RHD Bangladesh Vs. Nazir –Basic Joint Venture Bangladesh & ors. [4 LNJ (2015) 110]

Case No: Arbitration Application No.20 of 2012

Judge: Md. Rezaul Hasan,

Court: High Court Division,,

Advocate: Fida M. Kamal,Mr. Mohammad Mehedi Hasan Chowdhury,Mr. Apurba Kumar Biswas,Mr. Md. Ashik Al Jalil,Mr. Rafiq ul-Hoque,Mr. Faheemul-Huq,Mr. Margub Kabir,Dr. A.K.M. Ali,Mr. A. K. M. Rabiul Hassan,,

Citation: 4 LNJ (2015) 110

Case Year: 2015

Appellant: RHD Bangladesh

Respondent: Nazir–Basic Joint Venture Bangladesh & ors.

Subject: Arbitration,

Delivery Date: 2014-02-19

HIGH COURT DIVISION
(STATUTORY ORIGINAL JURISDICTION)
 
Md. Rezaul Hasan, J.

Judgment on
19.2.2014
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Roads and High ways Department, Roads Division, Ministry of Communication, Government of the Peoples Republic of Bangladesh, Sarak Bhaban, Ramna, Dhaka represented by its Chief Engineer.
. . .Respondent-Petitioner
-Versus-
NAZIR-BASIC Joint Venture (Bangladesh), H-86 (First Floor), New Airport Road, Banani, Dhaka-1213 Bangladesh and others.   
. . .Opposite parties.
 

Arbitration Act (I of 2001)
Sections 33, 34, 42(2) and 55
The original award losses its originality when the Arbitrator corrects, interprets and  add any additional claims and in such cases an application for setting aside the award needs to be filed within three months from the date of receipt of such corrected or modified award.
There is no justification, as contended, to accept the submission in view of the mandate of section 34 and considering the scheme and purpose of the Arbitration Act that because the application under section 33 of the Act was filed and it was rejected subsequently, therefore, the limitation period commenced afresh from the date of such decision of the award. It is contemplated only on a situation where the Arbitrator corrects or interprets and/or add or decide to add any additional claims and modified the award as only in such cases the original award losses its originality and therefore an application for setting aside the award needs to be filed within three months from the date of receipt of such corrected or modified award. Therefore the party who received the award after deciding the application under section 34(3) of the Act, may get the benefit of fresh commencement of limitation from the receipt of the modified and/or corrected award and not otherwise.” . . . (14)

Arbitration Act (I of 2001)
Sections 42(2) and 55(1)
Where there is a conflict between the provisions of special law and general law, the provisions of special law will prevail. One cannot be allowed to be benefited from its own default.
The words occurring in section 55(1) of the Act that “HC BC­el ¢hd¡e¡hm£ ü¡­f­r”, unambigu-ously and clearly indicates that the Limitation Act, 1908 will apply only subject to the special limitation prescribed in the Arbitration Act 2001. Since, section 42(2) of the Act has prescribed special period of limitation, the Act itself being a special law, the petitioner ought to have filed its petition for setting aside the award within 60 days from 29.11.11, i.e. within 28.1.2012. For not filing the petition within 28.1.2012 the same is clearly barred by special limitation prescribed under section 42(2) of the Act. The petitioner cannot be allowed to be benefited from its own default, least it will be a convenient excuse to any unscrupulous person to frustrate the special limitation by resorting to such tactics and because there is no proviso to section 42(2) of the Act making any room for exclusion of time on this or any other ground. . . . (15)

Arbitration Act (I of 2001)
Sections 42 and 43
There is no cause of action for filling this petition under section 42 sub-section (2) read with section 43 of the Act. Because, admittedly the petitioner has filed an application under Article 29(2) of the ICC Rules seeking the interpretation of the award, not seeking to set-aside the award if the petitioner had any cause of action for filing an application to set aside award then they would have to file this petition immediately after receiving the award on 29.11.2011, at least within 60 days there from, but they did not. Therefore, it can be safely concluded the petitioner had no cause of action to file this petition for setting aside the award. Moreover, the respondent-petitioner (Roads & High Ways) having not deposited the additional cost fixed by the ICC court of Arbitration, for hearing of the application filed under Article 29(2) of the ICC Rules of Arbitration seeking interpretation of the award dated 27.11.2011, the submission of the learned advocate for the petitioner that the said application was filed bonafide can hardly make any favourable impression.            ...(20)

Amit Suryakant Lunavat Vs. Kotak Securities, Mumbai, and another, 2011 (2)R.A.J. 142 (Bom):; Mol Enterprises Inc. Vs. Government of the People’s Republic of Bangladesh, 7 BLT (HCD) 1999, 265 and Rupali Bank Limited and other Vs. Tafazal Hossain and others, 44 DLR (AD) 260 ref.

Mr. A. F. Hassan Arif, Senior Advocate with
Mr. Md. Ashik Al Jalil, Advocate
. . . For petitioner
Mr. Rafiq ul-Hoque, Senior Advocate with
Mr. Faheemul-Huq, Advocate
Mr. Margub Kabir, Advocate
. . .For respondent No.4
Mr. Fida M. Kamal, Advocate with
Dr. A.K.M. Ali, Advocate
. . . For respondent No.1
Mr. Mohammad Mehedi Hasan Chowdhury. Advocate with
Mr. A. K. M. Rabiul Hassan, Advocate
            And
Mr. Apurba Kumar Biswas, Advocate
. . . For respondent No.2 

Arbitration Application No.20 of 2012

JUDGMENT
Mr. Justice Md. Rezaul Hasan
 
This is an application filed by the petitioner Roads and High ways Department under section 42(2) read with section 43 of the Arbitration Act, 2001 (herein after referred to as the Act) for setting aside the award dated 27.11.2011 passed by an Arbitration Tribunal in Dhaka comprising of Mr.Sheikh Fazlur Rahman PE in ICC International Court of Arbitration Case No.15642/JEM/MLK/CYK.
 
