First, in Praveen
Enterprises (supra) the Court has carved out an
exception and, while carving out an exception, has clearly
stated that the limitation for “such counter claim” should
be computed as on the “date of service of notice” of “such
claim on the claimant” and not on the date of final
counter claim.
We are absolutely conscious that a
judgment is not to be read as a statute but to understand
the correct ratio stated in the case it is necessary to
appreciate the repetitive use of the words. That apart, if
the counter claim filed after the prescribed period of
8
(2009) 2 SCC 337
limitation before the arbitrator is saved in entirety solely
on the ground that a party had vaguely stated that it
would be claiming liquidated damages, it would not
attract the conceptual exception carved out in Praveen
Enterprises (supra). In fact, it would be contrary to the
law laid down not only in the said case, but also to the
basic principle that a time barred claim cannot be
asserted after the prescribed period of limitation.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2073
OF 2014
(Arising out of SLP (Civil) No. 30015 of 2013)
Voltas Limited
... Appellant
Versus
Rolta India Limited
...Respondent
WITH
CIVIL APPEAL NO. 2076
OF 2014
(Arising out of SLP (Civil) No. 31195 of 2013)
Dipak Misra, J.
Citation;(2014) 4 SCC 516
Leave granted in both the Special Leave Petitions.
2. Regard being had to the similitude of controversy in both
the appeals they were heard together and are disposed of
by a common judgment. Be it noted, the Division Bench
of the High Court of Judicature at Bombay, by two
separate judgments and orders passed on 16.8.2013 in
Appeals Nos. 7 of 2013 and 8 of 2013 has set aside the
judgment and order dated 1.10.2012 passed by the
learned single Judge in Arbitration Petition (L) Nos. 1239
of 2012 and 1240 of 2012 respectively as a consequence
of which two interim awards passed by the learned
Arbitrator on 26.7.2012 in respect of two contracts
between the same parties rejecting the counter claim of
the respondent-herein have been annulled. For the sake
of clarity and convenience we shall state the facts from
Civil Appeal arising out of Special Leave Petition (C) No.
30015 of 2013, for the Division Bench has observed that
the Appeal No. 7 of 2013 had emanated from the disputes
which arose in respect of civil construction agreement
dated 2.2.2001 and in Appeal No. 8 of 2013 the disputes
related to agreement dated 8.1.2003 for air-conditioning
of the two buildings to be constructed for the appellant
therein and no separate submissions were advanced
before it and the position was the same before the learned
single Judge.
3. The
expose’
of
facts
are
that
the
appellant
and
respondent entered into a civil construction contract for
construction of two buildings known as Rolta Bhawan II
(RB-II) and Rolta Bhawan III (RB-II) and also for
modification of building Rolta Bhawan I(RB-I) previously
constructed by the respondent.
As certain disputes
arose, on 3.12.2004 the respondent terminated the
contract.
After certain correspondences between the
parties pertaining to the termination of the contract the
appellant
by
letter
dated
29.3.2006
invoked
the
arbitration clause in respect of its claims against the
respondent.
As the respondent failed to appoint an
arbitrator, it filed an application under Section 11 of the
Arbitration and Conciliation Act, 1996 (for short “the
Act”) before the High Court of Bombay for appointment of
arbitrator and the designated Judge vide order dated
19.11.2010 appointed the sole arbitrator.
4. After the controversy came in seisin before the learned
Arbitrator, he issued certain directions and, as the facts
would unfurl, the appellant filed its statement of claim on
13.4.2011 claiming a sum of Rs.23,31,62,429.77 together
with interest at the rate of 15% per annum from the
respondent.
The respondent, after filing its defence on
24.8.2011, filed the counter claim of Rs.333,73,35,026/-
together with interest at the rate of 18% per annum from
the date of filing till payment/realization thereof. In the
counter claim the respondent justified the termination of
the agreement and contended that it was entitled to
damages for breach of contract. In the counter claim the
notice dated 17.4.2006 sent by the respondent detailing
its counter claim to the appellant was referred to.
5. After the counter claim was lodged, the appellant-herein
filed its objections about the tenability of the counter
claim stating that the same was not maintainable and
was also barred by limitation. The learned Arbitrator on
7.1.2012 framed two issues regarding the tenability and
limitation of the counter claim as preliminary issues.
They are: -
“(i) Whether the counter claim, or a substantial
part thereof, is barred by the law of limitation?
