ORDER :

In this application under Section 11 (5) & (6) of the Arbitration and Conciliation Act, 1996 (for short, “the 1996 Act”), the applicant prays for appointment of an arbitrator for adjudication of disputes between the parties arising out of work order dated 06.11.2011 issued to the applicant by the respondents. The nature of work under the said work order was to eliminate pilferage of imported coking coal/coke during transit from stockyards at Visakhapatnam Port Trust and Gangavaram Port Trust to Bokaro Steel Plant (BSL), Durgapur Steel Plant (DSP), Rourkela Steel Plant (RSP), Bhilai Steel Plant (BSP), ISP Steel Plant (ISP) and Durgapur Projects Limited (DPL).

2. According to the applicant, problem started during execution of the contract when the respondents stopped paying the bills raised by the applicant and despite request, respondents did not make payment, constraining it to file O.S.No.847 of 2014 on the file of the Metropolitan Sessions Judge-cum-I Additional District Judge, Visakhapatnam for recovery of the bill amounts, for which the respondents raised objection as to the maintainability referring to the arbitration clause in the work order. The District Judge passed an order on 17.10.2016 in I.A.No.405 of 2015 referring the parties to arbitration. However, despite representation, respondents did not take steps for appointment of an arbitrator and lastly the respondents addressed letter dated 15.12.2021 to the applicant stating that payments have already been settled in terms of the contract. The applicant, thereafter, issued a notice on 15.12.2021 invoking the arbitration clause, to which the respondents issued a reply on 10.01.2022 informing the applicant that if he furnishes no-objection certificate, his security amount will be released.

3. In the above backdrop, the applicant prays for appointment of an arbitrator by this court in exercise of powers under Section 11 (5) & (6) of the 1996 Act.

4. The respondents would challenge the applicant’s application and request for appointment of an arbitrator on the pleadings that the work order was issued on 23.12.2009 and in the course of the work order, the applicant committed breach of contract causing huge loss to the respondents by way of transit losses of coking coal and made attempts to cover up the lapses. The applicant raised false claims by addressing letter dated 03.04.2011 and, again, sent a letter on 14.05.2011 stating that he cannot continue the contract unless the bills are cleared. The respondents would refer to series of exchange of letters between the parties and raised a specific plea of the application being barred by limitation. It is stated that the applicant sent legal notice on 05.09.2011 demanding payment of Rs.1,35,23,000/-together with damages to the tune of Rs.25 lakh, to which the respondents sent a reply on 13.02.2012 denying the claim. The applicant, thereafter, filed O.S.No.847 of 2014 on the file of the V Additional District Judge, Visakhapatnam for recovery of amount with specific averment that the cause of action arose on 14.05.2011 when the contract was terminated. When objection was raised under Section 8 of the 1996 Act, objecting to the maintainability of the suit, the District Court allowed the application on 17.10.2016 referring the matter to arbitration. However, the applicant did not take any steps seeking appointment of arbitrator.

5. The applicant issued a notice on 15.12.2021 after six years seeking appointment of an arbitrator and, thereafter, the present application is filed on 30.06.2022.

6. Learned counsel for the respondent vehemently argued that this application is not maintainable as the same has been preferred after more than 3 years of accrual of cause of action on 14.05.2011, when the contract was terminated. According to him, in any case, the V Additional District Judge, Visakhapatnam, having allowed the respondent’s application under Section 8 of the 1996 Act on 17.10.2016, referring the parties to arbitration, the a