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2012 DIGILAW 688 (CAL)

Triveni Engicons v. UNION OF INDIA

2012-07-25

SANJIB BANERJEE

body2012
JUDGMENT Sanjib Banerjee, J. 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. 4. It was open to the applicant to make another request under section 11 of the Act immediately thereafter upon indicating the date of receipt by the railways of the letter of April 1, 2011. Instead, and as is now apparent that the applicant was not aware as to when the letter of April 1, 2010 was received by the railways, the applicant called upon the postal authorities to confirm whether or when the letter dated April 1, 2010 had been delivered to the railways. Following such request made late in October 2011, the postal authorities replied sometime in December, 2011, confirming that the letter had been received by the railways on April 6, 2010. It is evident on the basis of the confirmation issued by the postal authorities that the demand had been made by April 6, 2010 and, accordingly, the letter of invocation issued on September 1, 2010 was in order. As a consequence, it now appears that the request under section 11 was justified and the petitioner would also have been entitled to the appointment of an arbitrator by the Chief Justice or his designate in preference to the mechanism envisaged under the agreement on account of the default on the part of the appointing authority to deal with the letter of invocation within a period of thirty days from the receipt thereof. However, it does not appear that any ground has been made out warranting the order dated June 23, 2011 to be revisited or reconsidered or reviewed. A litigant cannot come to Court and ask for an order which has attained finality to be reopened merely because the litigant was lacking in diligence at an earlier point of time and had subsequently discovered some material that would have entitled the litigant to the order that had been sought but was declined on account of the litigant not being able to fulfill one of the necessary conditions for obtaining it. 5. It was incumbent on the applicant to make the request under section 11 of the 1996 Act complete in all respects. It is evident that the request carried to the Chief Justice or his designate was incomplete and the petitioner had made no effort to demonstrate or even ascertain that the letter dated April 1, 2010 had, indeed, been delivered to the railways. In the light of the petitioner's conduct and the cavalier manner in which it approached the Chief Justice or his designate with the previous request under section 11 of the Act, it cannot be said that the applicant acted with due diligence and despite the applicant's best effort the applicant could not refer to a fact which was germane to the previous adjudication. Since the applicant woke up several months after the section 11 request was declined and since it is evident that the applicant did not attempt to ascertain prior to the request being carried to the Chief Justice or his designate as to whether the letter of April 1, 2010 had been delivered to the railways, the applicant is found lacking in diligence and the present plea for review cannot be entertained. 6. GA No. 312 of 2012 is dismissed. 7. There will be no order as to costs. Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.