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2023 DIGILAW 217 (ORI)

Union of India v. Tirtha Singh

2023-11-20

S.K.PANIGRAHI

body2023
JUDGMENT Dr. S.K. Panigrahi, J. This Appeal under Section 37(1)(b) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'A&C Act') has been filed against the judgment dated 23.11.2011 passed by the learned District Judge, Khurda at Bhubaneswar in Arbitration Petition No.103 o 2008 rejecting the application under Section 34 of the Arbitration and Conciliation Act to set aside the award dated 30.11.2007 passed by the Arbitral Tribunal on the ground that the judgment and award are illegal, bad in law due to nonapplication of mind, perverse and contrary to the settled position of law. I. FACTUAL MATRIX OF THE CASE: 2. Tirtha Singh (the 'Respondent"), the contractor, entered into Agreement No.64/EE/BCD-I/1982-83 for the construction of quarters in the Civil Aerodrome, Bhubaneswar, for which a tender was floated in the year 1982-83 at the estimated cost of Rs. 15,20,865/-. 3. The date of commencement of the work was 13.02.1983 and it ought to have been completed in 12 months i.e. 12.02.1984. The necessary documents were handed over to the contractor in time, but he could not complete the work, for which the time was extended up to 09.08.1988. Ergo, the work supposed to be completed within a period of 12 months was completed only after five and half years. 4. Though the work was completed on 09.08.1988, it is alleged that the Appellant failed to pay the final bill to the Respondent and also, did not regularize the extension of time case for a very long time. The Extension case was ultimately regularized on 11.01.1991 i.e. 29 months after the date of actual completion. 5. However, as the final bill was not paid for a long period; the Respondent invoked the Arbitration clause on 02.12.1996 and the First Arbitrator was appointed on 28.05.1997 i.e. after a lapse of about 9 years from the date of the completion of the work. 6. Initially one B.K. Biswas was appointed as Arbitrator in May, 1997 to August, 1999, who conducted 5 hearings. 6. Initially one B.K. Biswas was appointed as Arbitrator in May, 1997 to August, 1999, who conducted 5 hearings. Then, one A.K. Bhatnagar was appointed in March, 2000 up to July, 2002, who conducted 3 hearings and thereafter one Sri O.P. Gaddhyan was appointed as Arbitrator in the month of August, 2002 up to May, 2006, who also conducted 10 hearings and finally one Sri C. Vaswani was appointed as Arbitrator in the month of November, 2006 up to January, 2008 and conducted only 3 hearings, who passed the award hurriedly without affording the department any opportunity to put forth their defence. 7. The Arbitrator, who was in seisin over the case, passed the award allowing the claim of the Respondent under the following heads: (a) Claim No. 2, i.e. Work Executed but Not Paid, for an amount of Rs. 25,753/-; (b) Claim No.7, i.e. compensation for increased cost of material and labour, for an amount of Rs. 77,904/- (c) Claim No.8, i.e. interest, @ 18% per annum, (d) Claim No.13 awarded a sum of Rs. 2,28,000/-, (e) Claim No.14 awarded a sum of Rs. 5,000/- and refund of Rs. 14,428/- to the claimant towards counter claim. 8. In total, an amount of Rs. 11,00,108/- was awarded from 01.02.2008 till the date of payment and further interest @12% per annum. 9. To challenge the aforesaid award, the Appellant/Petitioner filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 wherein the District Judge, Khurda at Bhubaneswar, refused to set aside the award on the grounds that the Arbitrator has assigned sufficient reasons for rejecting the penal recovery of the cost of material and that awarded compensation for increased cost of material and labour was within his competency to allow the claim by taking into account the escalation in the price of material and cost of labour. However, the District Judge reduced the rate of interest from 18% to 12% per annum. II. APPELLANT'S SUBMISSIONS 10. However, the District Judge reduced the rate of interest from 18% to 12% per annum. II. APPELLANT'S SUBMISSIONS 10. The counsel for the Appellant assailed the judgment of the learned District Judge mainly on the ground that the District Judge failed to appreciate that the period of limitation for issuing notice invoking arbitration not being specifically prescribed in the Schedule to the Limitation Act, 1963 (for short, 'the Act 1963') shall be covered by the residuary Article i.e., Article 137 of the Schedule to the said Act i.e. limitation of 3 years from the date when the right to apply accrues. In the present case, there has been an undue delay of 9 years. It is submitted that despite the expiry of the limitation period, neither the Arbitrator nor the District Judge made any averment or discussion or decision over the issue and have passed an order which prejudicial to the interest of the Appellant. 