For the purpose of disposal of this application the relevant facts, in brief, are as follows:
  1. The petitioner Roads and Highways Department, Roads Division, Ministry of Communication, Government of Bangladesh, after observing all formalities entered into 5 contracts of Road Maintenance Component (RMC) under the Road Maintenance and Improvement Project (RMIP) in different location in the country and contract No.1, 2, 3, 4 & 5 were signed with 5 separate contractors, namely (1) Nazir-Basie JV, (2) OSE-CPC JV, (3) Islam Trding Consortium Ltd (4) AKT-Xerbel JV, (5) Bengal Development Corporation Ltd. All the above contracts were planned as short term contracts with completion period of 12 months only. The period of Contract No.1 and 2 was, during the pre-bid meeting, increased from 12 months to 15 months as these contracts involved importation of cold milling and recycling machineries. Thus the stipulated time for completion of contract No.1 and 2 was fifteen (15) months, whereas the duration for contract No.3, 4 and 5 was twelve (12) months only.
  2. The arbitrations arises from 04(four) contracts of Road Maintenance Component (RMC). The request for arbitration was initially filed on behalf of five claimants, including AKT-Xerbel JV which withdrew from the arbitration with consent of all the parties. No party objected to commencing one arbitration in respect of all four contracts. The project under the contracts were jointly funded by Government of Bangladesh (GOB) and the Asian Development Bank (ADB). The said four contractors, being M/S. Nazir Basic Joint venture, M/S. OSE and CPC Joint Venture, M/S. Islam Trading Corporation Limited (ITCL) and M/S. Bengal Development Corporation Ltd. (BDC) (herein after collectively referred to as the contractors or claimants), vide their letter dated 20 May 2008, bearing ref coc/ Dhaka/1358(02) referred the instant contractual dispute with the present petitioners to arbitration under the Rules of Arbitration of the International Chamber of Commerce in force as from 1st January 1998 (ICC Rules of  Arbitration) as per clause 67.3 common to all the contracts.
  3. The claimants and the present petitioners jointly nominated that Arbitration Tribunal consisting of a sole arbitrator which nomination was then confirmed by the Secretary General of the International Chamber of Commerce International Court of Arbitration (ICC Court) on 3rd October 2008 pursuant to Article 9(2) of the ICC Rules of Arbitration. The Terms of Reference in the arbitration (“TOR”) were finalized and signed in a meeting with the claimants and the respondents on 31 March 2009, and were communicated to the ICC Court on 23 April 2009 pursuant to Article 18(2) of the ICC Rules of Arbitration. According to the TOR, the following issues were formulated for determination in that arbitration:
  4. “It is to be ascertained whether the claimant under the tender clause 70.2 regarding changes in cost due to subsequent legislation, which reads as follows: If, after the date 28 days prior to the latest date for submission of tenders for the contract there occur in the country in which the works are being or are to be executed changes to any National or State Statute, Ordinance, Decree or other Law or any regulation or bye-law (sic) of any local or other duly constituted authority, or the introduction of any such State Statute, Subsequent Ordinance, Decree, Law, regulation or bye-law (sic) which causes additional or reduced cost to the contractor, other than under sub-clause 70.1 in the execution of the contract, such additional or reduced cost shall, after due consultation with the employer and the contractor, be determined by the engineer and shall be added to or deducted from the Contract price, is entitled to any additional costs.”
  5. The claimants took the position that gazette notification published by the government and the orders passed on the recommendation of Bangladesh Petroleum Corporation, effecting changes in the prices of fuel and bitumen are to be treated as falling within the scope of clause 70.2 and, therefore, additional cost shall have to be paid to the contractors by the employer due to increases in the prices of fuel and bitumen as per clause 70.2.
  6. The present petitioner took the position that clause 70.2 of FIDIC is not made applicable to procurement process. Price variation under clause 70.2 of FIDIC is applicable only in the case of change in the cost of the contract due to introduction, amendment or repeal of any law relating to revenue matter or changes in the currency rates etc in the country in which the works is being performed. Determination of construction inputs i.e. price of materials and labour are not the area of legislation and thus such determination cannot be considered in the calculation of cost variation under clause 70.2 of FIDIC. Administrative decision based on market economy determines prices of construction inputs if and when necessary and such determination of prices in respect of construction inputs (material and labour) are considerable issues in calculating the price variation under clause 70.1 of GCOC, which is not applicable in the present contracts.
  7. That the work under the instant contracts constitutes mainly recycling of old pavement of the roads under the contracts and asphalt overlay thereafter i.e. mostly machine oriented and bituminous works. The prices of fuel and bitumen were increased during implementation of the work. The Ministry of Power, Fuel and Mineral Resources, Government of Bangladesh, through gazette notifications are effecting change in price of fuel from time to time. The changes in the price of bitumen were also effected by the said Ministry through office orders on the advice of Bangladesh Petroleum Corporation ( in short ‘BPC). Subsequently, the said Ministry, vide paragraph (b) of its memo No. Jalani/(op-1) BPC-29/2001 (part-1) 504 dated 21.11.2001 authorized BPC to fix internal sale price of bitumen depending on the international price of bitumen from time to time in future, Since then BPC has been publishing change in the price of bitumen. BPC by notification dated 18.07.2006 has increased the domestic price of bitumen from the price under its previous notification dated 09.11.2004 with reference to the memo No. Jalani (op-1) BPC-29/2001) (part-1) 504 dated 21.11.2001 of the Fuel and Mineral Resources Division, Ministry of Power, Fuel and Mineral Resources of the Government of the Peoples Republic of Bangladesh.
  8. That the contractor claimed price variation under clause 70.2 of FIDIC claming additional cost due to increase of price of fuel and bitumen referring the above notifications. Apart from bitumen and fuel the contractors in their claim have included increase in cost in other materials as well. The consultant rejected the additional claim of the contractors/ claimants due to increase of price of construction materials except the additional claim for fuel and bitumen purportedly under clause 70.2 and certified and forwarded the same for approval of the respondents/employer. The respondent /employer, vide memo No. Mate-4/02 394-CE dated 13.07.2008, conveyed non eligibility of contractor’s claims and thereby rejected the additional claim of the contractors considering the same being not entitled by the contractors under clause 70.2 of COPA. Subsequently the engineer, vide his memo No.2348 dated 15.07.2008 addressed to M/S. Nazir Basic Joint Venture, Contractor of Contract No.1, memo No.2349 dated 15.07.2008 addressed to M/S. OSE & CPC Joint Venture. Contractors No.2, memo No.2350 dated 15.07.2008 addressed to M/S Islam Trading Consortium Limited, Contractor of Contract No.3, memo No.2352 dated 15.07.2008 addressed to M/S. Bengal Development Corporation Ltd. Contractor of Contract No.5. conveyed the decision of the engineer to the contractors, hence the arbitration.
  9. That then an arbitration proceeding was started against the petitioner Roads and Highways Department (i.e. the respondent before the ICC Court of Arbitration) under the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC) and the dispute was heard by an Arbitral Tribunal comprising of a sole arbitrator Mr. Sheik Fazlur Rahman PE of House No.48B, Road No.35A, Gulshan, Dhaka-1212 Bangladesh. The Arbitral Tribunal by a decision rendered Final Award, on 27.11.2011.
  10. In the final award dated 27.11.2011 (Annexure-A to the petition), after giving description of the parties, reference has been made to the procedural history, the terms of reference (TOR), referred to at paragraph No. 6 of the award, settled on consensus of all parties to the arbitration, name of the learned Advocates representing the parties i.e. claimants and the respondent (petitioner before this court), the learned arbitrator has recorded in paragraph No. 7 of the award that, after examination of the pleadings of both the parties (claimants and respondent) and the statement of expert witness of both the parties it is observed that applicability of tender clause 70.2 is the main issue which is to be settled by the Arbitrator and there is no other issue and to this both the parties agreed. At paragraph No. 11 of the award, it has been recorded that the claimant No. 3 had lodged challenge vide a letter dated 29.12.2010 as to the appointment of the sole arbitrator and he, alongwith the claimants No. 1,2 & 4 and the respondents (the petitioner before this court) was requested by the Secretariat of the ICC court to offer their comments as per Article 11(3) of the ICC Rules of Arbitration in respect of the issue raised by the claimant No. 3. The sole arbitrator and claimants No. 1, 2 and 4 submitted their comments, but the respondent (petitioner in the case before this court) did not submit any comment. The sole arbitrator also refrained from holding further hearing in the interest of justice. Considering the representations and all facts, ICC International Court of Arbitration, in its session held on 27 January 2011, rejected the challenged lodged on behalf of claimant No.3. The claimant No. 3 thereafter did not participate in the hearing, but has not withdrawn it’s claim either. Similarly, at paragraph No. 17 of the award it has been recorded that it was decided in the Review Meeting held on 31st July 2010 that the only issue before the Tribunal was applicability of GCOC Clause 70.2 as amended by COPA and there was no other issue. It has further been recorded in the award at paragraph No. 13 of the award that an expert witness Mr. Ibne Alam Hasan made the deposition at the instance of the respondent (petitioner in this case) and the said expert witness was cross-examined by the counsel for the claimants No.1, 2 and 4. In paragraph No. 14 it has been stated that the hearing was recorded in audio CD (Compact Disk). It was decided, in the course of arbitration, that the parties would submit their closing statements simultaneously on 26 March 2011. Claimants No.1, 2, 4 and Respondent sought a time extension for the said step, which was allowed until 16 April 2011. After receipt of the closing statements on the said date, the same were exchanged and the proceedings were declared closed on 20 April 2011 as per Article 22(1) of the ICC Rules of Arbitration. The award has also referred to the claim and to the provisions of the original clauses 70.1 and 70.2 of the GCOC, as amended by COPA, and have also quoted the contents there of at paragraph No. 74 of the award and gave interpretation of the said clauses at paragraph No. 75 and 77 of the award. Paragraph Nos. 76 and 78 of the award contain the arbitration’s deliberation on the claim. Thereafter, narrating the summary of facts, the submission of the claimants and of the respondents the learned arbitrator has made reference to section 3 of the Petroleum Act, 1974 that empowers the Government to regulate and marketing of petroleum and has also referred to the provisions of section 6 of Bangladesh Petroleum Ordinance, 1976 narrating the functions of the BPC. He has also considered the definition of “local authority” given in section 3 (28) of General Clauses Act, 1897 and placed reliance upon the decision reported in 32 DLR(AD) 83 to arrive at the conclusion if the BPC is a ‘local authority’. In order to ascertain the meaning of the word ‘law’, the learned Arbitrator has referred to Article 152 of the Constitution and the decision reported in 47 DLR 309. In the premise recorded therein, the learned arbitrator has passed the award as follows:
