Judgment:
M/S.MadhuCo.Project LTD.versus Northern Coalfields LTD.Arbitration Case No.59 ”
2. 11.2012: Shri R.K.Sanghi with Shri Jeevesh Nagrath, learned counsel for the petitioner.
Shri Greeshm Jain, learned counsel for respondent.
This is an application filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking constitution of an Arbitration Tribunal for adjudication of dispute between the parties.
Petitioner M/S.MadhuCo.Projects Ltd., which was earlier known as M/S.Madhu Continental Constructions Ltd having its registered office in Hyderabad and an administration office in Dwarka, New Delhi is engaged in the business of construction activities.
It is stated that an agreement was entered into between the petitioner company and the respondent Northern Coalfields LTD.through the registered agent M/S.Central Mine Planning and Design Institute Limited (CMPDI) for the purpose of construction of civil and structural works related to establishment of a permanent crushing scheme.
In the execution of contract as certain dispute has arisen, this application has been filed.
Learned counsel submits that for resolution of dispute in the agreement, clause 13 contemplates an arbitration provision, where arbitration is to be done by the arbitrator to be appointed by the Chairman-cum-Managing Director of Northern Coalfield LTD.or any other person authorized by the Board of Directors of respondent company.
It is stated that as certain dispute have arisen petitioner raised a claim for payment of `59,46,490=41 and when the said claim was not settled, they sought constitution of an arbitration tribunal for adjudication of dispute and when the same was also rejected, this application has been filed.
2 Shri Nagrath, learned counsel for the petitioner invites my attention to the agreement in question entered into between the parties Annexure P-2 and Annexure P-3 and argued that the agreement was entered into between petitioner company and M/S.Northern Coalfields Ltd through the nominated agent M/S.Central Mine Planning & Design Institute LTD.In the agreement, clause 13 contemplates arbitration provision and as there is serious dispute between the parties, an arbitration tribunal, as per the agreement, have to be constituted.
Respondent have raised objection and three grounds have been raised.
The fiRs.ground raised is that the agreement is with M/S.Madhu Continental Constructions PVT.LTD.and this application is filed by M/S.MadhuCo.Projects LTD.and, therefore, it is stated that there is no agreement between respondent company and the petitioner and, therefore, the application is not maintainable.
This contention is refuted by Shri Nagrath by contending that initially the company was known as M/S.Madhu Continental Constructions PVT.LTD.but after complying with the norMs.as are required under the Companies Act, the name of Company has been changed.
He has brought on record the certificate of incorporation showing change in the name of the company, accordingly, the fiRs.objection is refuted by Shri Nagrath by making the aforesaid submission.
The second objection raised by respondent is to the effect that the claim is belated, the claim arose in the year 1996 after final settlement was granted upto 30.4.1996 and, therefore, not a belated claim cannot be entertained.
With regard to the aforesaid Shri Nagrath submits that after agreement was entered into and when there were serious dispute between the parties there were series of correspondence and it was finally decided by the respondent in the year 2010 and, therefore, the application filed within a reasonable time is within 3 limitation.
He invites my attention to various notesheets and office memorandums filed, for eg.
he refers to page 130 of the paper-book wherein legal opinion is given by the experts of respondent company.
By contending that the claim is acknowledged as per these legal opinions which were obtained in the year 2008.
Similarly, legal opinions available on page 111 dated 13.5.2008 and certain acknowledgment in the meeting held on 21.5.2007 are referred to contending that the claim was under consideration and it was only rejected in the meeting of Board of Directors on 3.6.2008 and, therefore there is no delay.
The third objection raised by respondent is to the effect that the agreement is entered into between petitioner and M/S.Central Mine Planning & Design Institute Ltd and, therefore, respondent Northern Coalfields LTD.does not come in the picture.
Having considered the rival contention I am of the considered view that on the objection raised this application cannot be dismissed.
As already indicated hereinabove, there is an arbitration clause and the agreement in question is entered into between parties the documents available on record indicate that initially the name of company was M/S.Madhu Continental Constructions PVT.LTD.and subsequently it has been changed to M/S.MadhuCo.Projects Ltd.That apart, the agreement in question is entered into between petitioner company and by the M/S.Central Mine Planning & Design Institute LTD.who are agents of the respondent Northern Coalfields LTD.Authorized to sign the agent and agreement is signed by M/S.Central Mine Planning & Design Institute Ltd on behalf of Northern Coalfields LTD.that being so objection No.1 & 3 seems to be unsustainable.
4 As far as ground of delay is concerned the over whelming document available on record goes to indicate that till the year 2008 the matter was under consideration before the respondent company and they were assuring the petitioner that they will look into the dispute pending between the parties and therefore the documents submitted in the matter shows that the claim was under active consideration upto year 2008 and till the year 2010, therefore on the ground of delay this application cannot be thrown out.
That apart, as the question of delay is a mixed question of fact and law it can be adjudicated only after recording of evidence of the parties and this exercise can be undertaken more appropriately dealt with by an arbitrator.
In view of above this application is allowed.
The Managing Director-cum-Chairman of respondent company is directed to proceed in the matter for appointment of Arbitrator in accordance to arbitration agreement and liberty is granted to the parties to raise all the objections raised in this proceedings before the arbitrator and the Arbitrator shall proceed in the matter in accordance to law.
The observations made in this order with regard to objections of the respondent are only primafacie in nature and are not the final determination of the objection.
It is for the arbitrator to consider all these questions and the arbitrator is free to take note of material produced before him and thereafter take a decision in accordance to law without being influenced by any observations made in this order.
With the aforesaid the application stands allowed and disposed of.
(Rajendra Menon) Judge ss/-