( 1 ) ADMIT. The learned Advocate for the respondents waives service. By consent, heard forthwith.

( 2 ) THIS appeal arises from the order dated 10-1-2005 passed in Arbitration petition No. 451 of 2004. By the impugned order, the arbitration petition filed for setting aside the award made by the arbitration committee of the Stock Exchange has been dismissed.

( 3 ) THE challenge to the impugned order is on two grounds: firstly, that the learned single Judge failed to take note of the fact that the arbitration proceedings were sought to be initiated after the expiry of the period of limitation, as prescribed under the Bye-laws and secondly that the appellant had already paid a sum of Rs. 5,00,000/- to the respondents.

( 4 ) PERUSAL of the impugned order apparently discloses that the point regarding bar of limitation was not raised before the learned arbitrator and, therefore, the same being a mixed question of law and fact, the learned single judge has rejected the petition under section 34 of the Arbitration and conciliation Act, 1996, hereinafter called as "the said Act", which was to be filed on the said ground of bar of limitation. Secondly, the contention about the payment of Rs. 5,00,000/- to the respondents has been rejected as the records, based on which the award was passed, evidently disclosed that the sum of rs. 5,00,000/- was paid prior to the formation of the company to the two persons, who thereafter became the Directors of the said company and not to the respondent-company in spite of the admitted fact that the appellant was liable to pay the amount to the respondent-company.

( 5 ) AS regards the first ground of challenge, placing reliance in the decisions in the matters of Management of the State Bank of Hyderabad vs. Vasudev Anant bhide and others, reported in AIR 1970 SC 196 and Ramesh B. Desai and others vs. Bipin Vadilal Mehta and others, reported in (2006) 5 SCC 638, as also Bye-law 252 of the Bye-laws applicable to the parties, the learned Advocate appearing for the appellant submitted that in terms of Clause (2) of Bye-law 252, an arbitration proceedings ought to have been initiated within six months from the date of cause of action and the same having not been so initiated, the arbitrator had no jurisdiction to entertain the proceedings and the learned single judge failed to take into consideration this aspect of the matter. It was also sought to be contended that the Apex Court has clearly held that plea of limitation can be raised, even for the first time, at the appellate stage. The learned advocate appearing for the respondents, on the other hand, drawing attention to clause (2) of Bye-law 252 of the said Bye-laws, and more particularly to the third proviso thereto, submitted that the amended Bye-laws came into force from 4-6-2003 and the proceedings were initiated in September, 2003. Hence, they were within the period of limitation.

( 6 ) AS regards the second ground of challenge, attention was sought to be drawn to the copy of the statement of account of the respondents, prepared and based on the books of account maintained by the appellant and it was sought to be contended that the same reveal payment of Rs. 5,00,000/- to the Directors of the respondent-company. On the other hand, it is sought to be argued that admittedly the amount was paid prior to the formation of the company.

( 7 ) CONSIDERING the rival contentions on behalf of the parties to the proceedings, the following points arise for consideration:

(i) Whether the arbitration proceedings were initiated within the period of limitation prescribed under the Bye-laws? (ii) Whether the amount of Rs. 5. 00,000/- was paid to the respondent-company?

( 8 ) THE section 4 of the said Act provides that:

"4. Waiver of right to object:- A party who knows that - (a) any provision of this Part from which the parties may derogate, or (b) any requirement under the arbitration agreement, has not been complied with and yet proceeds with