  11. “It is hereby decided that in view of the reasons stated hereinabove, the claim of the three Claimants No.1, 2 and 4 has succeeded, and it is awarded that the said three Claimants are entitled to additional cost in accordance with Clause 70.2 of the GCOC as amended by the COPA. Since the claim of the Claimants No.1, 2 and 4 has succeeded, the claim of Claimant No.3 also succeeds for the same reasons.
  12. Each party shall bear its own legal and other costs in relation to this arbitration.
  13. The costs of arbitration fixed by the ICC Court as US$ 136,000 shall be borne by both sides equally.
  14. All other claims are rejected.”
  15. That the present petitioners thereafter filed an application before the ICC Arbitral Tribunal under Article 29(2) of the ICC Rules of Arbitration on 28.12.2011 seeking interpret-ation of the award. But ultimately Mr. Khong Chong Yee counsel, Secretariat of the ICC International Court of Arbitration, through a letter dated 17.4.2012 (Annexure-‘B’ to the petition) stated as follows:
  16. “Respondents requests a further extension of time of 8 weeks from 16 April 2012 within which to pay the additional advance on costs fixed by the Court at US$ 5000. We note that since the Court fixed the additional advance on costs on 19 January 2012, some four months ago, no payment of US$ 5000 has been received. In light of all the circumstances, Respondent’s Article 29 application is considered withdrawn.”
  17. The petitioners states, at paragraph No. 13 of the petition, that since the ICC Arbitral Tribunal final order in review application was received by this petitioner after 17.04.2012 the limitation at 60 days to be counted at least from 17.04.2012 instead of 27.11.2011 and this petitioner prays for accepting this application.   
  18. The opposite party No.4 has filed an application for rejection of the substantive petition alleging, amongst other, that the above application has been filed by the petitioner under Section 42(2) read with Section 43 of the Arbitration Act, 2001 for setting aside the award dated 27.11.2011 passed by an Arbitration Tribunal comprising of Mr. Sheikh Fazlur Rahman PE in favour of the opposite party Nos. 1 to 4 and against the petitioner in ICC International Court Arbitration Case No. 15642/JEM/MLK/CYK; that the arbitration arose from 4 (four) contracts of the Road Maintenance Component (RMC) under the Road Maintenance and Improvement Project awarded to four different contractors, being the opposite party Nos. 1 to 4, by the Roads and Highways Department (RHD) of the Ministry of Communication of the Government of Bangladesh. The parties did not object to the commencement of one arbitration proceeding in respect of all four contracts. The General Conditions  of Contract (GCOC) as amended by the Conditions of Particular Application (COPA) in the four contracts were common/similar. The arbitration was an “international commercial arbitration” within the definition given in Section 2(c) of the Arbitration Act, 2001 since the claimants in the proceeding included two joint ventures having parties incorporated in a country other than Bangladesh; that by the award, the Arbitration Tribunal ordered that the opposite party Nos. 1 to 4, i.e. the claimants in the arbitration proceeding, are entitled to additional cost in accordance with the Clause 70.2 of GCOC as amended by the COPA, that the parties are to bear their own legal and other costs and that the costs of the arbitration fixed at USS 136,000.00 shall be borne by both sides equally; that Clause 67 of the GCOC provided for Settlement of Disputes; Clause 67.3 provided, amongst others, that where the decision of the Engineer under the GCOC had not become final and binding and amicable settlement has not been reached, the dispute shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed under such Rule; that in the instant case, a reference to arbitration was made in accordance with Clause 67 to a sole arbitrator appointed as per the said Rules by the Court of Arbitration of the (ICC); that section 42(2) of the Arbitration Act, 2001 provides that the High Court Division may set aside any arbitral award made in an international commercial arbitration held in Bangladesh on the application of a party within sixty days from the receipt of the award; that the application filed by the petitioner does not state the date on which it received the award; hence, it shall be deemed that the award was received on the date on which it was made, i.e. 27.11.2011; that it may be noted that the application for setting aside the arbitration award dated 27.11.2011 was filed on 14.06.2012, i.e. 200 (two hundred) days after the said award was passed; that in paragraph No. 11 of the application, the petitioner has stated that it filed a review application before the ICC Tribunal under Article 29(2) of the ICC Rules of Arbitration on 28.12.2011, but that the said application was considered withdrawn by the ICC International Court of Arbitration as stated in its letter dated 17.04.2012 for the petitioner not having complied with an order of the said Court passed on 19.01.2012 for payment of additional costs; that the petitioner in paragraph No. 12 of the application has contended that since it received the final order in the review application after 17.04.2012, therefore limitation of 60 days for filing the application to set aside should be counted from 17.04.2012 instead of 27.11.2011. However, no prayer has been made for setting aside such order dated 17.04.2012; that while admitting the application by order dated 19.06.2012, the Hon’ble Court admitted it subject to any objection which may be raised by the opposite parties with regard to limitation at the time of hearing; that it is submitted that the application filed by the petitioner is liable to be rejected inasmuch that it has been filed beyond the limitation period prescribed by law for filing an application for setting aside an arbitration award rendered in an international arbitration proceeding; that it is submitted that there is no scope under the Arbitration Act, 2001 to construe a subsequent order recording withdrawal of an application for review of an arbitration award as extending the time within which any application for setting aside such arbitration award has to be filed; that it is submitted that the Arbitration Act, 2001 is a special law, and hence there is no scope for application of the provisions Section 5 of the Limitation Act, 1908 to extend the time for filing an application to have such award set aside.
  19. The petitioner (respondent in the ICC International Court of Arbitration) has filed an affidavit-in-opposition, sworn on 6.12.12, against the application for rejection of the substantive petition denying all the material allegations made in the application for rejection of the petition filed under section 42(2) of the Act and further stating that Article 29(2) of the ICC Rules for Arbitration provides for filing of an application before the secretariat of ICC for interpretation of any part of the award by the Tribunal within 30 days from receipt of the award, which is corresponding to the provisions of section 40(2) of the Arbitration Act, 2001 of Bangladesh. According to the provisions of Article 29(2) of ICC Rules the petitioner, on 28.12.2011, filed an application for clarification of the award dated 27.11.2011. In paragraph No. 1 of the said application it was clearly stated that the petitioner received the award on 29.11.2011 and the application dated 28.12.2011 was thus well within time as per Article 29 of the said ICC Rules. After receipt of the said application the Secretariat required the petitioner to remit US$. 5000/- as additional advance on costs subject to later readjustment in respect of the said application under Article 29 of the ICC Rules and pursuant to Appendix II to the said Rules. The petitioner took immediate step to pay the said amount but could not able to make the payment within time as fixed by ICC because, being a government entity the petitioner requires approval from the concerned authorities through several official process for sanction of fund and remitting foreign exchange abroad and that in order to complete the process of the governmental formalities regarding approval of fund and remittance of foreign exchange the petitioner needs more time to comply with the ICC instruction. Therefore, the petitioner further prayed for 8 weeks time to pay the additional advance on costs of US$. 5000/- by letter dated 13.04.2012 pin pointing the aforesaid difficulties. But the said application was rejected by the ICC by order dated 16.4.2012 declaring the application of the petitioner for clarification of award as withdrawn. It is further stated that as per the provision of Article 29(3) of the ICC Rules and section 40(4) of the Arbitration Act, 2001, the decision to correct or to interpret the award shall take the form of an addendum and shall constitute part of the award. Therefore, the said order dated 16.4.2012 of ICC deciding the application of the petitioner under Article 29 of the ICC Rules for interpretation of award has been culminated with the provision of ‘termination of the proceeding’ by declaring/ passing the final award under section 41 of the Arbitration Act, 2001. As such the period of limitation is to be computed from the date of finality of the award i.e. from the date of termination of the proceeding on 16.4.2012. The instant Arbitration application under section 42 has been filed by the petitioner on 14.6.12 i.e. within 60 days from the date of final award/termination of the proceeding dated 16.4.2012 and as such the same is very much within time; that it is submitted that the contention of the opposite party No. 4 that the provisions of Limitation Act is not applicable in the present case is not correct as because section 55 of the Arbitration Act 2001, makes the Limitation Act applicable as they apply to the court proceedings subject to the provisions of the Arbitration Act. Therefore, all the subm-issions made by the opposite party No. 4 in its application for rejection of the Arbitration application have no substance and misconst-rued and as such the said application is liable to be rejected.
 The matter has been taken up for hearing and the learned Advocate for the applicant-opposite party No.1 has drawn attention of the court to the admission order dated 19.6.2012, wherein it has been recorded that “Let this application be admitted for hearing subject to any objection which may be raised by the opposite parties with regards to limitation at the time of hearing of the application”. He has also made reference to the application for rejection of the substantive petition as well as to the affidavit-in-opposition filed by the petitioner against the application for rejection. Accordingly, all the parties have agreed that the issue regarding limitation shall be decided first, for the reason that if the substantive petition is found to have been barred by limitation then there is no scope to enter into the merit of the petition. Accordingly the issue as to whether the substantive petition is barred by limitation has been taken for decision as a preliminary issue.
 
