JUDGMENT :

P.C.:

1. This is an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, “the Act”) whereby the applicant has prayed for appointment of an arbitral tribunal to adjudicate the disputes and differences which have arisen between the parties under the Articles of Agreement dated 29 December, 2014.

2. The relevant facts are: the applicant agreed to sell to the respondent commercial premises bearing Unit No. UGB 81 & 82, collectively admeasuring 506 sq. ft. (carpet area) equivalent to 47.00 sq. mtrs (carpet area) or thereabouts situated on the Upper Ground Floor of the building known as “Phoenix Paragon Plaza” for an amount of Rs.1,92,28,000/-. Although the respondent made some initial part payment, the balance payment was not forthcoming. The applicant, in these circumstances, made various demands as set out in paragraph 10 of the application which are stated to be by the applicant’s demand letters dated 06 June 2014, 21 June 2014, 26 June 2014, 02 July 2014, 12 July 2014, 28 October 2014, 03 December, 2014 and 24 December 2014. The respondent accordingly made a part payment of Rs.39,36,100/-.

3. On such backdrop, the respondent approached the applicant in December, 2014, when it was agreed between the parties that the Articles of Agreement be registered with the Registrar of Sub-Assurances at Kurla, Mumbai. Such agreement dated 20 December, 2014 was accordingly registered on 05 January, 2015. The respondent assured that after execution of such agreement, an amount of Rs.1 Crore shall be paid by the respondent to the applicant, however, the respondent failed to make such payment. The applicant, in these circumstances, by its letter dated 10 January, 2015, requested the respondent to make payment of the balance amounts. As no payment was forthcoming, the applicant by its notice dated 07 February, 2015 as addressed to the respondent, terminated the said agreement. It appears that after having terminated the agreement, the applicant did not take steps to claim any damages, in the event any losses were caused to the applicant by any breach of the agreement caused by the respondent or to seek any other relief as a result of such termination. Thus, the termination having taken place on 07 February, 2015, the cause of action for the applicant to initiate any proceeding arose on 07 February, 2015. The limitation under Article 55 or 59 of the Limitation Act as the case may be, to seek any relief arising as a consequence of termination would be three years from the date of termination.

4. It needs to be noted that after termination of the agreement, the applicant issued a public notice on 10 July, 2015 as published in the local newspapers i.e. Free Press Journal, Navshakti and a Urdu Newspaper, informing the public at large of termination of the said agreement between the applicant and the respondent. It can even be assumed that the starting point of the limitation is such public notice of termination.

5. Be that as it may, a perusal of the record indicates that almost for a long period of 6 years from the date of termination of the agreement, no steps whatsoever were taken by the applicant to assert/ claim any rights under the agreement which stood terminated on 07 February, 2015 and/or after the public notice dated 10 July, 2015, if the applicant was to be of the opinion, that the applicant had any claim against the respondent or for any other cause of action under the said agreement.

6. On 08 May, 2021 the applicant, for the first time, issued a notice to the respondent invoking the arbitration agreement, as contained in clause 74 of the agreement dated 29 December 2014, purportedly calling upon the respondent to refer the disputes and differences between the parties to arbitration. From a reading of said notice invoking arbitration, it appears that primarily the claim of the applicant was f