(ii) Whether the counter claim is not maintainable
and beyond the scope of reference?”
6. After adumbrating to the facts the learned Arbitrator
came to hold that the limitation for making a counter
claim is required to be asserted with reference to the date
on which the cause of action arises and the date on
which the counter claim is filed.
After so opining the
learned Arbitrator recorded as follows: -
“The respondent has been vigilant and assertive
of its legal rights right from 3 rd December 2004
on which date the Contract was terminated. The
assertions in the letters dated 27th April 2005 and
29th
March
2006
show
unmistakable
consciousness of its rights on the part of the
Respondent. The last letter dated 29th March
2006 is the notice of the Advocates of the
Respondent asserting its right to invoke
arbitration. The Tribunal is of the view that
cause of action for the Counter-claim which must
be treated as an independent action to be
instituted, really arose latest by 29 th March 2008,
if not earlier it is clear that the Counter claim is
filed only on 26th September, 2011 and as such it
is beyond the period of limitation of three years.”
It may be noted here that the learned Arbitrator,
however,
overruled the objection
with regard to the
maintainability of the counter claim being beyond the scope
of reference.
7. After the interim award was passed by the learned
Arbitrator, the respondent filed an application under
Section 34 of the Act for setting aside the decision of the
learned Arbitrator rejecting the counter claims made by it
on the ground of limitation.
The learned single Judge,
after adverting to the facts in detail and the contentions
raised by the learned counsel for the parties, referred to
certain authorities, namely, Ispat Industries Limited v.
Shipping Corporation of India Limited1 and State of
Goa v. Praveen Enterprises2, and came to hold that the
arbitral
proceedings
in
respect
of
those
disputes
commenced on the date on which the request for the said
disputes to be referred to arbitration was received by the
respondent, and further that only such disputes which
were referred to in the notice invoking arbitration
agreement with a request to refer the same to arbitration,
the arbitral proceedings commenced and it would not
apply to the counter claim. Thereafter the learned single
Judge proceeded to state as follows: -
“When the notice was given by the respondent on
29th March, 2006, the said notice was only in
respect of the disputes having arisen between the
parties due to refusal of claims made by the
petitioner. On the date of issuance of such
notice, the petitioner had not even asserted its
claim. After issuance of such notice on 29 th
March, 2006, the petitioner by its letter dated
17th April, 2006 had asserted its claim for the
first time. The dispute in respect of the counter
claim raised when the petitioner did not pay the
Arbitration Petition No. 570 of 2001 decided on 4.12.2001.
(2012) 12 SCC 581
said amount as demanded. Such disputes thus
did not exist when the notice invoking arbitration
agreement was given by the respondent on 29 th
March, 2006.
In my view, the arbitral
proceedings therefore, cannot be said to have
commenced in respect of the counter claim when
the notice was given by the respondent on 29 th
March, 2006. The counter claim was admittedly
filed on 26th September, 2011 which was made
beyond the period of limitation. The arbitral
proceedings commenced in respect of the counter
claim only when the said counter claim was
lodged by the petitioner on 26th September, 2011.
Even if the date of refusal on the part of the
respondent, to pay the amount as demanded by
the petitioner by its notice dated 17 th April, 2006
is considered as commencement of dispute, even
in such case on the date of filing the counter
claim i.e. 26th September, 2011, the counter
claim was barred by law of limitation. In my
view, thus the tribunal was justified in rejecting
the counter claim filed by the petitioner as time
barred.”
8. After so stating the learned single Judge held that the
opinion expressed by the learned Arbitrator was not
perverse and based on correct appreciation of documents
and was resultant of a plausible interpretation and
accordingly rejected the application preferred under
Section 34 of the Act.
9. Being dissatisfied, the respondent-herein preferred an
appeal before the Division Bench which chronologically
referred to the correspondences made between the
Page 7
8
parties, the reasoning ascribed by the learned Arbitrator,
the submissions propounded before it, the principles
stated in Oil and Natural Gas Corporation Ltd. v. Saw
Pipes Ltd.3 as regards the jurisdiction of the Court while
dealing with an application under Section 34 of the Act,
the concept of limitation as has been explained in
Praveen Enterprises (supra), the demand made by the
appellant therein by letter dated 17.4.2006 quantifying a
sum of Rs.68.63 crores, exclusion of period between
3.5.2006
to
19.11.2010
during
which
period
the
application under Section 11 of the Act was pending
before the High Court and on that foundation, in the
ultimate eventuate, came to hold that the counter claim
filed on 26.9.2011 was within limitation. The aforesaid
view obliged the Division Bench to allow the appeal, set
aside the judgment and order passed by the learned
single Judge as a consequence thereof the rejection of the
counter claim by the learned Arbitrator stood overturned.
