Case Note & Summary
The appellant, M/s Shree Mallikarjun Shipping Pvt. Ltd., entered into a contract dated 25.2.2008 with the respondent, M/s Balaji Logistics Carriers, for the purchase of 40,000 metric tonnes of iron ore. Disputes arose between the parties regarding the contract. The appellant issued a notice on 22.12.2009 calling upon the respondent to refer the dispute to arbitration. On 29.12.2009, the appellant filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 before the District Judge, seeking interim measures. The District Judge rejected the application on the ground that it was barred by limitation. The appellant then filed an appeal against that order and also filed an application under Section 11 of the Act for appointment of an arbitrator. The High Court considered both matters together. The court held that the period of limitation for filing a Section 9 application is three years under the Limitation Act, 1963, and the application was filed within that period. The court set aside the order of the District Judge and allowed the appeal. Further, the court found that there was an arbitration agreement between the parties and the respondent had failed to appoint an arbitrator despite notice. Therefore, the court appointed a retired judge of the High Court as the sole arbitrator to adjudicate the disputes between the parties.
Headnote
A) Arbitration - Interim Measures under Section 9 - Limitation - The court held that the period of limitation for filing an application under Section 9 of the Arbitration and Conciliation Act, 1996 is governed by the Limitation Act, 1963, and the application must be filed within three years from the date when the right to apply accrues. In this case, the dispute arose in 2008 and the Section 9 application was filed on 29.12.2009, which was within the limitation period. The District Judge erred in holding that the application was barred by limitation. (Paras 6-9) B) Arbitration - Appointment of Arbitrator under Section 11 - Existence of Arbitration Agreement - The court held that since there was an arbitration agreement between the parties and the respondent failed to appoint an arbitrator despite notice, the applicant is entitled to appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996. The court appointed a retired judge of the High Court as the sole arbitrator. (Paras 10-12)
Issue of Consideration
Whether the learned District Judge erred in rejecting the appellant's application under Section 9 of the Arbitration and Conciliation Act, 1996 on the ground of delay and whether the appellant is entitled to appointment of an arbitrator under Section 11 of the Act.
Final Decision
The High Court allowed the appeal, set aside the order of the District Judge, and appointed a retired judge of the High Court as the sole arbitrator to adjudicate the disputes between the parties.
Law Points
- Section 9 of the Arbitration and Conciliation Act
- 1996
- Section 11 of the Arbitration and Conciliation Act
- Appointment of arbitrator
- Interim measures
- Limitation for filing Section 9 application
