SCHLUMBERGER ASIA SERVICES LTD.versusOIL & NATURAL GAS CORPORATION LTD.

                     [2013] 5 S.C.R. 557

         SCHLUMBERGER ASIA SERVICES LTD.                         A
                         v.
        OIL & NATURAL GAS CORPORATION LTD.
          ARBITRATION PETITION N0.6 OF 2013
                        MAY 09, 2013
                                                                 B
              [SURINDER SINGH NIJJAR, J.]

      Arbitration and Conciliation Act, 1996 - s. 11 (6) - Petition
 under - For appointment of nominee Arbitrator on behalf of
 respondent and also appointment of third Arbitrator (Presiding C
 Arbitrator) in Arbitral Tribunal to adjudicate disputes between
 the parties - Maintainability - Whether arbitration petition
 liable to be dismissed on ground of limitation as it raises
 dead claims or the matter ought to be left to be decided by
 the Arbitral Tribunal - Held: The Chief Justice or the D
 designated Judge can also decide whether the claim was
 dead one or a long-ba"ed claim - But it is not imperative for
 the Chief Justice or his designate to decide the questions at
 the threshold - It can be left to be decided by the Arbitral
 Tribunal - In the present case, there is a dispute as to whether E
 the repeated notices sent by the petitioner to the respondents
 were ever received - There are further disputes (even if the
 notices were received by respondent-ONGC) as to whether
 they were actually received in the correct section of
 respondent-ONGC - These are matters of evidence which are
 normally best left to be decided by the Arbitral Tribunal - It F
 would be appropriate for Supreme Court to constitute the
 entire Arbitral Tribunal in exercise of powers uls. 11 (6).

      The instant arbitration petition was filed under
  Section-11 (6) of the Arbitration and Conciliation Act, 1996   G
  seeking direction from this Court for appointment of the
. nominee Arbitrator on behalf of the respondent and also
  appointment of third Arbitrator (Presiding Arbitrator) in

                              557                                H
    558      SUPREME COURT REPORTS              [2013) 5 S.C.R.


A the Arbitral Tribunal to adjudicate the disputes between
  the parties.

      The respondent raised preliminary objection to the
  maintainability of the arbitration petition contending that
  the petitioner had filed the present case only to bring
8 unnecessary litigation; that the arbitration petition was an
  abuse of process of law and that the claims made were
  barred by a long period of time and were, therefore, dead
  claims.

C        Per contra, the petitioner submitted that the limitation
    stops running from the date mentioned in the notice
    invoking arbitration and in the present case, the notice
    invoking arbitration was sent on 14th November, 2008;
    that in any event, the petitioner had sent the final notice
o   on 9th January, 2012 and the respondent had denied the
    claim through its letter dated 29th February, 2012, thus,
    the disputes clearly arose only w.e.f. 29th February, 2012
    and therefore, the preliminary objection raised by the
    respondent deserves to be rejected.
E       The question which arose for consideration was
    whether the arbitration petition is liable to be dismissed
    on the ground of limitation as it raises dead claims and it
    would not be necessary for this Court to leave the matter
    to be decided by the Arbitral Tribunal.
F
          Allowing the Arbitration Petition, the Court

        HELD: 1. A bare perusal of the observations made
  by this Court in the judgment in SBP & Co. case makes
G it clear that the Chief Justice or the designated Judge can
  also decide whether the claim was dead one or a long-
  barred claim. But it is not imperative for the Chief Justice
  or his designate to decide .the questions at the threshold.
  It can be left to be decided by the Arbitral Tribunal. The
  observations made in SBP & Co. case were explained by
H
 SCHLUMBERGER ASIA SERVICES LTD. v. OIL & NATURAL 559
               GAS CORPN. LTD.