Be it noted, rest of the interim award of the learned
Arbitrator was not disturbed.
(2003) 5 SCC 705
10.
Assailing the legal substantiality of the view expressed
by the Division Bench, Mr. K.K. Venugopal, learned
senior counsel appearing for the appellant, has raised the
following contentions: -
(i)
Existence of dispute is fundamentally essential for a
controversy to be arbitrated upon and in the case at
hand there being no dispute raised by the respondent
as warranted in law, the counter claim put forth before
the learned Arbitrator deserved to be thrown at the
threshold and the High Court would have been well
advised to do so.
(ii)
The limitation for a counter claim has to be strictly in
accordance with Section 43(1) of the Act read with
Section 3(2)(b) of the Limitation Act, 1963 and any
deviation therefrom is required to be authorized by any
other provision of law. The only other provision of law
which can depart from Section 43(1) of the Act read
with Section 3(2)(b) of the Limitation Act, is the
provision contained in Section 21 of the Act, where the
respondent to the claimant’s claim invokes arbitration
in regard to specific or particular disputes and further
makes a request for the said disputes to be referred to
arbitration and in that event alone, the date of filing of
the counter claim would not be the relevant date but
the date of making such request for arbitration would
be the date for computing limitation.
The Division
Bench has not kept itself alive to the requisite twin
tests and has erroneously ruled that the counter claim
as filed by the respondent is not barred by limitation.
(iii) The principle stated in Praveen Enterprises’s case is
not
applicable
to
the
present
case
because
the
correspondences made by the respondent, including the
letter dated 17.4.2006, show that there had neither
been any enumeration of specific claims nor invocation
of the arbitration clause but merely computation of
certain claims, though for application of the exception
as carved out in Praveen Enterprises (supra), both the
conditions precedent, namely, making out a specific
claim and invocation of arbitration are to be satisfied.
(iv) The exclusion of the period during pendency of the
application under Section 11 of the Act, as has been
held by the Division Bench, is wholly contrary to the
principle laid down in paragraphs 20 and 32 in
Praveen Enterprises (supra).
(v)
Assuming the principle stated in Praveen Enterprises
(supra) is made applicable, the claims asserted by the
respondent in its letter dated 17.4.2006 could only be
saved
being
not
hit
by
limitation
and
not
the
exaggerated counter claim that has been filed before the
learned Arbitrator.
(vi) The Division Bench completely erred in interfering with
the interim award in exercise of power under Section 34
of the Act, though the principle stated in Saw Pipes
Ltd. (supra) is not attracted and further that the
recording of finding that the award passed by the
learned Arbitrator suffers from perversity of approach is
not acceptable inasmuch as a possible and plausible
interpretation of the contract and documents has been
made which is within the domain of the learned
Page 11
12
Arbitrator as has been stated in Rashtriya Ispat
Nigam Limited v. Dewan Chand Ram Saran4.
11.
Mr. R.F. Nariman, learned senior counsel appearing for
the respondent, defending the impugned judgment, has
proponed the following: -
(a) The
documents
brought
on
record
demonstrably
establish that dispute existed between the parties as
regards the counter claim and hence, the submission
raised on behalf of the appellant on that score is sans
substance.
(b) The Division Bench has rightly come to hold that the
counter claim filed by the respondent-herein was within
time on the basis of the law laid down in Praveen
Enterprises (supra) inasmuch as the date of filing of the
counter claim has to relate back to the date of claim
made by the respondent and the correspondences
between the parties do clearly show that the respondent
had raised its claim and also sought for arbitration in a
legally accepted manner.
4
(2012) 5 SCC 306
(c) The alternative submission that the counter claim has to
be confined to the amount quantified in the letter dated
17.4.2006 is unacceptable in law, for in Praveen
Enterprises (supra) it has been held that the statement
of claim need not be restricted to the claims in the notice
and on that base it can safely be concluded that the said
proposition holds good for counter claims as well. That
apart, the principle also gets support from what has been
laid down in McDermott International Inc. v. Burn
Standard Co. Ltd. and others5.
12.
