TRIVENI ENGICONS Vs. UNION OF INDIA

JUDGEMENT

(1.) The applicant seeks review of an order dated June 23, 2011 by which the applicant's request under section 11 of the Arbitration and Conciliation Act, 1996 was dismissed on the ground that it did not disclose the primary jurisdictional fact entitling the applicant to carry a request to the Chief Justice or his designate for the constitution of an arbitral tribunal. The ground urged is that despite due diligence on the part of the applicant, the applicant could not demonstrate at the time that the section 11 request was taken up that a letter dated April 1, 2010 by the applicant to the respondent had been duly delivered to the respondent. The applicant says that since the postal confirmation came from the appropriate authorities only in the month of December, 2011, the applicant was prevented from establishing at the time that the matter was taken up that the applicant had actually served the notice of April 1, 2010 on the respondent. It is of some significance that the applicant's query to the postal authorities was by a letter of October 27, 2011, some four months and a bit after the request under section 11 of the Act stood dismissed. The arbitration clause that the applicant had cited was the one contained in the general conditions governing railway contracts. Clause 64(1)(i) of the general conditions, in its material part, stipulates that a contractor may make a claim to the railways and upon the railways failing to take a decision on such claim, the contractor "after 120 days but within 180 days of his presenting a final claim on the disputed matters shall demand in writing that the dispute or difference be referred to arbitration." The clause gives a window for a reference to be sought by a contractor. The legality of such clause has not been questioned and, in any event, cannot be disputed in the present proceedings.

(2.) It was the case of the applicant herein in the request under section 11 of the 1996 Act that the original claim was lodged by a letter dated April 1, 2010 and upon such claim remaining unresolved and no decision being communicated in such regard to the applicant, the applicant invoked the arbitration agreement by its letter dated September 1, 2010. As would appear from the order dated June 23, 2011, there is no dispute that the letter of September 1, 2010 was received by the respondent.

(3.) The order dated June 23, 2011 noticed that the petition did not specify when the letter of April 1, 2010 was delivered to or received by the railways. In such circumstances, the relevant order held that the petitioner could not indicate when the window opened up in terms of Clause 64(1)(i) of the general conditions for the applicant to be entitled to invoke the arbitration agreement. The order clearly stated that the petition in that case did not disclose the starting point of the period of 120 days and, in such a situation, the period between the 120th day and 180th day could not be ascertained. The request under section 11 of the 1996 Act was dismissed as it did not disclose such material fact.