This application is filed, under Section 11 of the Arbitration & Conciliation Act, 1996, for appointment of an arbitrator to resolve the disputes, referred to in the applicant's letter dated 27.06.2006, arising out of the agreement dated 31.01.2000.

2. The applicant, a registered partnership firm and a special class contractor, entered into an agreement with the respondent on 31.01.2000 for excavation and removal of overburden and production of Barytes Ore (ROM), loading, transportation, unloading and leveling at Mangampeta Barytes project, Mangampeta village, near Koduru railway station, Cuddapah district. The scheduled date of completion of the work, under the agreement of three years duration, was extended upto 08.03.2005. On completion of the work, and after receiving final payment on furnishing a "no claim certificate", the applicant, in their letter dated 27.06.2006, consolidated their claims for Rs. 22 crores with interest thereon. They requested the respondent to settle the disputes within thirty days or furnish a panel of three names to enable the applicant to consider one of them as the sole arbitrator. Thereafter the applicant, vide letter dated 16.11.2006, furnished a list of three names to the respondent requesting them to choose one as the arbitrator. Since the respondent did not appoint the arbitrator, the present application is filed.

APPLICATION UNDER SECTION 11: SCOPE OF ENQUIRY BY THE CHIEF JUSTICE'S DESIGNATE:

3. When approached with an application under Section 11 of the Act, the Chief Justice's designate has to decide his own jurisdiction and determine whether the applicant has approached the right High Court. He has to decide whether there is an arbitration agreement as defined in the Act, and whether the applicant is a party to such an agreement. He can also decide the question whether the claim is a dead one, or a long-barred claim that was sought to be resurrected, whether the parties have concluded the transaction by recording satisfaction of their mutual rights and obligations or by receiving final payment without objection and whether the applicant has satisfied the conditions under Section 11(6) of the Act for appointment of an arbitrator. It may, however, not be possible for him to conclusively decide whether the claim is one which comes within the purview of the arbitration clause. It is appropriate, therefore, that such questions along with the merits of the claims raised are left to be decided by the arbitral tribunal. (SBP & Co. Vs. Patel Engineering Ltd, 2006 (1) ALD 10 (SC) = (2005)8 SCC 618)

4. In examining the request for appointment of an arbitrator, it is well to remember that no issue would remain to be decided if the parties have recorded satisfaction of their mutual rights and obligations or the claim is a dead one. It is in this sense that the Chief Justice's designate has to examine whether there remains anything to be decided between the parties in respect of the agreement and whether the parties are still at issue on any such matter. It is only for the purpose of ascertaining whether the arbitral procedure should be started that the Chief Justice's designate has to record his satisfaction that there remains a live issue between the parties. Similarly on the question of limitation, which is a mixed question of law and fact, the Chief Justice's designate has to record his satisfaction that, prima facie, the issue has not become dead by lapse of time or that a party to the agreement has not slept over its rights beyond the time permitted by law to agitate these issues covered by the agreement. All that he has to do is to record his satisfaction that the parties have not closed their rights and the matter is not barred by limitation. (Shree Ram Mills Ltd. Vs. Utility premises (P) Ltd, (2007)4 SCC 599)

5. While examining an application for appointment of an arbitrator, the primary exercise is to decide whether there is an arbitrable dispute