First, we shall address to the submissions pertaining
to existence and raising of dispute as regards the counter
claim. We are required to deal with the same in the case
at hand since Mr. Venugopal, learned senior counsel, has
urged that if no dispute was raised at any point of time, it
could not have been raised before the learned Arbitrator
as it would be clearly hit by limitation. Learned senior
counsel has placed reliance on Major (Retd.) Inder
Singh Rekhi v. Delhi Development Authority6 and
Jammu and Kashmir State Forest Corporation v.
5
6
(2006) 11 SCC 181
(1988) 2 SCC 338
Abdul
Karim
Wani
and
others7,
to
bolster
the
submission that in the case at hand the disputes as
regards the counter claim really had not arisen, for mere
assertions and denials do not constitute a dispute
capable of reference to arbitration and hence, not to be
entertained when it is dead or stale.
13.
In Major (Retd.) Inder Singh Rekhi (supra) the High
Court had rejected the petition preferred under Section
20 of Arbitration Act, 1940 as barred by limitation. The
two-Judge Bench referred to Section 20 of the 1940 Act
and opined that in order to be entitled to order of
reference under Section 20, it is necessary that there
should be an arbitration agreement and secondly, dispute
must arise to which the agreement applied. In the said
case, there had been an assertion of claim of the
appellant and silence as well as refusal in respect of the
same by the respondent.
The Court observed that a
dispute had arisen regarding non-payment of the alleged
dues to the appellant and, in that context, observed thus:
-
7
(1989) 2 SCC 701
“A dispute arises where there is a claim and a
denial and repudiation of the claim.
The
existence of dispute is essential for appointment
of an arbitrator under Section 8 or a reference
under Section 20 of the Act.
See Law of
Arbitration by R.S. Bachawat, first edition, page
354. There should be dispute and there can only
be a dispute when a claim is asserted by one
party and denied by the other on whatever
grounds. Mere failure or inaction to pay does not
lead to the inference of the existence of dispute.
Dispute entails a positive element and assertion
of denying, not merely inaction to accede to a
claim or a request. Whether in a particular case
a dispute has arisen or not has to be found out
from the facts and circumstances of the case.”
14.
In Abdul Karim Wani and others (supra) the
question arose whether the dispute mentioned in the
contractor’s application could have been referred to the
arbitration at all.
The majority came to hold that the
claim raised by the plaintiff in his application was not
covered by the arbitration clause and, therefore, was not
permissible to be referred for a decision to the arbitrator.
Be it noted, in the said case, the work under the contract
had already been executed without any dispute.
majority
also
observed
that
in
the
absence
The
of
a
repudiation by the Corporation of the respondent’s right
to be considered, if and when occasion arises, no dispute
could be referred for arbitration. It further ruled that in
order that there may be a reference to arbitration,
existence of a dispute is essential and the dispute to be
referred to arbitration must arise under the arbitration
agreement.
15.
The principles laid down in the aforesaid cases were
under the 1940 Act at the stage of appointment of
arbitrator. In the case at hand, though we are dealing
with a lis under the 1996 Act, yet we are to deal with the
said facet as the learned Arbitrator has passed an interim
award as regards the sustenance of the counter claim. In
this
regard,
it
is
necessary
to
refer
to
the
correspondences entered into between the parties and to
appreciate the effect and impact of such communications.
By letter dated 1.3.2005 the appellant, while referring to
the letter dated 3.12.2004 issued by the respondent
terminating the contract on the ground of alleged delay
and default in completion of the project, without
prejudice had made a request for payment of final bill in
full and settle the claim made therein at the earliest. It
was also suggested therein that if the respondent needed
any additional information or material in support of the
claim put forth, the appellant would furnish the same.
On 18.3.2005 the respondent communicated to the
appellant through its counsel that it would compute its
losses, damages, costs, charges, expenses, etc. after the
building work was over and claim the same from the
appellant.
The appellant vide letter dated 7.4.2005,
through its counsel, intimated the respondent that it was
not liable to pay any alleged losses, damages, costs,
charges
and
expenses,
allegedly
suffered
by
the
respondent. On 27.4.2005 by another communication an
assertion was made about the losses suffered by the
respondent. The respondent asseverated that it was not
liable to pay to the appellant any compensation and
damages or other amounts as claimed in the letter dated
1.3.2005 to the respondent. In fact, the respondent was
compelled to terminate the civil contractor as per the
recommendation
of the Architects,
M/s. Master &
Associates, and the respondent had suffered huge losses
and damages and had incurred heavy costs, charges and
expenses for which the appellant was solely respondible.