11. The counsel for the Appellant relied on the decision of the Supreme Court passed in Bharat Sanchar Nigam Ltd. & Anr. v. Mis. Nortel Networks India Pvt. Ltd., to argue that the Arbitrator under Section 16 of the A&C Act has to first decide over the jurisdictional issues including limitation so that the judicial intervention at the pre-reference stage can be minimized. Ergo, it is submitted that the act of the Arbitrator as well as the District Judge while entertaining the Section-34 of the Act lost sight of their preliminary endeavor to decide the issue before going to the merit of the case. 12. On 28.05.1997, the CPWD appointed B.K Biswas as the Arbitrator followed by three other Arbitrators in succession. The award was passed by the last Arbitrator. It is alleged, here, that the last Arbitrator passed the award hurriedly and without affording the Appellant any opportunity to put forth his defence, rather arbitrarily. 13. Next, the Arbitrator had awarded compensation for increased cost of material and labour. The grievance of the Appellant is that this claim has been allowed without any evidence; not taking into account the fact that the prolongation of the contract was due to the latches of the contractor himself; a claim seconded by the Arbitrator himself. Ergo, it is submitted that the Arbitrator is in wrong to allow cost vide escalation in the cost of material and labour. Ergo, it is submitted that the Arbitrator is in wrong to allow cost vide escalation in the cost of material and labour. It is also submitted that the Arbitrator did so since the agreement between the parties did not make any provision for such contingency which is normally finds place in construction contracts. 14. The Arbitrator has also awarded interest at different rates for different periods and final interest at the rate of 12% per annum on the entire awarded amount including the cost from the date of award till actual payment. He has awarded interest at the rate of 18% from 02.11.1996 to 31.05.2007 and at the rate of 12% from 01.06.2007 to 31.01.2008. This rate of interest has been awarded since the petitioner-respondent had delayed the payment of the legitimate dues of the Respondent for years. Plus, the award included Rs. 55,000/- towards cost. The argument of the petitioner is that this award is unreasonable since major claims of the claimant have been rejected. It is submitted that the Arbitrator failed to appreciate that the site Engineers prepared the R/A & final bills and paid the value of work done by the Respondent. There, the Respondent accepted the bill and also payment thereof without any reservation or protest. Now after lapse of more than 9 years from the date of completion of the works, it is alleged that the Respondent fabricated stories in order to substantiate his baseless claims before the Arbitrator to derive undue advantage. 15. Further, it was submitted that the site of work was ready and the site Engineers were always available at the site to render any help to the Respondent to take up the job. However, the Respondent was not ready nor he could muster round required skilled and unskilled labour to take up the work. It is argued that there was practically no hindrance from Department's side. The Respondent delayed the work and did not stick to his own words. He did not take any interest in execution of his part of the promise due to improper planning and lack of resources. He has taken the recourse to put blame in the Department after lapse of more than 9 years and has fabricated false stories to derive undue advantage. Hence, the Respondent is entitled to neither any cost nor interest. III. RESPONDENT'S SUBMISSIONS: 16. He has taken the recourse to put blame in the Department after lapse of more than 9 years and has fabricated false stories to derive undue advantage. Hence, the Respondent is entitled to neither any cost nor interest. III. RESPONDENT'S SUBMISSIONS: 16. Per contra, learned counsel for the Respondent submitted that the scope of interference under Section 37 of the A&C Act, 1996 is very limited. The counsel relied on the judgment of the Supreme Court in Haryana Tourism Ltd. v. Kandhari Beverages Ltd., (2022) 3 SCC 237 and Associate Builders v. DDA, (2015) 3 SCC 49 to argue that the High Court cannot go into the merits of the claim, except for a few conditions, if the view taken by the arbitrator is a possible based on facts. 