M.S. Ramachandra Rao, CJ
1. This Application is filed by the applicant under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’), seeking appointment of an Arbitrator to resolve the dispute between the parties arising out of Agreement dt. 14.02.2012, which contains an Arbitration Clause in Clause 6 thereof.
2. Admittedly, the applicant had issued a legal notice dt. 07.08.2023 requesting the respondent to agree for arbitration and the respondent had given a reply on 25.08.2023 denying to appoint an Arbitrator under the said Clause.
3. It is the contention of the learned Counsel for the applicant that after the applicant made a demand to the respondent on 21.10.2016 (Annexure R-1), there was an assurance under Annexure R-2 by the respondent that the parties would sit together to finalize the amount to be paid to the applicant and thereafter the respondent even paid a sum of Rs. 25 lacs to the applicant on 10.10.2019. According to the applicant the amount due as on date is in excess of Rs.40 crores.
4. Though, the learned Counsel for the respondent took a plea that the claim of the applicant is time barred, I am not inclined to go into the said fact and give findings.
5. It is settled law that the issue of limitation is a mixed question of law and fact, and in view of the amendment to Section 11 of the Act by introducing sub-Section (6-A), directing Court to confine itself only to the examination of the existence of an Arbitration Agreement, the said issue has to be left to the Arbitrator to be decided.
6. In this view of the matter, Justice Ravi Shanker Jha (Retd.), Former Chief Justice of High Court for Punjab and Haryana, is appointed as an Arbitrator to resolve the dispute between the parties, after his disclosure in writing is obtained in terms of Section 11(8) of the Act, and only after receipt thereof, shall his appointment, as an Arbitrator, come into force.
7. On his giving consent to arbitrate the dispute between the parties as an Arbitrator, Justice Ravi Shanker Jha (Retd.), Former Chief Justice of High Court for Punjab and Haryana, R/O, H.No. 913, Old B-68, Pandit Lajja Shankar Jha Road, Wright Town, Jabalpur-482001, shall enter into reference, and shall pass an award in accordance with law.
8. Copy of this order be forwarded to the learned Counsel for the parties as also to the learned Arbitrator. The learned Arbitrator so appointed shall be entitled to fee as per stipulation contained in 4th Schedule appended to the Arbitration and Conciliation Act, 1996.
9. The application is disposed of accordingly alongwith pending application(s), if any.