At the out set, the learned Advocate for the petitioner Mr. A. F. Hassan Arif, appearing along with Mr. Md.Ashik Al Jalil, having read out the application for rejection of the substantive petition and the affidavit-in-opposition filed against the same as well as drawing my attention to the statements made in the substantive petition, first of all submits that the petitioner has received the award on 29.11.2011. Thereafter the petitioner has filed an application to the secretariat of the ICC International Court of Arbitration, as per Article 29(2) of the ICC Rules, on 28.12.2011, ‘for clarification of the Award dated 27.11.2011’. Article 29(2) of the ICC Rules make provisions for filing an application, within 30 days, seeking interpretation of the award passed by the Arbitral Tribunal. Accordingly, the petitioner has filed an application seeking interpretation of the award within 30 days time i.e. on 28.12.2011 from the date of the receiving the award. As such, he further submits, the step taken before the secretariat of the ICC Court of Arbitration for interpretation of the award was quite within time limit prescribed by Article 29(2) of the ICC Rules. Thereafter, the Counsel, Secretariat of the of ICC International Court of Arbitration, that owing to the respondent’s (petitioner’s) default to pay the additional advanced cost US$ 5,000/- fixed by the court, respondent’s Article 29 application is considered withdrawn, vide the letter dated 17.4.2012 reference 15642/JEM/MLK/CYK (Annexure-B to the substantive petition), although in affidavit-in-opposition this date has been erroneously written as 16.4.2012. However, the petitioner thereafter has filed the substantive application, under section 42(2) read with section 43 of the Act, on 14.6.2012, before the High Court Division and that was admitted on 19.6.2012. He further submits that the decision of the arbitral tribunal, Communicated by it’s letter dated 27.4.2012 (Annexure-B), in substance is to be treated as addendum to the award and the period of limitation shall start from 17.4.2012. Counting the date from 17.4.2012, he continues, the petitioner has filed the petition within 60 (sixty) from receiving the award days i.e. on 14.6.2012. Accordingly, he submits that the petition is not barred by limitation prescribed under section 42 sub-section (2) of the Act, that requires that an application to set aside the award should be filed within 60 (sixty) days from receiving the award. The learned Advocate further submits that even if the petition is otherwise treated to have been filed after 200 days from receiving the award on 29.11.2011, as claimed by the applicant-opposite parties, the same will not render this substantive petition barred by limitation in as much as sub-section (1) of section 55 of the Act provides that the provision of Limitation Act, 1908 shall be applicable in respect of any proceeding before this court. That being so, the petitioner has adequately explained the reason as to why and under what circumstances it has filed the petition on 14.6.2012. He also submits that the step taken before the Arbitral Tribunal, as per Article 29(2) of the ICC Rules, was taken bonafide by the petitioner and the delay took place in the process of termination of the arbitration proceeding on 17.4.2012 (Annexure-B) has been sufficiently explained in paragraph 4 of the affidavit-in-opposition. Hence, he also submits, that the delay occurred is liable to be condoned under section 5 of the Limitation Act read with section 55(1) of the Arbitration Act (the Act). However, the learned Advocate for the petitioner has frankly conceded that if the petition is barred by limitation then there is no scope to enter into the merit of the petition for the purpose of the disposal of the same. In reply to a query made from the Bench the learned advocate has also frankly conceded that it is difficult to fit the decision dated 17.4.2012 (Annexure-B) within the meaning or definition of ‘award’. In view of the submission made and in the facts and circumstances of the case, the learned Advocate emphatically submits, that the petition is not barred by limitation and it has been duly admitted by the court on 19.6.2012. Accordingly he has prayed that the petition for rejection has not merit and the same is liable to be rejected. 
 