17. On the question of limitation period, it is submitted that the claim of the Respondent was within time. The Respondent had completed the work by 09.08.1988 and the extension was regularized in 11.01.1991. The Respondent had raised his claim for arbitration on 02.12.1996. It is also submitted that till the date of commencement of arbitration, no final bill was prepared. Only after the arbitration had commenced, the final bill was prepared. It is also submitted that no plea was raised before the Arbitrator about the limitation. Ergo, the District Judge has rightly considered the limitation aspect and held the claims to be within limitation. 18. It is submitted that the Arbitrator rightly held that the delay could not only be attributed to the Respondent, because of the inaction of the Appellants in not terminating the contract if the work was getting delayed for 4 and a half years. Further, it is also submitted that there was no evidence to show that the delay in executing the work was solely attributable to the Respondent. 19. Further, it is submitted that the Arbitrator had calculated the escalation on the basis of Clause 10(CC) of the GCC, though there was no such escalation clause in the Agreement. The counsel for the Respondents relied on K.N. Sathyapalan (Dead) by Lrs. v. State of Kerala, 2007 (13) SCC 43 has held that in the absence of an escalation clause, the Arbitrator has the power to award excess amount on account of increase in price and materials if one party fails to fulfil his obligations. The counsel for the Respondents relied on K.N. Sathyapalan (Dead) by Lrs. v. State of Kerala, 2007 (13) SCC 43 has held that in the absence of an escalation clause, the Arbitrator has the power to award excess amount on account of increase in price and materials if one party fails to fulfil his obligations. Ergo, the District Judge has rightfully upheld the claim by examining the record. 20. Against the claim under the head Work executed but not paid, it is submitted that the Arbitrator had rightly considered the aspects of the work being executed; as reflected in the final bill for the following reasons: (a) All materials were used and there was no wastage (b) The issue rates of the materials at the relevant rate were not subsidized rates (c) Cement was under the custody of the appellant (d) The method of measurement of weight of steel is always lower than the actual weights (e) No loss suffered by the Appellant (f) The penalty amount levied is so below that it does prove that the delay is not solely attributable to the Respondent. No evidence produced by the Appellant to justify that the delay was because of the Respondent solely. (g) LD imposed after 2 and half years of work being executed. The District Judge had considered this aspect and at Page 6 has rightly held the award for this claim to be correct. 21. Next, the counsel for the Respondent cited majority decision of the Supreme Court in Hyder Consulting (UK) Limited vs. Governor, State of Orissa through Chief Engineer, (2015) 2 SCC 189 to argue that that in the absence of the interest clause, the Arbitral Tribunal has discretion to exercise its power under Clause (a) of S. 31 (7) of the A&C Act from the date of its award not only on the sum that is found principally due by a party but also on the interest that is payable on such principal sum from the date on which cause of action arose till the date on which the award is made, that is to say, that the arbitral tribunal can grant future interest, i.e. interest from the date of the award, even on the interest which has accrued during the pendency of the arbitration proceedings between the parties. 22. 22. Finally, it is submitted that the Arbitrator has rightly considered the delay in the arbitration proceedings that have been caused by the Petitioner. That, the final bill was only issued after the arbitration proceedings had commenced, i.e., on 26.09.1997. This entails that the final bill was prepared after approximately 10 years of completion of work. Further, it is submitted that the arbitration proceedings started from 1997 and ended in 2006, with four arbitrators hearing the matter completely. Therefore, the Arbitrator was correct in awarding costs to the Respondent. 23. Ergo, this appeal under Section 37 of the Arbitration Act, 1996 ought to be dismissed. IV. ISSUES FOR CONSIDERATION: 24. This court has heard the counsels for both the parties at length, and also perused the material available on record. A. Whether the jurisdiction of the Sole Arbitrator is barred by expiry of limitation period as per the Limitation Act, 1963? B. Whether the order of the District Judge warrants any interference keeping in mind the limitations of this court's powers under section 37 of the A&C Act? V. ISSUE A: Whether the jurisdiction of the Sole Arbitrator is barred by expiry of limitation period as per the Limitation Act, 1963? 