$~4&10. * IN THE HIGH COURT OF DELHI AT NEW DELHI CS(OS) No.2554/2008 & IA No.9251/2009 (u/O VII R-11 CPC) LAL MAHAL LIMITED ..... Plaintiff Through: Mr. Davinder N. Grover, Mr. Rajesh Gupta, Mr. Vishal K. Panwar, Mr. Vishrul Raj, Mr. Jay K. Bhardwaj, Mr. Narinder and Mr. Prateek Aggarwal, Advs. Versus ABDUL GHAFFAR & ANR ..... Defendants Through: Mr. Kailash Vasudev, Sr. Adv. with Ms. Ekta Mehta, Mr. Shreyans Singhvi, Mr. Sumer Sandhu, Ms. Limayinla Jamir, Mr. Umrao Singh Rawat & Ms. Diviya Rajkhowa, Advs. AND + O.M.P. No.300/2001 & IA No.8552/2010 (u/S 151 CPC). SHIV NATH RAI HARNARAIN (INDIA) LTD. ..... Petitioner Through: Mr. Davinder N. Grover, Mr. Rajesh Gupta, Mr. Vishal K. Panwar, Mr. Vishrul Raj, Mr. Jay K. Bhardwaj, Mr. Narinder and Mr. Prateek Aggarwal, Advs. Versus ABDUL GHAFFAR ABDUL REHMAN .... Respondent Through: Mr. Kailash Vasudev, Sr. Adv. with Ms. Ekta Mehta, Mr. Shreyans Singhvi, Mr. Sumer Sandhu, Ms. Limayinla Jamir, Mr. Umrao Singh Rawat & Ms. Diviya Rajkhowa, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW O R D E R % 07.03.2017 CS(OS) No.2554/2008 & O.M.P. No.300/2001 page 1 of 4 1. The senior counsel for the defendants and the counsel for the plaintiff have been heard on IA No.9251/2009 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) in CS(OS) No.2554/2008. 2. The plaint in this suit for recovery of Rs.6,46,00,000/- towards compensation for breach of contract and for ancillary reliefs is sought to be rejected on three grounds. 3. Firstly, it is contended that the suit claim is barred by time. 4. In this respect, after hearing the counsels it appears that it is the admitted position that the cause of action for recovery of compensation accrued to the plaintiff in or about the year 2001 when the defendants according to the plaintiff breached the Agreement and that the concerned Article of the Schedule to the Limitation Act, 1963 is Article 27 which provides limitation of three years commencing from the time when the contract was to be performed. The suit thus should have been filed in or about the year 2004 but has been filed in the year 2008. 5. The counsel for the plaintiff relies on Section 14 of the Limitation Act contending (i) that the claim as made in the suit was subject matter of an arbitration at Singapore; (ii) that the arbitral Award was pronounced upholding the claim of the plaintiff; and, (iii) that the defendant challenged the said Award in the Courts at Singapore which set aside the Award. It is further stated by the counsel for the plaintiff that the plaintiff thereafter applied to the Supreme Court of India under Section 11(6) of the Arbitration and Conciliation Act, 1996 but which application was dismissed inter alia for the reason that it was the Singapore Court only which could be CS(OS) No.2554/2008 & O.M.P. No.300/2001 page 2 of 4 approached. It is further stated that though the plaintiff again approached the same Arbitrator who had earlier rendered the Award and who entered upon reference but upon the defendants denying even the existence of the Arbitration Agreement, the said Arbitrator abandoned the arbitration. 6. It has been enquired from the counsel for the plaintiff whether Section 14 is applicable to arbitration proceedings. From the wording thereof, it is applicable only to proceedings pending in a Court. 7. Both counsels seek time to cite case law in this regard. 8. The second contention for rejection of the plaint is that the claim subject matter of this suit having been subject matter of arbitration, the said claim is barred by res judicata. 9. Both counsels to in this respect also show case law, especially where the arbitral Award has been set aside at the instance of the party setting up the plea of res judicata. 10. It is the case of counsel for plaintiff that though the order of the Singapore Court does not give any reasons but the setting aside is for the reason of the arbitral Award being ex parte and with permission to the parties to apply again. 11. The senior counsel for the defendant controverts that Award was set aside on the ground of being ex parte. However even if that be so, the question would still arise whether in such an eventuality the principles of res judicata are attracted. CS(OS) No.2554/2008 & O.M.P. No.300/2001 page 3 of 4 12. The third ground invoked for rejection of the plaint is the jurisdiction of this Court being barred owing to the claim subject matter of the suit being subject matter of arbitration. 13. I have enquired from the senior counsel for the defendants whether the defendant applied under Section 8 of the Arbitration and Conciliation Act, 1996. It prima facie appears that without the defendant so applying, the said ground cannot be invoked. 14. The counsels to look up the law on the said aspect also. 15. The counsel for the plaintiff has paid cost of Rs.50,000/- and states that the balance cost shall be paid on the next date of hearing. 16. On request of the counsel for the plaintiff, the balance cost is waived. 17. List on 16th March, 2017. RAJIV SAHAI ENDLAW, J MARCH 07, 2017 ‘pp’.. CS(OS) No.2554/2008 & O.M.P. No.300/2001 page 4 of 4