this Court in Indian Oil Co. Ltd. Case. These observations       A
make it clear that it is optional for the Chief Justice or his
designate to decide whether the claim is dead (long-
barred). It is also made clear by this Court that the Chief
Justice or his designate would do so only when the claim
is evidently and patently a long time-barred claim. The          B
claim could be said to be patently long time-barred, if the
contractor makes it a decade or so after completion of the
work without referring to any acknowledgment of a
liability or other factors that kept the claim alive in law.
On the other hand, if the contractor makes a claim, which        c
is slightly beyond the period of three years of completing
the work say within five years of completion, the Court
will not enter into disputed questions of fact as to whether
the claim was barred by limitation or not. The judgment
further makes it clear that there is no need for any             D
detailed consideration of evidence. [Paras 16] [569-G-H;
570-A; 571 -B-D]

    SBP & Co. Vs. Patel Engineering Ltd. & Anr. (2005) 8
SCC 618: 2005 (4) Suppl. SCR 688; and Indian Oil
Corporation Ltd. Vs. SPS Engineering Ltd. (2011) 3 SCC           E
507: 2011 (2) SCR 512 - relied on.

    2. In the present case, there is a dispute as to
whether the repeated notices sent by the petitioner to the
respondents were ever received. There are further                F
disputes (even if the notices were received by ONGC) as
to whether they were actually received in the correct
section of ONGC. These are matters of evidence which
are normally best left to be decided by the Arbitral
Tribunal. [Para 17] [571-E-F]
                                                                 G
    3. It would be appropriate for this Court to constitute
the entire Arbitral Tribunal in exercise of powers under
Section 11 (6) of the Arbitration and Conciliation Act, 1996.
[Para 18] [571 -G]
                                                                 H
    560       SUPREME COURT REPORTS                   [2013) 5 S.C.R.


A                          Case Law Reference:
          2005 (4) Suppl. SCR 688 relied on              Para 12, 15,
                                                         16
          2011 (2) SCR 512               relied on       Para 15, 16
B
         CIVIL ORIGINAL JURISDICTION : Arbitration Petition No.
    6 of 2013.

          Sanjiv Puri, Aditya Chhibber, B.K. Satija for the Petitioner.

C       Siddharth Luthra, ASG, Gaurav Agrawal, Shankar
    Narayanan, Arjun Diwan for the Respondent.

          The Judgment of the Court was delivered by

       SURINDER SINGH NIJJAR, J. 1. This petition is filed
D under Section 11 (6) of the Arbitration and Conciliation Act,
  1996 seeks a direction from this Court for appointment of the
  nominee Arbitrator on behalf of the respondent and also
  appointment of third Arbitrator (Presiding Arbitrator) in the
  Arbitral Tribunal to adjudicate the disputes arises between the
E parties.

         2. The petitioner is a Company incorporated and
    registered under the law of Hong Kong having its project office
    in India and one of the base offices at Mumbai. The respondent
F   is a Corporation registered under the Companies Act, 1956
    having its registered office at Jivan Bharti Tower-2, 124, Circus
    New Delhi.

        3. In its counter-affidavit, the respondent has raised a
  preliminary objection to the maintainability of the petition. It is
G submitted by the responden~ that the petitioner has filed the
  present case only to bring unnecessary litigation. The
  arbitration petition is an abuse of process of law and the claims
  made are barred by a lo11g period of time and are, therefore,
  dead claims.
H
  SCHLUMBERGERASIASERVICES LTD. v. OIL& NATURAL 561
     GAS CORPN. LTD. [SURINDER SINGH NIJJAR, \l:]

      4. In order to decide the prelimir;iary objection, it would be   A
· necessary to take note of certain relevant events.

      5. The petitioner and the respondent had entered into and
 executed a contract dated 7th December, 2004 (effective from
 the date of issue of the firm order dated 6th August, 2004). The
                                                                       B
 contract under Clause 27 provides for arbitration as the
 mechanism for resolution of any dispute that may arise between
 the petitioner and the respondent. The arbitration clause reads
 as under:

      "27 ARBITRATION                                                  c
      27 .1 Except as otherwise provided elsewhere in the
      CONTRACT if any dispute, difference, question or
      disagreement arises, at any time before or after
      completion or abandonment of work, between the parties           D
      hereto or the.irrespective representatives or assignees, at
      any time in connection with construction, meaning,
      operation, effect, interpretation or out of the CONTRACT
      or breach thereof the same shall be decided by an Arbitral
      Tribunal consisting of three Arbitrators. Each party shall       E
      appoint one Arbitrator and the Arbitrators so appointed
      shall appoint the third Arbitrator who will act as Presiding
      Arbitrator.