25. Since a petition under Section 11(6) of the Act 1996 for seeking appointment of Arbitral Tribunal is required to be filed before the High Court or the Supreme Court, as the case may be, Article 137 of the Schedule to the Act 1963 would apply vide Section 43 of the A&C Act. 26. Article 137 reads thus: Description of Suit Period of Limitation Time from when period begins to run Art. 137: Any other application for which no period of limitation is provided elsewhere in this Division. 3 (three) Years When the right to apply accrues 27. A plain reading of the aforesaid Article would indicate that the period of limitation in cases covered by Article 137 is three years and the said period would begin to run when the right to apply accrues. 28. The starting point of limitation under Article 137 according to third column of the Article is the date when 'the right to apply arises'. This being a residuary Article to be adopted to different classes of applications, the expression 'the right to apply' is an expression of a broad common law principle and should be interpreted according to the circumstances of each case. This being a residuary Article to be adopted to different classes of applications, the expression 'the right to apply' is an expression of a broad common law principle and should be interpreted according to the circumstances of each case. In MIS B&T AG v. Ministry of Defence, 2023 SCC Online SC 657 has endorsed that the 'right to apply' has been interpreted to mean 'the right to apply first arises'. 29. Next, the Apex Court in B&T AG (supra) also referred to the case of Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority, AIR 1988 SC 1887 to hold that the existence of a dispute is essential for the appointment of an Arbitrator under Section 8 and that a dispute can arise only 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 about the existence of a dispute as the expression 'dispute' contains a positive element of assertion and in denying and merely an inaction to accede to a claim or a request. With respect to the period of time, in the light of the facts of that particular case as to when did the dispute actually arise. 30. Three principles of law are discernible from B&T AG (supra) and the cases referred to by the Apex Court therein: First, ordinarily on the completion of the work, the right to receive the payment begins. Secondly, a dispute arises when there is a claim on one side and its denial/repudiation by the other and thirdly, a person cannot postpone the accrual of cause of action by repeatedly writing letters or sending reminders. In other words, 'bilateral discussions' for an indefinite period of time would not save the situation so far as the accrual of cause of action and the right to apply for appointment of arbitrator is concerned. 31. For example, I am here referring to Secunderabad Cantonment Board v. B. Ramachandraiah and Sons, (2021) 5 SCC 705 to demonstrate the aforesaid principles. Here, the Supreme Court studied BSNL v. Nortel Networks India Private, (2021) 5 SCC 738 and Geo Miller and Company Private Limited v. Chairman, Rajasthan Vidyut Utpadan Nigam Limited, (2020) 14 SCC 643 and held as under: '19. Here, the Supreme Court studied BSNL v. Nortel Networks India Private, (2021) 5 SCC 738 and Geo Miller and Company Private Limited v. Chairman, Rajasthan Vidyut Utpadan Nigam Limited, (2020) 14 SCC 643 and held as under: '19. Applying the aforesaid judgments to the facts of this case, so far as the applicability of Article 137 of the Limitation Act to the applications under Section 11 of the Arbitration Act is concerned, it is clear that the demand for arbitration in the present case was made by the letter dated 7-11-2006. This demand was reiterated by a letter dated 13-1-2007, which letter itself informed the appellant that appointment of an arbitrator would have to be made within 30 days. At the very latest, therefore, on the facts of this case, time began to run on and from 12-2-2007. The appellant's laconic letter dated 23-1-2007, which stated that the matter was under consideration, was within the 30-day period. On and from 12-2-2007, when no arbitrator was appointed, the cause of action for appointment of an arbitrator accrued to the respondent and time began running from that day. Obviously, once time has started running, any final rejection by the appellant by its letter dated 10-11-2010 would not give any fresh start to a limitation period which has already begun running, following the mandate of Section 9 of