HC7 Jul 2022CMP/341/2022

Case brief

AI extract

What is this about?

In a civil miscellaneous petition under Section 11(6) of the Arbitration Act, 1996, the Karnataka High Court held that the petitioner's claim was not time barred and appointed a former Judge of the Court as the sole arbitrator to adjudicate the dispute.

What did the court decide?

Appointment of Mr. Justice Raghavendra S. Chauhan as the sole Arbitrator to adjudicate the dispute.

Macawber Beekay Private Limited Vs Bharat Heavy Electricals… — Arbitration | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^TH DAY OF JULY 2022

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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CIVIL MISCELLANEOUS PETITION NO.341/2022

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BETWEEN :

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MACAWBER BEEKAY PRIVATE LIMITED BEEKAY HOUSE C 450-451 SECTOR 10, NOIDA 201301 (U P) REP BY AUTHORIZED SIGNATORY RAKESH KUMAR SINGH.

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ALSO

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MACAWBER BEEKAY PRIVATE LIMITED BEEKAY HOUSE, NO L 8, GREEN PARK EXTENSION NEW DELHI - 110 016.

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... PETITIONER

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(By SRI. P.K. BANSAL, ADVOCATE A/W SRI. BADRI VISHAL., ADVOCATE A/W SMT. DEEPTHI, ADVOCATE)

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AND :

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BHARAT HEAVY ELECTRICALS LIMITED INDUSTRIAL SYSTEM GROUP OPP IISC PROF. CNR RAO CIRCLE MALLESWARAM, BANGALORE - 560 012 REP BY DEPUTY GENERAL MANAGER.

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... RESPONDENT

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(By SRI.T.N.VISHWANATH., ADVOCATE)

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THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SEC.11(6) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT AN ARBITRATOR TO ADJUDICATE THE DISPUTE BETWEEN THE PARTIES IN TERMS OF CLAUSE 15.0 OF THE LOI NO. 77/08/0186/AK DATED 08/01/2009 AT ANNEXURE-A AND CLAUSE 15.0 OF PURCHASE ORDER DATED 16/04/2009 AT ANNEXURE- B, RESPECTIVELY.

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THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The respondent, after issuance of Letter of Intent dated 08.01.2009 with certain terms including the term on arbitration, has issued Purchase Order dated 16.4.2009 for supply and construction. This Purchase Order, even according to the respondent, is amended from time to time and last of such amendment is on 28.2.2017. This amendment relates to erection and commission of certain units as mentioned therein and the extended date for completion of such units. The petitioner contends that the contracted Work was delayed beyond the agreed time-line, and the respondent, as it is obvious in paragraph 18 of the

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Statement of Objection, is categorical that the petitioner has carried out such work until 21.01.2019.

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The petitioner, who has issued legal notice

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dated 11.8.2021 for commencement of the arbitral tribunal raising certain claims which includes damages for the loss suffered under different sale deeds/nonpayment, has suggested two former Judges of the Delhi High Court from whom the respondent could have chosen anyone of them as a sole arbitrator. The respondent has issued reply via email dated 28.8.2021 calling for certain discussion with the petitioner responding to such email stating that it could not act upon the legal notice within 30 days in anticipation of resolution of the claims.

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Sri. P.K. Bansal, the learned counsel for the

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petitioner, argues in support of petition relying upon the aforesaid circumstances for appointment of a sole

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arbitrator, and the learned counsel for the respondent submits that the records would indicate that the claim is barred by law and therefore, the petition must be rejected. The learned counsel relying upon the decision of the Hon'ble Supreme Court in Bharat Sanchar Nigam Ltd. And Another Vs. M/s.Nortel Networks India Pvt. Ltd. reported in AIR 2021 SC 2849 submits that unless it is pleaded and demonstrated that there is an extension of limitation period, the petition under Section 11 of the Arbitration and Conciliation Act, 1996 must be rejected. In fact, the learned counsel submits that the Final Bill has been paid and therefore, the claim for damages is ex facie barred by limitation

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There are serious disputes on the question of delay in execution of the Work, and the question of delay, if any, must be decided as question of fact. This Court would opine that it cannot, at this stage, be concluded that the petitioner's claim for damages and

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for other monies in terms of the legal notice dated 11.8.2021 is time barred, especially with the respondent itself stating that the petitioner continued to execute the work until 21.1.2019.

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With the arbitration agreement not being disputed, this Court is of the considered view that leaving all the questions open to be decided in the arbitration before the arbitral tribunal, the sole arbitrator must be appointed and further, in the facts and circumstances of the case, this Court is also of the considered view that his lordship, Mr. Justice Raghavendra S. Chauhan, a former Judge of this Court, must be appointed as the sole arbitrator to enter reference of the dispute. As such, the following:

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ORDER

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a] The petition is allowed;

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[b] Sri Justice Raghvendra S. Chauhan, former Judge of this Court, Add: C-148, Dayanand Marg, Tilak Nagar, Jaipur302004, Rajasthan, is appointed as the sole Arbitrator to enter reference of the dispute between the petitioner and the respondents and conduct the proceeding at the Arbitration and Conciliation Centre (Domestic and International), Bengaluru according to the Rules governing the Arbitration and Conciliation Centre

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(Domestic and International), Bengaluru;

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[c] The Registry is directed to communicate this order to the Arbitration and Conciliation Centre (Domestic and International), Bengaluru, and Shri Justice Raghvendra S. Chauhan, former Judge of this Court, Add: C-148, Dayanand Marg,

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Tilak Nagar, Jaipur-302004, Rajasthan, as required under the Appointment of Arbitrators by the Chief Justice of Karnataka High Court Scheme, 1996.

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SD/JUDGE

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SA/Ct:sr

Macawber Beekay Private Limited v. Bharat Heavy Electricals Limited

Case brief

What is this about?

What did the court decide?

Macawber Beekay Private Limited v. Bharat Heavy Electricals Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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