The learned Advocate Mr. Rafiq-ul Haque, alongwith learned advocates Mr. Fahimul Haque and Mr. Marub Kabir, appearing for the applicant-respondent No.4, on the other hand, submits that, admittedly and as per record, the petitioner has received the award on 29.11.2011. After expiry of 29 days the petitioner has filed an application on 28.12.2011 before the secretariat of the ICC International Court of Arbitration, as per Article 29(2) of the ICC Rules, seeking interpretation of the award. It is also admitted by the petitioner that they have received a letter dated 17.4.2012 (annexed to the substantive petition as Annexure-B) whereby the Secretariat of the ICC International Court of Arbitration has communicated its decision that for non-payment of the additional cost being US $ 5,000, fixed by the ICC court of arbitration, even after expiry of 4 months, their application under Article 29(2) is considered withdrawn. Thereafter the petitioner claims that they have filed this application on 14.6.2012. In between 17.4.12 (the date of filing application under Article 29) to 14.6.2012 (the date of letter of the ICC Secretariat), the learned advocate goes ahead, 58 days time has elapsed. This 58 days time and previous 28 days time [gone before filing application under Articles 29(2) of the ICC Rules] counted together arrives at 86 days. At least this 86 days time has elapsed before 14.6.2012, on which the petitioner claims to have submitted its petition. As such, according to the petitioner’s own admission, the petition has not been filed within 60 days time prescribed in section 42 sub section (2) of the Act. In otherwords, the petition is not filed within 60 days of receiving the award on 29.11.2011, even if reliance is placed on the petitioner’s own admission. Indeed, the learned Advocate further submits, there is no scope to exclude the time that was wasted in the course of filing application under Article 29(2) of the ICC Rules on 28.12.2011 to 17.4.2012, because the decision of the secretariat of ICC International Court of Arbitration, communicated in their letter dated 17.4.2012 (Annexure-B), has not modified, amended or interpreted the award. By that letter dated 17.4.12 (Annexure-B) the application filed by the respondent-petitioner was only ‘considered withdrawn’ for non-payment cost fixed by the ICC Court of Arbitration, even after lapse of 4 months. Hence the intimation conveyed in letter dated 17.4.12 (Annexure-B) does not, in any way, affected the originality of the award, nor it can be treated as an award or it’s interpretation or modification, whatsoever. More so, the decision conveyed in letter dated 17.4.2012 that the Article 29(2) was ‘considered withdrawn’ was conveyed for the default of the petitioner in depositing the additional advanced cost US$ 5,000 on 19.1.2012. The petitioner cannot take advantage of their own default, nor they can interpret the same as an addendum to the original award. As such the entire period of 200 days, that has elapsed before filing this petition under section 42(2) read with section 43, is to be counted and  ex-facie the petition is barred by special period of limitation prescribed in sub-section (2) of section 42. In support of his contention the learned Advocate for the applicant-respondent No.4 has referred to the decision reported in 2011 (2)R.A.J. 142 (Bom): Amit Suryakant Lunavat Vs. Kotak Securities, Mumbai, and another decision reported in 7 BLT (HCD) 1999 page 265: Mol Enterprises Inc. Vs. Government of the People’s Republic of Bangladesh. The learned Advocate also submits that the application dated 28.12.2011 was filed by the petitioner under Article 29(2) of the ICC Rules for interpretation of the award and not for setting aside the award. As such, admittedly there was no cause of action to file any application for setting aside the award and if the petitioner had any cause of action at all to file a petition for setting aside the award then they would have filed this petition under section 42 (2) read with section 43 of the Arbitration Act within 60 days from 27.11.2011, the date of receiving the award, instead of filing the application under Article 29 (2) seeking interpretation of the award. There is no other forum, he continues, to file the petition for setting aside the award except that as provided for under section 42(2) of the Act. Since the petitioner has not come before this court with this application under section 42(2) read with section 43, within the period of 60 days, as prescribed in section 42(2) of the Act, so this petition is hopelessly barred by limitation and there is no cause of action for filing this petition. He also submits that because of the inordinate delay in the disposal of this matter the opposite parties have been prejudiced seriously due to financial hardship for non-payment of their claim and in the filed of trade and commerce time is an essence. Besides, the futile step taken by the petitioner, he submits, is bound to frustrate the spirit of introducing the scheme of ADR/ Arbitration in several statute as a matter of public policy for settlement of disputes within the soonest possible time. In that this view of the matter, the learned counsel has prayed for rejection of this substantive petition as barred by limitation and for want of cause of action as well as for appropriate order to implementing the award.
 