the Limitation Act. This being the case, the High Court was clearly in error in stating that since the applications under Section 11 of the Arbitration Act were filed on 611-2013, they were within the limitation period of three years starting from 10-11-2020. On this count, the applications under Section 11 of the Arbitration Act, themselves being hopelessly time-barred, no arbitrator could have been appointed by the High Court.' (Emphasis supplied) 32. At this juncture, this Court would like to add that the limitation period should also take into consideration the reasonable time under which a claim should have been made by one of the parties to trigger the commencement of the limitation cycle. Take a case where one of the parties, which owes a payment to the other, falters in making the due payment for the longest time and the other party, obediently, sits in the eventual hope of payment till the kingdom come. Here, would the Limitation Statute or the Arbitration Act (in this case) wait for this romance to come full circle!? Here, would the Limitation Statute or the Arbitration Act (in this case) wait for this romance to come full circle!? Absolutely not! 33. To understand the true import of the Limitation Act, we must have to first understand the purpose of limitation jurisprudence in courtroom litigation. In Pashley v. Pacific Elec. Co., 25 Cal. 2d 226,228-29,153 P.2d 325,326 (1944) pronounced by the California Supreme Court, Shenk J. picturesquely described the statute of limitations as a statute of repose, enacted as a matter of public policy to fix a limit within which an action must be brought, or the obligation is presumed to have been paid, and is intended to run against those who are neglectful of their rights, and who fail to use reasonable and proper diligence in the enforcement thereof. These statutes are declared to be 'among the most beneficial to be found in our books." They rest upon sound policy, and tend to the peace and welfare of society. The underlying purpose of statutes of limitation is to prevent the unexpected enforcement of stale claims concerning which persons interested have been thrown off their guard by want of prosecution. In S. C. Prashar, Income-Tax v. Vasantsen Dwarkadas, 1963 AIR 1356, J.L. Kapur, J. also opined that the Statute of Limitation has been devised as a statute of 'repose, peace and justice'. 34. The general principle, which also manifests itself in the Limitation Act, is that every person is presumed to know his own legal right and title in the property, and if he does not take care of his own right and title to the property, the time for filing of the suit based on such a right or title to the property is not prevented from running against him. Ergo, one must know the time to demand legitimate claims from the parties it is transacting. 35. Here, the facts of the case must be vetted against Article 137 to scrutinize the claim of the expiry of limitation period by the Appellant. 36. Now, regarding the computation of the time frame and in the light of the circumstances of this case, it is unclear when the dispute genuinely materialised and the arbitration provision was triggered. 35. Here, the facts of the case must be vetted against Article 137 to scrutinize the claim of the expiry of limitation period by the Appellant. 36. Now, regarding the computation of the time frame and in the light of the circumstances of this case, it is unclear when the dispute genuinely materialised and the arbitration provision was triggered. Despite the fact that the contract work in question was completed on 09.08.1988, the Respondent waited for more than two and a half years for the Appellant to regularize the delay in the completion of work. Thereafter, the Respondent waited for almost 9 more years after the completion of work and 5 years after formalization of the delay before invoking the arbitration clause even though final bills were not prepared and payment not made. This casual attitude by the Respondent reeks of irresponsible awareness of his legal rights and towards the procedures of business. A party which is guilty of laches on account of not being vigilant to avail the remedy in the prescribed limitation is, in my opinion, disentitled from making claims at its whims and fancies. 