It was also mentioned in the letter that the respondent
reserved its right to take appropriate steps against the
appellant as per the agreement entered into between the
parties as per law.
As the factual exposition would
unfurl, on 29.3.2006 the appellant, referring to its earlier
communications dated 14.4.2004, 23.4.2004, 24.5.2004,
18.6.2004,
appointment
13.7.2004
of
and
1.3.2005,
an arbitrator.
On
claimed
for
17.4.2006 the
respondent specified the claims under various heads and
also claimed payment to be made within seven days
failing which it will invoke the arbitration clause. To the
said communication and another communication dated
21.4.2006 we shall refer to at a later stage while dealing
with the other facet of submission. It may be noted here
that on 9.5.2006 the appellant, referring to letter dated
17.4.2006 whereby the respondent had raised its claims,
stated as follows: -
“Our clients deny that the claim made against
you is false and frivolous. Our clients deny that
any amount is due to you for the alleged breach
of the aforesaid contract. Our clients deny that
they have committed any breach of the aforesaid
contract.
In view of what is stated hereinabove, our clients
deny that they are liable to pay to you a sum of
Rs.68,63,72,743.08 or any other sum.”
16.
Thus, the correspondences between the parties make it
vivid that the claims made by the respondent were denied
by the appellant on many a ground and, therefore, it
would be inappropriate to say that there was inaction or
mere denial.
Therefore, in the obtaining fact situation,
the principles stated in Major (Retd.) Inder Singh Rekhi
(supra) and Abdul Karim Wani and others (supra) are
not applicable.
17.
The next aspect that has been highlighted by Mr.
Venugopal is that the respondent had never, in the true
sense of the term, invoked arbitration by appropriately
putting forth specified claims.
In this context, we may
refer to the letter dated 29.3.2006 which would show that
the appellant had asserted that the disputes and
differences had arisen between the parties to the
agreement and invoked the arbitration clause calling
upon the respondent to appoint an independent unbiased
arbitrator within 30 days from the receipt of the said
notice, failing which they would be constrained to
approach the designated Judge of the Chief Justice of
Bombay High Court for appointment of an arbitrator
under Section 11 of the Act. The respondent, vide letter
dated 17.4.2006, sent through its counsel while stating
that it was surprised to receive the demand made by the
appellant with regard to the final R.A. bill dated
21.12.2004, clearly stated that the earlier letter dated
1.3.2005 had already been replied to vide letter dated
18.3.2005.
In the said letter it was mentioned by the
respondent that it had crystallized its claim amounting to
Rs.68,63,72,743.08 and, be it noted, the said claim was
made on various heads by the respondent. Reproduction
of part of the said letter would be apposite: -
“The final R.A. Bill sent by you is incorrect in
many respects; one of them being that you have
made claims based on works actually not done by
you Nothing is due and payable by us to you
against your final R.A. Bill. We call upon you to
pay
to
us
the
aforesaid
sum
of
Rs.68,63,72,743.08 within seven days of the
receipt of this letter, failing which you will be
liable to pay interest at the rate of 18% p.a. on
expiry of seven days after receipt of this letter by
you, till payment and/or realization. Please note
that if the aforesaid payment is not made within
seven days of the receipt of this letter, we will
invoke the arbitration clause of the civil contract
and refer the disputes to arbitration.”
18.
In this regard reference to letter dated 21.4.2006
written by the appellant is seemly. The relevant part of
the said letter is as follows: -
“We are instructed to inform you that our client
was out of India in connection with the business
tour and returned to India on 19th April, 2006.
Our client thereafter has been extremely busy
with the work of the Company. He has seen your
letter dated 29th March, 2006.
Please, therefore, ask your clients to note
that our client will appoint an Arbitrator within
30 days from the date of his return to India.”
19.
These two communications make it clear that the
respondent had crystallized the claims on various heads
by letter dated 17.4.2006 and the appellant had agreed to
appoint an arbitrator within thirty days. The heads that
have been mentioned in the letter dated 17.4.2006
pertained to liquidated damages for delay in performance,
cost of repairs and rework which had to be done by the
respondent, differential cost of the works left over by the
appellant and was completed by the respondent through
other agencies, cost of direct consequential damages to
the respondent due to defect in the work done by the
appellant, cost of consultancy fees and other expenses,
loss of profit for four years based on revenue generated
per employee, etc. and outstanding mobilization advance
remaining with the appellant.
