The court affirmed that an arbitration agreement's existence permits new arbitration despite prior dismissals, emphasizing limited judicial involvement under Section 11.

ORDER :

GAUTAM A. ANKHAD, J.

1. Disputes have arisen under an Agreement for Purchase of salvage material dated 29^th November 2011 (“Agreement”). The Applicant had paid a Security Deposit of Rs.51,38,000/- to the Respondent, which is the subject matter of legal proceedings including this one. After a round of Winding-up Petition being Company Petition No.269 of 2016 and a Commercial Summary Suit No.721 of 2018, this Court in the said Suit, by consent of parties, referred the parties to arbitration (first round). An award was passed on 6^th June 2022 by the Tribunal inter alia holding that the Applicant’s claims are barred by limitation (“Award”). The Applicant’s Section 34 Petition (Commercial Arbitration Petition No.305 of 2023) was allowed by this Court on 7^th February 2024 and the Award was set aside in its entirety. The Applicant filed Interim Application (Lodging) No.10052 of 2024 for correction of order dated 7^th February 2024. This was also rejected by the Section 34 Court by an order dated 11^th July 2024. The Applicant has now filed this Section 11 Application seeking appointment of an Arbitrator to adjudicate the same disputes that have arisen between the parties under the said Agreement (second round). After this Application was filed, the Applicant has also filed a Section 37 Appeal (Commercial Arbitration Appeal (Lodging) No.31017 of 2024) in which the following order has been passed on 26^th June 2024 :-

“1. Learned counsel for the appellant submits that the controversy involved in the instant appeal is squarely covered by the Constitution Bench decision of the Supreme Court in Gayatri Balasamy vs. ISG Novasoft Technologies Limited, reported in 2025 SCC OnLine SC 986.

2. Heard on the question of admission.

3. Issue notice to the respondent, returnable on 28^th July 2025.

4. Mr. Shah, learned counsel appears on behalf of the respondent and waives service of notice.”

2. Mr. Khandeparkar, learned counsel for the Applicant submits that it is open for the Applicant to re-initiate arbitration and begin the entire process once again even though the Applicant’s Section 37 Appeal is pending. He submits that the learned Arbitrator has held that although the Agreement is legal, binding and enforceable, the Applicant’s claims have been dismissed as being barred by limitation. Consequently, the Tribunal has held that the Applicant is not entitled to the refund of Security Deposit of Rs.51,38,000/-. Upon the Applicant’s challenge, the entire Award was set aside by the Section 34 Court. The second order dated 11^th February 2024 passed in the Section 34 proceedings recognizes that the Applicant has to start the arbitration proceedings de novo in the following terms :

“13. Further, this Court cannot in exercise of jurisdiction under Section 34 of the Arbitration Act modify an Award by allowing the Petitioner’s claim which is precisely what the present Application has called upon this Court to do. Although this results in an unfortunate circumstance, where though the Petitioner has succeeded on merits viz. Issue Nos.1, 2 and 3, being decided in its favour and the sole ground for setting aside the Petitioner’s claim is limitation which ground has been set aside, the Petitioner is unable to have its claim decided in its favour. The Petitioner would have to resort to de novo arbitration in respect of all the issues. However, as the law stands, this Court cannot modify an Award, but can only uphold or set it aside the Award.”

3. It is submitted that after passing of the above Section 34 order, the law on modification/severing the award was settled in Gayatri Balasamy Vs. ISG Novasoft Technologies Limited, 2025 SCC OnLine SC 986. He submitted that it is open f