37. In Geo Miller (supra), the Supreme Court elucidated the concept of 'Breaking Point" and the computation of when it arises in a dispute, as under: 28. Having perused through the relevant precedents, we agree that on a certain set of facts and circumstances, the period during which the parties were bona fide negotiating towards an amicable settlement may be excluded for the purpose of computing the period of limitation for reference to arbitration under the 1996 Act. However, in such cases the entire negotiation history between the parties must be specifically pleaded and placed on the record. The Court upon careful consideration of such history must find out what was the 'breaking point' at which any reasonable party would have abandoned efforts at arriving at a settlement and contemplated referral of the dispute for arbitration. This 'breaking point' would then be treated as the date on which the cause of action arises, for the purpose of limitation. The Court upon careful consideration of such history must find out what was the 'breaking point' at which any reasonable party would have abandoned efforts at arriving at a settlement and contemplated referral of the dispute for arbitration. This 'breaking point' would then be treated as the date on which the cause of action arises, for the purpose of limitation. The threshold for determining when such a point arises will be lower in the case of commercial disputes, where the party's primary interest is in securing the payment due to them, than in family disputes where it may he said that the parties have a greater stake in settling the dispute amicahly, and therefore delaying formal adjudication of the claim." 38. It is true that on completion of the contract work, right to get payment would normally arise, but where the final bill had not been prepared and when the assertion of the claim was made much after the completion of the work and there was non-payment, the cause of action should arise from the date when the assertion was made. Herein, a party cannot postpone the accrual of a cause of action by sending reminders to the party delaying the payment. Nonetheless, waiting for an indefinite amount of time for the payment would also not bend the limitation period in the favour of the litigant. In other words, 'bilateral discussions' for an indefinite period of time would not save the situation so far as the accrual of cause of action and the right to apply for appointment of arbitrator is concerned. 39. In this case, there has been an assertion of claim by the Respondent and silence as well as refusal in respect of the claims made by it against the delay in preparation of bills and final payment against the completed work. This Court is of the opinion that the work was completed in 1988 and, therefore, the Respondent would have become entitled to the payment from that year and the cause of action under Article 137 ought to have arisen from that date. It is also true that final bills were not prepared by the Appellant in due time and when the assertion of the claim was against this non-payment; the cause of action had already exhausted the limitation period prescribed in Article 137 of the Limitation Act. It is also true that final bills were not prepared by the Appellant in due time and when the assertion of the claim was against this non-payment; the cause of action had already exhausted the limitation period prescribed in Article 137 of the Limitation Act. No reasonable person, against the wisdom of business sense and law, would wait for nearly 9 years without making a claim against the other party and seek remedies in case of default. 40. In arbitration, one must always work with time and never against it. The A & C Act has been amended twice in 2015 and 2019, to provide for further time limits to ensure that the arbitration proceedings are conducted and concluded expeditiously. Section 29A mandates that the arbitral tribunal will conclude the proceedings within a period of 18 months. In view of the legislative intent, the period of 9 years for filing an application under Section 11 would run contrary to the scheme of the Act. Since it would defeat the very object of the Act, which provides for expeditious resolution of commercial disputes within a time bound period; a delay, such as in the present matter, cannot be condoned. 41. In B&T AG (supra), the Supreme Court referred to the dictum of Mookerjee, J. in Dwijendra Narain Roy v. Joges Chandra De and others, AIR 1924 Cal 600 wherein the true test to determine when a cause of action could be said to have accrued observing as under: "10....The substance of the matter is that time runs when the cause of action accrues and a cause of action accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed ; Coburn v. Colledge [(1897) 1 Q.B. 702] ; Gelmani v. Morriggia [(1913) 2 K.B. 549]. The cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunals for relief: Whalley v. Whalley [(1816) 1 M.R. 436]. The statute does not attach to a claim for which there is as yet no right of action and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained. The statute does not attach to a claim for which there is as yet no right of action and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained. Consequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result.'' 