Skyline Aviation Private Ltd was engaged in a contractual dispute with AeroFleet Services Ltd and participated in arbitration proceedings. However, its counterclaims were struck off by the Arbitral Tribunal due to a sign

The facts of the given situation is based on the case of Airone Charters Private Limited v. Jetsetgo Aviation Services Private Limited decided by the High Court of Delhi on 12.10.2021. Delhi High Court, single judge, in this case has observed that the Petitioner's counterclaims were struck off before the Arbitral Tribunal (AT) on the ground of being filed at an extremely belated stage. Thereafter, after attempting several different courses of actions to agitate its counterclaims, the Petitioner finally filed the present Petition under Section 11 of the Arbitration & Conciliation Act, 1996, for referring its counterclaims to arbitration by the already constituted AT (presumably because they already knew the disputes very well). The Court observed as follows: The Claims of the Petitioner were prima facie appearing to be within limitation. In any case issues of limitation and res-judicata which were raised by the Respondent would be looked into by the Arbitrator once it was in seisin of the dispute. The right to legal redress is a fundamental right and cannot be obliterated altogether. Therefore, the right of the Petitioner to raise its counterclaim could not be destroyed altogether, even though initially it had been dismissed by AT being delayed, and as the time period of the arbitration was almost about to expire. The Petitioner has the choice of either raising its disputes as a counterclaim or by serving fresh notice of dispute ( State of Goa v. Praveen Enterprises ). Simply because the counterclaims were alive at the inception of the first arbitral proceedings and were required to be raised then, it cannot be said that they could not be permitted to be raised later, unless the arbitration clause was specifically worded in that manner. Based on the above, although the Court did not refer the disputes to the same AT, the Court appointed one of the arbitrators as the Petitioner's nominee, directed the Respondent to appoint its nominee and thereafter the two learned arbitrators to proceed to appoint the presiding arbitrator. The Court disposed off the petition with an observation that needless to say, if the parties would be agreeable to the claims being decided by the existing AT, that would be the eminently advisable course to pursue, which would aid in expeditious disposal of arbitral proceedings. More so, in this case, the doctrine of res judicata would not apply to the subsequent petition as the counter claim in the first instance was not adjudicated upon and merely rejected citing delay. In view of the above discussed case, it can be said that Arguments of Aerofleet Services may not be justified.