The learned Advocate Mr. Mohammad Mehedi Hasan Chowdhury, appearing for respondent No.2, while expressed his concurrence with the submissions advanced by the learned Advocate for the respondent No.4, has further added that the letter dated 17.4.2012 (Annexure-D) has been issued owing to the default of the petitioner in depositing the cost fixed by the court of Arbitration, within the time. The cost was due pursuant to filing of the application under Article 29(2) of the ICC Rules, seeking interpretation of the award. The aforesaid letter dated 17.4.2012 cannot be interpreted to mean that the ICC Court of Arbitration has rejected the application considering the same as unnecessary or impossible, to invoke the provisions of clause (c) of section 41(2) of the Act. As such the submission of the learned Advocate for the petitioner that the arbitration proceedings should be deemed to have been terminated on 17.4.2012 as per clause-(c) of sub-section (2) of section 41 of the Act is devoid of any substance and far from the facts on record. In fact, he further submits, the arbitration proceedings has been concluded or came to an end upon passing of the award on 27.11.2011 and the limitation period shall be counted from the date of receiving the award on 29.11.2011 by the petitioner, as admitted by the petitioner at paragraph No. 4 of their affidavit in opposition filed against the petition for rejection. Hence, limitation period of 60 days is to be counted from 29.11.2011, on which date the petitioner has admittedly received the award. In either circumstances the petition is barred by limitation as has been rightly pointed out by the learned Advocate for the applicant- respondent No.4, he also adds. If there were any scope to accept the submission of the learned Advocate for the petitioner that the time elapsed between 28.12.2011 to 17.4.2012 is to be excluded then, he continues, the petition is filed, at least after 88 days. Whereas, in fact it has been filed after 200 days. Next, referring to an unreported decision of this Division, passed in Arbitration Application case No.9 of 2013 and Arbitration Application Case No.10 of 2013, in which the Roads and High ways Department was opposite parties, this court has decided in a single judgment that the time limit of 60 days shall be counted from date the petition has been posted in the daily cause list for admission hearing, not from the date of swearing affidavit and in those cases both the petitions were found time barred since those were filed after expiry of 60 days period and the awards given in favour of the Roads and High way Department sustained. The same principle shall apply to the facts and circumstances of the present case. He, also submits that the award dated 27.11.2011 (Annexure-A to the petition) is very much clear and complete in itself. Hence, the respondent-petitioner did not pursue their application dated 28.12.2011 filed under Article 29(2) of the ICC Rules, nor deposited the cost fixed by the ICC court of Arbitration, in the result that application seeking interpretation of the award was considered withdrawn. As, such the petitioner should not deprive the Claimants from the fruit of the ‘award’ given in their favour by further lingering their claim. Accordingly he prays that the petition is liable to be rejected as barred by limitation and not filed bonafide.
 