The total sum as
mentioned in the letter was Rs.74,78,34,921.54.
From
the said amount monies retained by the respondent and
monies received by the respondent as per the contract,
i.e., Rs.6,14,62,178.46 were reduced.
Needless to
emphasize, the validity of the claims had to be addressed
by the learned Arbitrator but the fact remains that the
respondent had raised the claims by giving heads. Thus,
there can be no scintilla of doubt that the respondent had
particularized
or
specified
its
claims
and
sought
arbitration for the same.
20.
Keeping in view the aforesaid factual scenario we shall
now proceed to appreciate what has been stated by this
Court in Praveen Enterprises (supra). In the said case,
the respondent therein had raised certain claims and
given a notice to the appellant-therein to appoint an
arbitrator in terms of the arbitration clause.
As the
appellant did not do so, the respondent filed an
application under Section 11 of the Act and an arbitrator
was appointed. The respondent filed its claim statement
before the arbitrator and the learned arbitrator passed an
award.
In regard to the counter claims made by the
appellant, the arbitrator awarded certain sum without
any interest. An application under Section 34 of the Act
was filed by the respondent challenging the award for
rejection of its other claims and award made on a
particular item of the counter claim.
The civil court
disposed of the matter upholding the award in respect of
the claims of the respondent but accepted the objection
raised by it in regard to the award made on the counter
claim opining that the arbitrator could not have enlarged
the scope of the reference and entertain either fresh
claims by the claimants or counter claims from the
respondent.
The said judgment came to be assailed
before the High Court which dismissed the appeal by
holding that the counter claims were bad in law as they
were never placed before the court by the appellant in the
proceeding under Section 11 of the Act and they were not
referred to by the court to arbitration and, therefore, the
arbitrator had no jurisdiction to entertain the matter.
21.
This Court posed two questions, namely, whether the
respondent in an arbitration proceeding is precluded
from making a counter claim, unless (a) it had served a
notice upon the claimant requesting that the disputes
relating to that counter claim be referred to arbitration
and
the
claimant
had
concurred
in
referring
the
counterclaim to the same arbitrator; and/or (b) it had set
out the said counterclaim in its reply statement to the
application under Section 11 of the Act and the Chief
Justice or his designate refers such counter claim also to
arbitration. Thereafter, the Court referred to the concept
of “reference to arbitration” and, analyzing the anatomy
of Sections 21 and 43 of the Act and Section 3 of the
Limitation Act, 1963, opined thus: -
“Section 3 of the Limitation Act, 1963 specifies
the date of institution for suit, but does not
specify the date of “institution” for arbitration
proceedings. Section 21 of the Act supplies the
omission. But for Section 21 there would be
considerable confusion as to what would be the
date of “institution” in regard to the arbitration
proceedings. It will be possible for the respondent
in an arbitration to argue that the limitation has
to be calculated as on the date on which
statement of claim was filed, or the date on which
the arbitrator entered upon the reference, or the
date on which the arbitrator was appointed by
the court, or the date on which the application
Page 24
25
was filed under Section 11 of the Act. In view of
Section 21 of the Act providing that the
arbitration proceedings shall be deemed to
commence on the date on which “a request for
that dispute to be referred to arbitration is
received by the respondent” the said confusion is
cleared. Therefore, the purpose of Section 21 of
the Act is to determine the date of
commencement of the arbitration proceedings,
relevant mainly for deciding whether the claims
of the claimant are barred by limitation or not.”
22.
Thereafter, addressing the issue pertaining to counter
claims, the Court observed as follows: -
“20. As far as counterclaims are concerned, there
is no room for ambiguity in regard to the relevant
date for determining the limitation. Section 3(2)
(b) of the Limitation Act, 1963 provides that in
regard to a counterclaim in suits, the date on
which the counterclaim is made in court shall be
deemed to be the date of institution of the
counterclaim. As the Limitation Act, 1963 is made
applicable to arbitrations, in the case of a
counterclaim by a respondent in an arbitral
proceeding, the date on which the counterclaim is
made before the arbitrator will be the date of
“institution” insofar as counterclaim is concerned.
