The court's decision was influenced by the application of the prima facie test to determine the time-barred nature of the substantive claim and the justifiability of declining reference to arbitration.

JUDGMENT

Rohit B. Deo, J. - This application is preferred under Section 11 of the arbitration and Conciliation act, 1996 (act) for appointment of arbitrator. The gist of the averment in the application is that non-applicant 1 is an agent of the Indian Oil Corporation (IOC) and operates a petrol pump under the name and style 'M/s. Deven automobile' which is situated on Nagpur-Kalmeshwar Road. For diverse reasons, the non-applicant 1 was facing difficulties in operating the petrol pump and approached the applicant to take over the agency. Negotiations ensued, which culminated into an agreement dated 23.03.2010. Certain disputes arose, and the applicant instituted Special Civil Suit 585/2013 in which non-applicant 1 preferred an application under Section 8 of the act for referring the dispute to an arbitrator in view of the arbitration clause in the agreement dated 23.03.2010. The Civil Judge allowed the application under Section 8 of the act vide order dated 18.10.2014. The applicant approached the High Court in civil revision challenging the order of the Civil Judge whereby the parties were directed to refer the dispute to the arbitrator. The High Court rejected the civil revision application vide order dated 20.09.2017.

The applicant contends that since the order of the Civil Judge dated 18.10.2014 was confirmed, the applicant requested the non-applicant 1 to appoint an arbitrator with the consent of all the stake holders, and since the non-applicant 1 did not act, the applicant issued notice dated 13.04.2018 informing the non-applicants of the appointment of an arbitrator. The non-applicants did not comply with the request to contact the arbitrator named in the notice dated 13.04.2018, and hence the applicant is constrained to approach this Court under Section 11 of the act.

2. The non-applicant 1 has opposed the application under Section 11 of the act, inter alia contending that the application under Section 11 is hopelessly barred by limitation. It is submitted that the claim itself is time barred and it would be an exercise in futility to appoint an arbitrator. Similar contentions are raised in the affidavit-in-reply filed by the non-applicant 2 who additionally contends that there is no arbitrable dispute between the applicant and non-applicant 2.

3. The applicant has filed a rejoinder contending that the limitation for invoking the provisions of Section 11 of the act shall stand triggered only with the rejection of the civil revision application on 20.09.2017, and therefore, the application under Section 11 of the act is within limitation. The applicant contends that the time consumed in the disposal of the civil revision application will have to be excluded in view of the provisions of Section 14 of the Limitation act, 1963 (Limitation act).

4. I have heard Mr. Raju Dhoble, the learned counsel for the applicant, Mr. M. S. Sharma, the learned counsel for the non-applicant 1 and Mr. S. B. Mohta, the learned counsel for the non-applicant 2. Certain decisions are pressed in service by the learned counsel, which shall be considered to the extent relevant, and at an appropriate stage.

5. Mr. Raju Dhoble, the learned counsel for the applicant would advance submissions on the lines of the contents in the application and the rejoinder and in rebuttal Mr. M. S. Sharma and Mr. S. B. Mohta would emphasize that in view of the settled position of law, the application under Section 11 of the act is clearly time barred.

6. In view of the submissions advanced, two questions arise for consideration. The first question is when is the limitation triggered in the factual matrix and the second question is, if the limitation has otherwise expired, is the applicant entitled to the benefit of Section 14 of the Limitation act.

7. Mr. Raju Dhoble invites my attention to the decision of the Supreme Court in Bharat Sanchar Nigam Limited and another v. M/s Nortel Networks India Pvt. Ltd. Civil appeal Nos.843-844 of 2021 (arising out of SLP (C) No. 1531-32/2