      The party desiring the settlement of dispute shall give
      notice of its intention to go for arbitration clearly stating all F
      disputes to be decided by arbitral tribunal and appoint its
      own arbitrator and call upon the other party to appoint its
      own arbitrator within 30 days. In case a party fails to
      appoint an arbitrator within 30 days from the receipt of the
      request to do so by the other party or the two Arbitrators- G
      so appointed fail to agree on the appointment of third
      Arbitrator within 30 days from the date of their
      appointment, upon request of a party, the Chief Justice of
    · India or any person or institution designated by him (in
      case of International Commercial Arbitration) shall appoint H
    562       SUPREME COURT REPORTS                   [2013] 5 S.C.R.

A         the Arbitrators/Presiding Arbitrator. In case of domestic
          Contracts, the Chi~f Justice of the High Court or any person
          or institution designated by him within whose jurisdiction
          the subject purcha~ order/CONTRACT has been placed/
          made, shall appoint tt;ie arbitratotWresiding Arbitrator upon
B         request of one of the 'f)arties.

          If any of the Arbitrators so appointed a1es, resigns,
          incapacitated or withdr'Clws for any reason from the
          proceedings, if shall be lawful for the concerned party/
          arbitrators to appoint another person in ~is place in the
c         same manner as aforesaid. Such person shall proceed
          with the reference from the stage where his predecessor
          had left if both parties consent for the same; otherwise, he
          shall proceed de novo.

D         It is a term of the CONTRACT that the party invoking
          arbitration shall specify all disputes ,to be referred to
          arbitration at the time of invocation of arbitration and not
          thereafter.

          It is also a term of the CONTRACT that neither party to the
E
          CONTRACT shal! be entitled for any ante-lite (pre-
          reference) or pendent-lite interest on the amount of the
          award.

          The Arbitral Tribunal shall give reasoned award and the
F         same shall be final, conclusive and binding on the parties.

          The venue of the arbitration shall be at Mumbai, India.

          It is a term of the CONTRACT that the cost of the
          arbitration will be borne by the parties in equal shares.
G
          Subject to as aforesaid the provisions of the Arbitration
          and Conciliation Act, 1996 and any statutory modifications
          or re-enactment in lieu thereof shall apply to the arbitration
          proceedings under this clause."
H
SCHLUMBERGER ASIA SERVICES LTD. v. OIL & NATURAL 563
   GAS CORPN. LTD. [SURINDER SINGH NIJJAR, J.]
     Clause 26 of the Contract further provides as under:              A

     "26 JURISDICTION AND APPLICABLE LAW:

    This agreement including all matter connected with this
    Agreement, shall be governed by the laws of India (both
    substantive and procedural) for the time being in force and 8
    shall be subject to exclusive jurisdiction of the Indian Court ·
    at Mumbai. Foreign Companies, operating in Indian or
    entering into Joint ventures in India, shall have to obey the
    law of the Land and there shall be no compromise or
    excuse for the ignorance of the Indian legal system in any C
    way."

      6. The petitioner together with its affiliates is a leading
oilfield service provider. It is trusted to deliver superior results
and improved E&P performance for oil and gas companies                 o
around the world, including India. Through its well site
operations, research and engineering facilities, it is working to
develop products, services and solutions that optimize
customer performance in a safe and environmentally sound
manner. It employs over 113,000 people of more than 140                E
nationalities working in 85 countries, including India.

     7. The respondent was desirous of hiring four sets of
Measurement While Drilling (MWD) and one set of Gyro
Equipment & Services (Gyro) collectively referred to as
"Equipments" for carrying out its operation. Accordingly, the          F
respondent issued a tender No.MR/DS/MAT/CT/MWD/
142(390) 2003-04/P46KC04002. The petitioner had the
necessary experience of carrying out operation as stated in the
tender and submitted a bid on 8th June, 2004 under offer
No.SASUD&M/ONGC 4002/2002-02 for providing the required                G
services against the respondent's tender in accordance with
the terms and conditions set-forth therein. The respondent
accepted the bid of the petitioner and placed a firm order dated
6th August, 2004 under No.MR/DS/MAT/CT/MWD/
142(390)2003-04/DY8DF0301/ 9010002261. Accordingly, on                 H
    564      SUPREME COURT REPORTS                  [2013] 5 S.C.R.


