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2022 (9) TMI 1467 - HC - Indian LawsSeeking appointment of an arbitrator - adjudication upon the disputes related to the sale, implementation and installation by the petitioner of certain hardware and multi-media system accessories along with software for the purpose of setting-up 24 Smart Learn Classes at several schools run by the respondents - time limitation. HELD THAT:- The petitioner's claim against the respondents as raised in invocation notice dated 28.07.2021 is only one: viz. for payment of arrears of licence fee/other dues amounting to Rs. 29,28,100/-, which is founded upon the termination of the contract by the petitioner vide notice dated 04.01.2017. To be sure, the petitioner's invocation notice does not contain any reference to any claim for recovery of hardware, supposedly lying with the respondents upto the year 2019 - Regardless of any correspondence exchanged between the parties thereafter, it is clear that the petitioner's cause of action first arose when the respondents failed to pay the monies due under the contract in addition to damages, as claimed by the petitioner vide its notice dated 04.01.2017. The claim in money is the only claim that was raised in invocation notice dated 28.07.2021; and the argument that the petitioner was also entitled to get back the hardware and other equipments lying with the respondents, is to be considered only to be rejected, since reply dated 31.08.2021 issued by the respondents records that such hardware was picked-up by the petitioner, which the petitioner does not dispute. Even more importantly, the law is clear that an invocation notice must set-out clearly the claims that a party wants referred to arbitration; and in the present case, no claim for recovery of hardware was at all contained in invocation notice dated 28.07.2021. The period of limitation applicable to the petitioner's claim is as follows: having terminated the contract with the respondents vide notice dated 04.01.2017, and the respondents having failed to pay the amounts claimed to be due, the petitioner ought to have issued the notice invoking arbitration within 03 years of that date, viz. by or before 03.01.2020. However, the petitioner issued the notice invoking arbitration only on 28.07.2021, which was evidently beyond the limitation prescribed in law. The limitation bars a legal remedy and not a legal right, the legal policy being to ensure that legal remedies are not available endlessly but only up-to a certain point in time. Needless to add however, that if the respondents are conceding the petitioner's claim itself, and are ready and willing to pay-up, such payment would not be illegal and there could not be any legal impediment in doing so. A party may concede a claim at any time; but cannot concede availability of a legal remedy beyond the prescribed period of limitation. This court is of the opinion that the petitioner's claim against the respondent is ex-facie time barred and is accordingly 'deadwood'; and does not require to be referred to arbitration - Petition dismissed.
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