There is, therefore, no need to provide a date of
“commencement” as in the case of claims of a
claimant. Section 21 of the Act is therefore not
relevant for counterclaims. There is however one
exception. Where the respondent against whom a
claim is made, had also made a claim against the
claimant and sought arbitration by serving a
notice to the claimant but subsequently raises that
claim as a counterclaim in the arbitration
proceedings initiated by the claimant, instead of
filing a separate application under Section 11 of
the Act, the limitation for such counterclaim should
be computed, as on the date of service of notice of
such claim on the claimant and not on the date of
filing of the counterclaim.”
[Italics is ours]
23.
Mr. R.F. Nariman, learned senior counsel appearing for
the
respondent,
submitted
that
the
case
of
the
respondent comes within that exception because it had
raised its claims on various dates and crystallized it by
letter dated 17.4.2006 and had sought arbitration also.
It is his submission that the learned single Judge had
incorrectly understood the exception carved out in the
aforesaid case and has opined that the date of filing of
the counter claims, i.e., 26.9.2011 is the pertinent date.
It is urged by him that the Division Bench has correctly
determined the date to be 17.4.2006.
Mr. Venugopal,
learned senior counsel, has disputed the said position by
relying upon Section 3 of the Limitation Act which
stipulates the limitation to be mandatory.
24.
On a careful reading of the verdict in Praveen
Enterprises (supra), we find that the two-Judge Bench,
after referring to, as we have stated hereinbefore,
Sections 21 and 43 of the Act and Section 3 of the
Limitation Act has opined, regard being had to the
language employed in Section 21, that an exception has
to be carved out.
It saves the limitation for filing a
counter claim if a respondent against whom a claim has
been made satisfies the twin test, namely, he had made a
claim against the claimant and sought arbitration by
serving a notice to the claimant.
In our considered
opinion the said exception squarely applies to the case at
hand inasmuch as the appellant had raised the counter
claim and sought arbitration by expressing its intention
on number of occasions. That apart, it is also perceptible
that the appellant had assured for appointment of an
arbitrator.
Thus, the counter claim was instituted on
17.4.2006 and hence, the irresistible conclusion is that it
is within limitation.
25.
Presently
to
the
alternative
submission
of
Mr.
Venugopal, learned senior counsel for the appellant.
It
basically pertains to the nature, scope and gamut of
applicability of the exception carved out in Praveen
Enterprises (supra) for the purpose of saving a counter
claim being barred by limitation.
counsel
would
submit
that
the
The learned senior
respondent
had
crystallized
its
claims
by
letter
dated
17.4.2006
amounting to Rs.68,63,72,743.08 whereas in the counter
claim dated 26.9.2011 filed before the learned Arbitrator
amounts to Rs.333,73,35,026/- which is impermissible.
In essence, the submission of Mr. Venugopal is that the
claims which were not raised in the letter dated
17.4.2006 have to be treated as being barred by
limitation. Mr. R.F. Nariman, learned senior counsel for
the
respondent,
on
the
contrary,
has
referred
to
paragraph 11 of the Praveen Enterprises (supra) to
buttress his submission that when all the disputes are
referred to the arbitrator, he has the jurisdiction to decide
all the disputes, i.e., both the claims and counter claims.
That apart, the respondent had reserved its rights to
quantify the claim.
In this regard, he has also drawn
inspiration from McDermott International Inc. (supra)
wherein this Court has stated that while claiming
damages, the amount therefor is not required to be
quantified, for quantification of a claim is merely a matter
of proof.
Mr. Nariman has also commended us to the
decision in Bharat Sanchar Nigam Limited and
another v. Motorola India Private Limited8 wherein it
has been ruled that the question of holding a person
liable for liquidated damages and the question of
quantifying the amount to be paid by way of liquidated
damages are entirely different.
Fixing of liability is
primary while the quantification is secondary to it.
26.
In our considered opinion, the aforesaid decisions do
not render any assistance to the proposition canvassed
by the learned senior counsel for the respondent. We are
inclined to think so on two counts.
First, in Praveen
Enterprises (supra) the Court has carved out an
exception and, while carving out an exception, has clearly
stated that the limitation for “such counter claim” should
be computed as on the “date of service of notice” of “such
claim on the claimant” and not on the date of final
counter claim.