A   7th December, 2004, the parties entered into and duly executed
    a contract effective from the date of issue of the firm order i.e.
    6th August, 2004. The petitioner agreed to perform a work
    defined in Appendix-Ill of the Contract. The respondent in
    consideration thereto promised to pay the amounts set out in
B Appendix-IV of the Contract at the time and in the manner
  . prescribed in the contract. The duration of the contract was
    initially for a period of 2 years from the date of receipt of
    "Equipments" at Nhava base. The respondent had the option
    of extending the contract by one more year in two equal
c installments of six months each at the same rate, terms and
    conditions. The contract was automatically extendable for
    completion of jobs in ongoing wells, at the same rates, terms
    and conditions. The petitioner claims that as it was providing
    excellent seivices to the respondent, the contract was extended
    from 16th October, 2006 to 15th April, 2007 for the first
0
    installment of six months. Thereafter, it was extended from 16th
    April, 2007 to 15th October, 2007 for the second installment
    of six months on the same rates, terms and conditions as
    contained in Clause 2.0 of the Special Terms and Conditions
    of the Contract.
E
          8. The petitioner further claims that it performed the work
    in terms of the contract and raised invoices for the work
    performed from time to time. However, invoices amounting to
    USO 481,252.65 and INR 9,565,616 were either short paid or
F not paid despite the work under the contract was satisfactorily
    performed by the petitioner. The details of the invoices raised
    by the petitioner are as under:

      Invoice No.             Period               Amount (USO)

G     800001820               March 2006           128,630.00

      800001821               March 2006           89,149.00

      8000018288              March 2006           31,053.00
H     8000018298              March 2006           41,406.00
 SCHLUMBERGER ASIA SERVICES LTD. v. OIL & NATURAL 565
    GAS CORPN. LTD. [SURINDER SINGH NIJJAR, J.]

  800002119               September 2006        192,169.00            A

  8000021208              September 2006        63,729.00

  800002860               September 2007        71,304.00

  8000028618              September 2007        96.00                 8
  8000028628              September 2007        49,487.00

                          Total                 667,023.00
     9. The petitioner further claims that the respondent has         c
refused to make payment against the aforesaid invoices. The
respondent totally rejected the various Lost in Hole (UH) claims
of the petitioner. According to the petitioner, in the event of
"Equipments" are lost, destroyed or damaged in the site well,
the respondent is liable to pay the depreciated replacement           D
value of the "Equipments" stuck/lost in the hole subject to a limit
of 50% calculated from the date of first use of such
"Equipments" in India. Furthermore, in terms of the Clause 17
of the Contract, the respondent was under an obligation to make
an attempt to recover or retrieve the said tools but the              E
respondent failed to discharge this obligation also.

     10. Since no payment had been received,,the petitioner
sent a letter to the respondent on 11th July, 2008 demanding
the payment of the outstanding amount. However, there was no
response to the aforesaid communication. The petitioner,              F
therefore, issued a legal notice dated 14th November, 2008
invoking arbitration under Clause 27 of the Contract. In the
aforesaid notice, the petitioner detailed the disputes that have
arisen between the parties. In the same notice, the petitioner
informed the respondent that it has nominated the Arbitrator and      G
called upon the respondent to nominate their Arbitrator within
30 days from the date of receipt of the notice, failing which the
petitioner shall be constrained to initiate legal steps for
iappointment of Arbitrator on behalf of the respondent.
According to the petitioner, the aforesaid notice was duly            H
    566      SUPREME COURT REPORTS                   (2013] 5 S.C.R.


