The Supreme Court in Bharat Sanchar Nigam Ltd. and Anr. v. M/s Nortel Networks India Pvt. Ltd. wherein it has been opined that at the referral stage, the Court can interfere when it is found that the claim is time-barred or there is no subsisting dispute. Once a dispute has already been adjudicated upon, it cannot be said to be a subsisting dispute which requires resolution. In the Hon’ble High Court of Calcutta led through the single-bench by Justice Moushumi Bhattacharya in the matters of Tantia Construction Limited v. Union of India[AP/353/2020].
The facts of the case are that the present application has been filed under Section 11 of the Arbitration and Conciliation Act for the appointment of an arbitrator for the resolution of the dispute between the parties. The arbitration clause in the agreement dated February 22, 2010, is not in dispute.
The counsel for the applicants submitted that as during the currency of execution of the project, there was a dispute regarding price escalation the applicant prayed for the appointment of an arbitrator by filing AP 92 of 2016 before this Court, which was disposed of on September 16, 2016, directing the appointing authority under to ensure constitution of Arbitral Tribunal. The Tribunal considered the claim. The contract was concluded on March 22, 2016. The final bill was prepared and submitted on December 16, 2016. Ascertain claims were rejected, the fresh application was filed by the applicant for the appointment of an arbitrator on August 21, 2017. At this stage, the Court is only to examine whether there exists an arbitration clause in the agreement. Merits of the case cannot be gone into. In support of his argument reliance was placed on the judgment of Hon’ble the Supreme Court in Mayavati Trading Private Limited v. Pradyuat Deb Burman [(2019) 8 SCC 714].
The learned Counsel for the respondent submitted that at the interim stage the applicant, raising certain disputes, sought the appointment of an arbitrator. In terms of the direction issued by this Court in AP 92 of 2016 dated September 16, 2016, Arbitral Tribunal was appointed. The applicant submitted his claim petition on February 23, 2017, which was adjudicated upon by the Tribunal while passing the award on December 11, 2020. The claim for which the Arbitral Tribunal is sought to be appointed by the applicant was part of the claim petition filed by him and have already been adjudicated upon by the Arbitral Tribunal. In fact, by filing a subsequent demand notice on August 21, 2017, the applicant wishes to raise the same issues which he had been raised in the earlier arbitration proceedings and have already been dealt with and partly rejected. Once the claims made by the applicant have already been adjudicated upon by the arbitrator no question arises for the appointment of the fresh arbitrator.
The court concluded “The award of the Arbitral Tribunal as has already been passed clearly shows that the issues, which are sought to be raised now for appointment of an Arbitral Tribunal, in fact have already been adjudicated upon the claim petition filed by the applicant. The Court should direct appointment of an arbitrator has been gone into by Hon’ble the Supreme Court in Bharat Sanchar Nigam Ltd. and Anr. v. M/s Nortel Networks India Pvt. Ltd., wherein it has been opined that at the referral stage, the Court can interfere when it is found that the claim is time-barred or there is no subsisting dispute. The case in hand falls in the second category. Once a dispute has already been adjudicated upon, it cannot be said to be a subsisting dispute which requires resolution.”
The court directed “Considering the aforesaid enunciation of law and the fact that the appointment of an arbitrator is sought for resolution of the dispute which in fact has already been adjudicated upon in the earlier claim petition filed by the applicant, I do not find any case is made out for the appointment of an arbitrator afresh.”