We are absolutely conscious that a
judgment is not to be read as a statute but to understand
the correct ratio stated in the case it is necessary to
appreciate the repetitive use of the words. That apart, if
the counter claim filed after the prescribed period of
8
(2009) 2 SCC 337
limitation before the arbitrator is saved in entirety solely
on the ground that a party had vaguely stated that it
would be claiming liquidated damages, it would not
attract the conceptual exception carved out in Praveen
Enterprises (supra). In fact, it would be contrary to the
law laid down not only in the said case, but also to the
basic principle that a time barred claim cannot be
asserted after the prescribed period of limitation.
27.
Mr.
Nariman,
learned
senior
counsel,
has
also
contended that the counter claims filed before the learned
Arbitrator is an elaboration of the amount stated in the
notice and, in fact, it is an amendment of the claim of the
respondent which deserved to be dealt with by the
learned Arbitrator.
In this context, we may refer with
profit to the ruling in K. Raheja Construcitons Ltd. and
another v. Alliance Ministeries and others9 wherein
the plaintiff had filed a suit for permanent injunction and
sought an amendment for grant of relief of specific
performance. The said prayer was rejected by the learned
trial court.
9
A contention was canvassed that the
1995 Supp (3) SCC 17
appellant had not come forward with new plea and, in
fact, there were material allegations in the plaint to
sustain the amendment of the plaint.
The Court
observed that having allowed the period of seven years to
elapse from the date of filing the suit, and the period of
limitation being three years under Article 54 of the
Schedule to the Limitation Act, 1963, any amendment on
the grounds set out, would defeat the valuable right of
limitation accruing to the respondent. The said principle
has been reiterated in South Konkan Distilleries and
another v. Prabhakar Gajanan Naik and others10 and
Van Vibhag Karamchari Griha Nirman Sahkari
Sanstha Maryadit (Registered) v. Ramesh Chander
and others11.
28.
In
Revajeetu
Builders
and
Developers
v.
Narayanaswamy and sons and others12, while laying
down
some
basic
principles
for
considering
the
amendment, the Court has stated that as a general rule
the court should decline amendments if a fresh suit on
10
(2008) 14 SCC 632
(2010) 14 SCC 596
12
(2009) 10 SCC 84
11
the amended claims would be barred by limitation on the
date of application.
29.
In the present case, when it is absolutely clear that the
counter claim in respect of the enhanced sum is totally
barred by limitation and is not saved by exception carved
out by the principle stated in Praveen Enterprises
(supra), we are unable to agree with the view of the
Division Bench of the High Court that the counter claim,
as a whole, is not barred by limitation. Thus analysed,
the counter claim relating to the appeal which deals with
civil contracts shall be restricted to the amount stated in
the letter dated 17.4.2006, i.e., Rs.68,63,72,178.08, and
as
far
as
the
air-conditioning
other
contract,
appeal
the
which
quantum
pertains
shall
to
stand
restricted to as specified in the letter dated 21.3.2006,
i.e., Rs.19,99,728.58.
30.
At this juncture, we may, for the sake of completeness,
deal with the justifiability of the interference by the
Division Bench in the award passed by the learned
Arbitrator. It has been urged by Mr. Venugopal, learned
senior counsel for the appellant, that the view expressed
by the learned Arbitrator being a plausible interpretation
of the contract the same did not warrant interference.
We have already analyzed at length how the interim
award is indefensible as there has been incorrect and
inapposite appreciation of the proposition of law set out
in Praveen Enterprises’s case.
In Rashtriya Ispat
Nigam Limited (supra) this Court has opined that the
learned Arbitrator had placed a possible interpretation on
clause 9.3 of the contract involved therein and hence, the
interference was exceptionable. In the present case, the
factual matrix and the controversy that have emanated
are absolutely different and hence, the principle stated in
the
said
authority
is
not
applicable.
Thus,
we
unhesitatingly repel the submission of the learned senior
counsel for the appellant that the award passed by the
learned Arbitrator did not call for any interference.
31.
Consequently, both the appeals are allowed in part,
the judgment of the Division Bench in Appeals Nos. 7 of
2013 and 8 of 2013 is modified and the interim award
passed by learned Arbitrator as regards rejection of the
counter claims in toto stands nullified.
The learned
Arbitrator shall now proceed to deal with the counter
claims, as has been indicated hereinabove by us.
Needless to say, we have not expressed any opinion on
the merits of the claims or the counter claims put forth
by the parties before the learned Arbitrator. The parties
shall bear their respective costs.
.............................J.
[Anil R. Dave]
.............................J.
[Dipak Misra]
New Delhi;
February 14, 2014.
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