A served upon the respondent but no steps were taken by them
  for appointment of J,\rbitrator. Thereafter, the petitioner sent a
  reminder letter on 21st May, 2009 calling upon the respondent
  to nominate an Arbitrator within 30 days from the date of
  receipt of the notice. The petitioner reiterated that in case the
8 respondent     still failed to nominate the Arbitrator, the petitioner
  shall initiate proceedings for appointment of Arbitrator on behalf
  of the respondent. Another reminder was issued by the
  petitioner on 11th August, 2010 in the same terms as the earlier
  notices and the reminders. Still there was no response from the
C respondent, which led the petitioner to send another notice on
  9th January, 2012. Finally, on 29th February, 2012, the
  respondent sent a reply to the petitioner denying that any
  amount as claimed by the petitioner was due.

        11. At this stage, the petitioner finally accepted that
D disputes have arisen between the parties and filed the present
  petition under Section 11 (6) of the Arbitration and Conciliation
  Act, 1996 seeking appointment of the nominee Arbitrator on
  behalf of the respondent as well as the third Arbitrator
  (Presiding Arbitrator).
E
        12. I have heard the learned counsel for the parties. Mr.
  Siddharth Luthra, learned senior counsel has submitted that: (1)
  the petitioner had accepted the payment without demur in 2007.
  The claims are, therefore, already settled.; (2) The contract had
  come to an end long time ago upon the petitioner accepting
F payment in 2007.; (3) The cause of,action, if any, arose in
  2007, while the arbitration petition is filed in January, 2013.; (4)
  According to Mr. Luthra, even on pleadings of the petitioner,
  the cause of action arose to the petitioner for filing petition under
  Section 11 (6) of the Arbitration and Conciliation Act from 14th
G December, 2008 i.e. on expiry of 30 days from the first notice
  dated 14th November, 2008 invoking arbitration. Learned
  senior counsel submitted.that the present petition ought to have
  been filed within a maximum period of 3 years from the said
  date, i.e., on or before 14th December, 2011 while the present
H
  SCHLUMBERGER ASIA SERVICES LTD. v. OIL & NATURAL 567
     GAS CORPN. LTD. [SURINDER SINGH NIJJAR, J.]

  petition has been filed on 11th January, 2013. Learned senior A
  counsel emphasized that this Court would not entertain the
  present petition as it raises dead claims. The contract expired
  after the de-hiring of last unit on 21st October, 2007. The
  respondent had received the entire amount in the years 2006-
  07. Pointing out to the averments made in the counter-affidavit, B
  Mr. Luthra submits that the letter dated 14th November, 2008,
  21st May, 2009 and 11th August, 2010, which were written to
  ONGC, were not received in the concerned section of ONGC.
  The address in the contract for correspondence was given as
  ONGC Limited, Drilling Services, Mumbai Region, 38,               c
. Vasundhara Bhavan, Sandra-East, Mumbai-51. This was
  changed to ONGC Limited, Drilling Services, Directional Drilling
  Section, Mumbai Region, 2nd Floor, 11-High, ONGC, Sion 0/V),
  Mumbai-400017 in October, 2005. This was known to the
  petitioner as it had submitted the invoices to ONGC at new D
  address. However, notices dated 21st May, 2009 and 11th
  August, 2010 were still sent to the earlier address. In any event,
  notice dated 14th November, 2008 was never received by the
  respondent. Mr. Luthra submits that mere sending of
  subsequent show cause notice/letters would not extend the
                                                                     E
  limitation as the date of cause of action was fixed on the expiry
  of 30 days from the first notice dated 14th November, 2008.
  Mr. Luthra points out that Section 43 of the Arbitration and
  Conciliation Act, 1996 provides that the Limitation Act, 1963
  shall apply to arbitrations as it applies to proceedings in Court.
  Relying on Section 43(2) read with Section 21 of the aforesaid F
  Act, the learned counsel submitted that the arbitration shall be
  deemed to have commenced on the date on which a request
  for that dispute referred to arbitration is received by the
  respondent. The petitioner having sent the first notice on 14th
  November, 2008, the arbitration petition ought to have been G
  filed after the expiry of 30 days therefrom. Learned counsel
  relies on the Constitution Bench of this Court in SBP & Co. Vs.
  Patel Engineering Ltd. & Anr. (2005} 8 SCC 618, in support
  of the submission that the present petition is barred by
                                                                     H
    568       SUPREME COURT REPORTS                   [2013) 5 S.C.R.