The learned Advocate Mr. Fida M. Kamal, appearing alongwith the learned Advocate Dr. A.K.M.Ali for respondent No.1, has adopted the submissions made by the learned counsels for the respondent No.4 and respondent No.2 that the petition is barred by limitation in the facts and circumstances of this case considered with reference to the special periods of limitation prescribed in section 42(2) of the Act. 
 
I have heard the learned Advocates appearing for the petitioner, the learned advocate appearing for applicant-respondent No. 4 as well as the learned advocates appearing for the other respondents. I have perused the petition filed by the respondent No.4 for rejection of the petition filed for setting aside award, the affidavit-in-opposition filed by the petitioner against the said application alongwith the substantive application and the documents annexed therewith.
 
At the out set it should be recorded that whether the petition is barred by limitation or not is a mixed question law and facts. However, there are adequate materials on record as well as the statements made in the pleadings to decide about the factual aspect of this issue, whereas for legal aspect the provisions of section 42(2) and 55(1) of the Act is to be looked into.
 
Since all the parties have agreed and since it is expressly stipulated in the admission order dated 19.06.2012 of this court that “let the application be admitted, subject to any objection which may be raised by the opposite-parties with regard to limitation at the time of hearing”, therefore, I am of the opinion that the issues of limitation has to be taken first. In other words, the issues as to whether the petition is barred by limitation has been taken as the preliminary issue. Because, if the petition is found barred by limitation then the petition will be liable to be rejected on this ground alone.
 
It is admitted by the petitioner (respondent before the International Court of Arbitration) that the arbitrations arose from 04 (four) contracts of Road Maintenance Component (RMC). The request for arbitration was initially filed on behalf of five claimants, including AKT-Xerbel JV which withdrew from the arbitration with consent of all the parties. No party objected to commencing one arbitration in respect of all four contracts. The claimants and the present petitioner jointly nominated that Arbitration Tribunal consisting of a sole arbitrator which nomination was then confirmed by the Secretary General of the International Chamber of Commerce Interna-tional Court of Arbitration (ICC Court) on 3rd October 2008 pursuant to Article 9(2) of the ICC Rules of Arbitration. The Terms of Reference in the arbitration (“TOR”) were finalized and signed in a meeting with the claimants and the respondent on 31 March 2009 and were communicated to the ICC Court on 23 April 2009 pursuant to Article 18(2) of the ICC Rules of Arbitration.
 
Next, having considered the statements made in paragraph No.10 of the petition, I find that it has also been admitted by the petitioner that the final award was given on 27.11.2011. It has been admitted to by the petitioner, at paragraph No. 4 of the affidavit in opposition, that the petitioner has received the award on 29.1.2011. But, admittedly the petitioner has not filed this petition within 60 days from date of receiving the award, as prescribed by section 42(2) of the Act.
 
It has been stated in paragraph No.11 of the substantive petition as well as in paragraph No.4 of the affidavit-in-opposition of the petitioner that the respondent-petitioner had filed an application under Article 29(2) of the ICC Rules of Arbitration on 28.12.2011 for interpretation of the award. But the Secretariat of the ICC International Court of the Arbitration, through it’s letter dated 17.4.2012 (Annexure-B), has communicated to the respondent-petitioner that “Respondent’s requests to further extension of time for 8 weeks from 16.4.2012. Respondent requests a further extension of time of 8 weeks from 16 April 2012 within which of pay the additional advance on cost fixed by the court at US$ 5000. We note that since the court fixed the additional advance on costs on 19 January 2012, some four months ago, no payment of US$ 5000 has been received. In light of all the circumstances, Respondent’s Article 29 Application is considered withdrawn.” The learned advocate Mr. A. F. Hasan Arif, appearing for the petitioner, has frankly conceded that this intimation of decision, considering the application under Article 29(2) as withdrawn, does not fit in the definition or meaning of award. (emphasis added)
 
Apart from what is conceded, I am of the considered view that the decision commu-nicated in letter dated 17.4.2012 (Annexure-B) cannot be treated or termed as an ‘award’ for the reason that in that letter the ICC Secretariat has only informed that the petition filed under Article 29(2) of ICC Rule is ‘considered withdrawn’ for not depositing the cost on 1.9.2011, as fixed by ICC International Court of Arbitration. This decision was not formed by the Arbitrator appointed by the parties, nor the application under Article 29(2) was referred to the Arbitrator appointed by the parties, nor the decision dated 17.4.2012 decides or disposes of any dispute between the parties or otherwise modify, review or adds to the award originally passed. Hence, the award passed on 27.11.2011 retains its originality as has been held in 2011(2) R.A.J 142 (BOM), at paragraph 13, that “there is no justification, as contended, to accept the submission in view of the mandate of section 34 and considering the scheme and purpose of the Arbitration Act that because the application under section 33 of the Act was filed and it was rejected subsequently, therefore, the limitation period commenced afresh from the date of such decision of the award. In my view, it is contemplated only on a situation where the Arbitrator corrects or interprets and/or add or decide to add any additional claims and modified the award as only in such cases the original award losses its originality and therefore an application for setting aside the award needs to be filed within three months from the date of receipt of such corrected or modified award. Therefore the party who received the award after deciding the application under section 34(3) of the Act, may get the benefit of fresh commencement of limitation from the receipt of the modified and/or corrected award and not otherwise.” In 7 BLT (HCD) 265, it has been held that the application (under section 33 of the Arbitration Act, 1940) challenging the validity of the Award having been filed after a period of 30 days as enshrined in Article-158 of the Limitation Act, the same could not be entertained and section 5 of the Limitation Act was not at all applicable for condonation of delay”. I respectfully agree with the views expressed in these two cases decided under the Arbitration Act, 1940 and accordingly hold that the limitation period, in facts and circumstances of this case, shall be counted from the date of receiving the award on 29.11.2011 by the petitioner (as admitted in paragraph No. 4 of its affidavit in opposition filed against the application for rejection) and that the petitioner ought to have filed it’s petition under section 42(2) read with section 43 of the Act within 60 days from the date of receiving the award (i.e. within 60 days from 29.11.2011) as prescribed in subsection (2) of section 42 of the Act. Hence, for not filing the petition within 60 days from 29.11.2011 the same is clearly barred by special limitation prescribed under section 42(2) of the Act.
 
