MINERALS & METALS TRADING CORPORATION OF INDIA LTD. versus OCEAN KNIGH MARITIME CO. LTD. AND OTHERS

Citation: [2012] 3 S.C.R. 965 · Decided: 29-03-2012 · Supreme Court of India · Bench: RAJENDRA MAL LODHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2012] 3 S.C.R. 965 
MINERALS & METALS TRADING CORPORATION OF 
INDIA LTD. 
v. 
OCEAN KNIGH MARITIME CO. LTD. AND OTHERS 
(Civil Appeal No. 4360 of 2006) 
MARCH 29, 2012 
[R.M. LODHA AND H.L. GOKHALE, JJ.) 
A 
B 
Arbitration Act, 1940 - ss. 5, 11, 12 and 37 - Time barred 
arbitration petition - By a Charter Party, respondent No. 1 had C 
let its vessel to appellant for carriage of cargo - Disputes 
between appellant and respondent No. 1 - Arbitration clause 
in Charter Party invoked - Respondent no. 1 appointed 
respondent no. 2 as its arbitrator whereas appellant appointed 
respondent No.3 as its arbitrator- Time for giving the award o 
by the arbitrators was up to March 31, 1993 - Arbitral award 
could not be passed for want of consensus between the 
arbitrators -
On July 3, 1999, respondent No. 1 filed 
application ulss. 5, 11 and 12 of the Act seeking removal of 
respondent No. 3 as co-arbitrator and for declaration that 
E 
respondent No. 2 was the sole arbitrator and in the alternative 
seeking revocation of authority of respondent No.3 as co-
arbitrator and appointment of a new arbitrator in his place -
High Court allowed the application and after revoking the 
authority of both the arbitrators appointed a former retired 
F 
Judge of that Court as a sole arbitrator- Whether application 
ulss. 5, 11 and 12 of the Act filed on July 3, 1999 by respondent 
No.1 was within limitation - Held: S.37 of the Act makes 
provisions of Limitation Act applicable to arbitrations - The 
Limitation Act does not expressly provide for limitation for an 
G 
application u/ss. 5, 11 and 12 of the Act - Article 137 is a 
residuary provision which prescribes the period of three years 
for an application for which no period of limitation is provided 
elsewhere in the Limitation Act - Period of three years 
commences when the right to apply. accrues - In the instant 
965 
H 
966 
SUPREME COURT REPORTS 
[2012) 3 S.C.R. 
A 
case, right to apply for removal of respondent No.3 as co-
arbitrator or for revocation· of his authority accrued on expiry 
of March 31, 1993 when the two arbitrators became functus 
officio - It was thus, on April 1, 1993 that respondent No.1 
became entitled to apply for the reliefs claimed in the 
B application u/ss. 5, 11 and 12 of the Act - Such application 
could have been made by respondent No.1 within three years 
from April 1, 1993 and not thereafter - Application ulss. 5, 11 
and 12 of the Act filed by respondent No.1 was clearly time 
barred and desetved to be dismissed as such - Limitation 
c Act, 1963 - Article 137. 
By a Charter Party, respondent No.1 had let its 
vessel to appellant for carriage of cargo. Disputes arose 
between the parties in respect of demurrage charges. 
Clause 56 of the Charter Party contained arbitration 
D clause. Respondent No.1 invoked the above arbitration 
clause and vide a letter communicated the appointment 
of respondent No. 2 as its arbitrator whereas the 
appellant appointed respondent No. ·3 as its arbitrator. 
The time for giving the award by the arbitrators was up 
E. to March 31, 1993. Arbitral award, however, could not be 
passed for want of consensus between the arbitrators. 
On July 3, 1999, respondent No.1 filed application under 
Sections 5, 11 and 12 of the Arbitration Act, 1940 seeking 
removal of respondent No.3 as co-arbitrator and for 
F 
declairation that respondent No. 2 was the sole arbitrator 
and in the alternative seeking revocation of the authority 
of respondent No.3 as co-arbitrator and appointment of 
a new arbitrator in his place. The appellant raised 
objection that the application was beyond the prescribed 
G period of limitation and, was liable to be dismissed on 
that ground alone. By the impugned order, the High Court 
allowed the application filed by respondent No.1 under 
Sections 5,11 and 12 of the 1940 Act and after revoking 
the authority of both the arbitrators appointed a former 
H Judge of that Court Justice Usha Mehra (retired) as a sole 
. MINERALS & METALS TRADING CORPN. OF INDIA LTD. 967 
v. OCEAN KNIGH MARITIME CO. LTD. 
arbitrator to decide the disputes between appellant and 
A 
respondent No.1. 
Jn the instant appeal, the question that arose for 
consideration .was whether the application under 
Sections 5, 11 and 12 of the 1940 Act filed on July 3, 1999 
8 
by respondent No.1 was within limitation. 
Allowing the appeal, the Court 
HEL.D: 1. Section 37 of the Arbitration Act, 1940 
makes the provisions of Limitation Act, 1963 a

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