A   limitation. He relies on para 39 of the judgment, which reads
    as under:

          "39. It is necessary to define what exactly the Chief Justice,
          approached with an application under Section 11 of the
          Act, is to decide at that stage. Obviously, he has to decide
B
          his own jurisdiction in the sense whether the party making
          the motion has approached the right High Court. He has
          to decide whether there is an arbitration agreement, as
          defined in the Act and whether the person who has made
          the request before him, is a party to such an agreement.
c         It is necessary to indicate that he can also decide the
          question whether the claim was a dead one; or a long-
          barred claim that was sought to be resurrected and
          whether the parties have concluded the transaction by
          recording satisfaction of their mutual rights and obligations
D         or by receiving the final payment without objection. It may
          not be possible at that stage, to decide whether a live claim
          made, is one which comes within the purview of the
          arbitration clause. It will be appropriate to leave that
          question to be decided by the Arbitral Tribunal on taking
E         evidence, along with the merits of the claims involved in
          the arbitration. The Chief Justice has to decide whether
          the applicant has satisfied the conditions for appointing an
          arbitrator under Section 11 (6) of the Act. For the purpose
          of taking a decision on these aspects, the Chief Justice
F         can either proceed on the basis of affidavits and the
          documents produced or take such evidence or get such
          evidence recorded, as may be necessary. We think that
          adoption of this procedure in the context of the Act would
          best serve the purpose sought to be achieved by the Act
G         of expediting the process of arbitration, without too many
          approaches to the court at various stages of the
          proceedings before the Arbitral Tribunal."

        13. Relying on the aforesaid observations, the learned
    senior counsel has submitted that this Court would have to
H
  SCHLUMBERGER ASIA SERVICES LTD. v. OIL & NATURAL 569
     GAS CORPN. LTD. [SURINDER SINGH NIJJAR, J.]

 decide as to whether the petition is liable to be dismissed on       A
 the ground of limitation as it raises dead claims. It would not
 be necessary for this Court to leave the matter to be decided
 by the Arbitral Tribunal.

        14. On the other hand, Mr. Sanjiv Puri, learned senior
                                                                      8
 counsel appearing for the petitioner submits that the limitation
 stops running from the date mentioned in the notice invoking
 arbitration and in the present case, the notice invoking
 arbitration was sent on 14th November, 2008. Learned counsel
 also relied on Section 3 of the Arbitration and Conciliation Act,    C
 1996 in support of the submission that the notice is deemed
 to have been received by respondent as it was delivered to the
 addresses mentioned in the contract. In any event, the learned
 counsel submitted that the petitioner had sent the final notice
 on 9th January, 2012 and the respondent had denied the claim
 through its letter dated 29th February, 2012. The disputes           D
 clearly arose only w.e.f. 29th February, 2012. Therefore, the
 preliminary objection raised by the r~spondent deserves to be
 rejected.                             ·

      15. In any event, learned senior counsel submitted that this    E
 Court-in· the case of Indian Oil Corporation Ltd. Vs. SPS
 Engineering Ltd. (2011) 3 SCC 507 has considered and
 explained the observations made by the Constitution Bench in
 SBP & Company's case (supra). It is submitted that on the
 question of limitation, this Court had categorically held that the   F
 matter will be left to the decision of the Tribunal to decide
 whether the claim made is barred by limitation or not.

       16. I have considered the submissions made by the
  learned counsel for the parties. A bare perusal of the
  observations made by this Court in paragraph 39 of the              G
. judgment in SBP & Co. (supra) makes it clear that the Chief
  Justice or the designated Judge can also decide whether the
  claim was dead one or a long-barred claim. But it is not
  imperative for the Chief Justice or his designate to decide the
  questions at the threshold. It can be left to be decided by the     H
    570       SUPREME COURT REPORTS                    [2013J 5 S.C.R.