The words occurring in section 55(1) of the Act that “HC BC­el ¢hd¡e¡hm£ ü¡­f­r”, unambiguously and clearly indicates that the Limitation Act, 1908 will apply only subject to the special limitation prescribed in the Arbitration Act 2011 (the Act). Since, section 42(2) of the Act has prescribed special period of limitation, the Act itself being a special law, the petitioner ought to have filed its petition for setting aside the award within 60 days from 29.11.11, i.e. within 28.1.2012. For not filing the petition within 28.1.2012 the same is clearly barred by special limitation prescribed under section 42(2) of the Act.
 
Besides, the period elapsed between 28.12.2011 [the date of filing application under sub-article (2) of Article 29 of the ICC Rules] and 17.4.2012 [the date of the letter of the secretariat of ICC International Court of Arbitration] intimating that the Article 29 application of the respondent (petitioner in this case) is ‘considered withdrawn’ for not depositing the cost, shall not be excluded in counting the period of limitation. Because, the petitioner cannot be allowed to be benefited from its own default, least it will be a convenient excuse to any unscrupulous person to frustrate the special limitation by resorting to such tactics and because there is no proviso to section 42(2) of the Act making any room for exclusion of time on this or any other ground.
 
Moreover, the letter dated 17.4.2012 (Annexure-B) and the message it conveyed is neither an award nor modification, addendum or correction of the award. So, the award retains it’s originality and the time, for the purpose of limitation, is to be counted from 29.11.2011 and I also hold that the arbitration proceeding was terminated on 27.11.2011, the date of passing the award.
 
Besides, as alleged in paragraph No. 13 of the petition, the application dated 28.12.2011 filed under Article 29(2) of the ICC Rules is not a review application. This was an application for ‘interpretation of the award’ dated 27.11.2011, as admitted in paragraph No. 4 of the affidavit in opposition filed by the petitioner. Sub-Article (2) of Article 29 of the ICC Rules reads as follow: “Any application of a party for the correction of an error of the kind referred to in Article 29(1), or for the interpretation of an Award, must be made to the Secretariat within 30 days of the receipt of the Award by such party, in a number of copies as stated in Article 3(1). After transmittal of the application to the Arbitral Tribunal, the latter shall grant the other party a short time limit, normally not exceeding 30 days, from the receipt of the application by that party, to submit any comments thereon. If the Arbitral Tribunal decides to correct or interpret the award, it shall submit its decision in draft from to the court not later than 30 days following the expiration of the time limit for the receipt of any comments from the other party or within such other period as the court may decide.” As such, the application dated 28.12.2011 was not a review application, since Article 29(2) of the ICC Rules does not make any provision for ‘review’ of the award, nor the same was disposed of in the manner laid down in sub-article (2) of Article 29 of the ICC Rules. Hence, neither the said application dated 28.11.2012 of the petitioner, nor the decision/ letter dated 17.4.2012 (Annexure-B) is of any help to the petitioner to overcome the period of special limitation prescribed under section 42(2) of the Act, while on the admitted position of the petitioner the petition is filed after 86 (eighty six) days, as recorded herein before, though the facts on record shows that the petition was filed after 200 days. (emphasis added)
 
Next, having considered the judgment dated 31.07.2013 passed in two unreported cases, viz Arbitration Application No.9 of 2013 and Arbitration Application No.10 of 2013, in which two applications filed for setting aside of the award under Section 42(2) of the Act was rejected by this court as barred by limitation and it has been held in those 2(two) cases, disposed of by the single judgment, that the time limit of 60 days shall be counted from the date the applications have been posted in the daily cause list for admission hearing and not for the date of swearing affidavit. I see no reason to depart from the views taken in the judgment dated 31.7.2013 passed in Arbitration Application No.9 of 2013. Even though, the date of swearing affidavit is taken into consideration this petition is also hopelessly barred by limitation.
 
I also find substance in the submission of the learned Advocate for the applicant-respondent No.4 that there is no cause of action for filling this petition under section 42 sub-section (2) read with section 43 of the Act. Because, admittedly the petitioner has filed an application Article 29(2) of the ICC Rules seeking the interpretation of the award, not seeking to set-aside the award if the petitioner had any cause of action for filling an application to set aside award then they would have file this petition immediately after receiving the award on 29.11.2011, at least within 60 days there from, but they did not. Therefore, it can be safely concluded the petitioner had no cause of action to file this petition for setting aside the award. Moreover, the respondent-petitioner (Roads & High Ways) having not deposited the additional cost fixed by the ICC court of Arbitration, for hearing of the application filed under Article 29(2) of the ICC Rules of Arbitration seeking interpretation of the award dated 27.11.2011, the submission of the learned advocate for the petitioner that the said application was filed bonafide can hardly make any favourable impression. I must refer to the decision reported in 44 DLR(AD) page 260: Rupali Bank Limited and other Vs. Tafazal Hossain and others, also referred to in the judgment dated 31.7.2013 passed while disposing of Arbitration Application No.9 of 2013 and Arbitration Application No.10 of 2013. In that case it has been held by the Appellate Division that “Jurisdiction of a Court goes to the very root of a matter brought before it and if the Court got no jurisdiction everything shall fall through. The Court who got no jurisdiction over a matter shall not get into the merit of the matter.” Accordingly I am of the view that although this court has jurisdiction to decide whether it has jurisdiction, however, once it has arrived at conclusion that the substantive petition is barred by limitation then it does not have jurisdiction to get into the merit of this matter.
 
In view of the deliberation recorded above, I am of the view that the application for rejection of the substantive petition has merit and the substantive petition is barred by limitation.
 
In the result the petition is allowed and the substantive petition is dismissed.
 
The order of stay passed at the time of admission of this application is hereby vacated and the award is restored. The petitioner shall take immediate steps towards marking payment as per the award, passed long back on 27.11.2011.
 
The parties will bear their respective cost.
 
Ed.

Reference: 4 LNJ (2015) 110.