42. The cause of action becomes important for the purposes of calculating the limitation period for bringing an action. It is imperative that a party realises when a cause of action arises. If a party simply delays sending a notice seeking reference under the A & C Act because they are unclear of when the cause of action arose, the claim can become time-barred even before the party realises the same. 43. In B&T AG (supra), the Supreme Court has further held that: 'Arbitration implies to charter out timeous commencement of arbitration availing the arbitral agreement, as soon as difference or dispute has arisen. Delay defeats justice and equity aid the promptitude and resultant consequences. Defaulting party should bear the hardship and should not transmit the hardship to the other party, after the claim in the cause of arbitration was allowed to be barred. The question, therefore, as posed earlier is whether the court would be justified to permit a contracting party to rescind the contract or the court can revoke the authority to refer the disputes or differences to arbitration. Justice Bachawat in his Law of Arbitration, at p. 552 stated that 'in an appropriate case leave should be given to revoke the authority of the arbitrator. '..' 44. On the issue of whether this objection can at all now be allowed to be raised, and the period of limitation for filing petition under Section 34 of the Act having passed, they place reliance on the judgments of the Supreme Court in Hindustan Zinc Limited (HZL) v. Ajmer Vidyut Vitran Nigam Limited, (2019) 17 SCC 82 and Lion Engineering Consultants v. State of Madhya Pradesh and Others, (2018) 16 SCC 758 , to submit that a plea of lack of jurisdiction of the Arbitrator can be raised at any stage of the proceedings, including before the Supreme Court. They further submit that the incorporation of additional grounds by way of an amendment can be allowed depending on the facts and circumstances of each case. They submit that in the present case, as the amendment raises an issue of lack of jurisdiction of the learned Arbitrator, the same should be allowed to be raised before this Court. 45. Applying the law to the facts of the present case, it is clear that this is a case where the claims are ex facie time barred by over 5 years, since the Respondent did not take any action whatsoever after the rejection of its claim by BSNL on 04.08.2014. The notice of arbitration was invoked on 29.04.2020. 46. There is not even an averment either in the notice of arbitration, or the petition filed under Section 11, or before this Court, of any intervening facts which may have occurred, which would extend the period of limitation falling within Sections 5 to 20 of the Limitation Act. Unless, there is a pleaded case specifically adverting to the applicable Section, and how it extends the limitation from the date on which the cause of action originally arose, there can be no basis to save the time of limitation. 47. In light of the above deliberations, this Court comes to the conclusion that the Respondent was extremely late in the invocation of the arbitration clause and ergo, the arbitral award is rendered invalid for the claims of the respondent were ex facie time barred in the first place. VI. ISSUE B: WHETHER THE ORDER OF THE DISTRICT JUDGE WARRANTS ANY INTERFERENCE KEEPING IN MIND THE LIMITATIONS OF THIS COURT'S POWERS UNDER SECTION 37 OF THE A&C ACT? 48. In the facts and circumstances of the case, narrated hereinabove, the District Court has committed grave error in dismissing the application under Section 34 of the 1996 Act on the ground that it is hopelessly barred by limitation and is a stale claim. VII. CONCLUSION: 49. In the factual matrix, since the Respondent's claim was hopelessly barred by limitation in the first place, this case clearly falls within the purview of Section 34 (2)(iii) of the said Act and as such the impugned order dated 23.11.2011 passed by the District Judge, Khurda in Arbitration Petition No.103 of 2008 dismissing the application filed by the Appellant under Section 34 of the said Act is not sustainable. 50. 50. Consequently, the impugned award dated 30.11.2007 passed by the sole Arbitrator and the impugned order dated 23.11.2011 passed by the Learned District Judge, Khurda, in Arbitration Petition No.103 of 2008 are set aside. The appeal is allowed in the above terms. 51. Accordingly, this ARBA is disposed of being allowed.