A Arbitral Tribunal. The observations made in SBP & Co. (supra)
  were explained by this Court in Indian Oil Co. Ltd. (supra),
  which are as under:

          "14. To find out whether a claim is barred by res judicata,
          or whether a claim is "mala fide", it will be necessary to
8
          examine the facts and relevant documents. What is to be
          decided in an application under Section 11 of the Act is
          whether there is an arbitration agreement between the
          parties. The Chief Justice or his designate is not expected
          to go into the merits of the claim or examine the tenability
c         of the claim, in an application under Section 11 of the Act.
          The Chief Justice or his designate may however choose
          to decide whether the claim is a dead (long-barred) claim
          or whether the parties have, by recording satisfaction,
          exhausted all ri_ghts, obligations and remedies under the
D         contract, so that neither the contract nor the arbitration
          agreement survived. When it is said that the Chief Justice
          or his designate may choose to decide whether the claim
          is a dead claim, it is implied that he will do so only when
          the claim is evidently and patently a long time-barred
E         claim and there is no need for any detailed consideration
          of evidence. We may elucidate by an illustration·:if the
          contractor makes a claim a decade or so after completion
          of the work without referring to any acknowledgment of a
          liability or other factors that kept the claim alive in law, and
F         the claim is patently long time-barred, the Chief Justice or
          his designate will examine whether the claim is a dead
          claim (that is, a long time-barred claim). On the other hand,
          if the contractor makes a claim for payment, beyond three
          years of completing of the work but say within five years
G         of completion of work, and alleges that the final bill was
          drawn up and payments were made within three years
          before the claim, the Court will not enter into a disputed
          question whether the claim was barred by limitation or not.
          The Court will leave the matter to the decision of the
          Tribunal. If the distinction between apparent and obvious
 SCHLUMBERGERASIASERVICES LTD. v. OIL& NATURAL 571
    GAS CORPN. LTD. [SURINDER SINGH NIJJAR, J.]

     dead claims, and claims involving disputed issues of            A
     limitation is not kept in view, the Chief Justice or his
     designate will end up deciding the question of limitation
     in all applications under Section 11 of the Act.

     These obser\iations make it clear that it is optional for the   8
Chief Justice or his designate to decide whether the claim is
dead (long-barred). It is also made clear by this Court that the
Chief Justice or his designate would do so only when the claim
is evidently and patently a long time-barred claim. The claim
could be said to be patently long time-barred, if the contractor     C
makes it a decade or so after completion of the work without
referring to any acknowledgment of a liability or other factors
that kept the claim alive in law. On the other hand, if the
contractor makes a claim, which is slightly beyond the period
of three years of completing the work say within five years of
completion, the Court will not enter into disputed questions of      D
fact as to whether the claim was barred by limitation or not. The
judgment further makes it clear that there is no need for any
detailed consideration of evidence.

     17. In the present case, there is a dispute as to whether       E
the repeated notices sent by the petitioner to the respondents
were ever received. There are further disputes (even if the
notices were received by ONGC} as to whether they were
actually received in the correct section of ONGC. These are
matters of evidence which are normally best left to be decided       F
by the Arbitral Tribunal.

      18. In my opinion, it would be appropriate for this Court to
constitute the entire Arbitral Tribunal in exercise of my powers
under Section 11 (6) of the Arbitration and Conciliation Act,
1996. In exercise of the aforesaid powers, I nominate Justice        G
V.N. Khare, Former Chief Justice of India as the Chairman and
Justice D.P. Wadhwa and Justice S.N. Variava, former Judges
of this Court as Arbitrators to adjudicate the disputes that have
arisen between the parties. The arbitrators shall fix their own
remuneration in consultation with the parties.                       H
    572      SUPREME COURT REPORTS               [2013] 5 S.C.R.


A        19. The Registry is directed to communicate this order to
    the Chairman of the Arbitral Tribunal, as well as to the other
    Arbitrators, so that they can enter upon reference, as soon as
    possible.

         20. With these observations, the Arbitration Petition is
8
    allowed with no order as to costs.

    B.B.B.                           Arbitration Petition allowed.