The main legal point established in the judgment is the interpretation of the limitation period for filing an application under Section 11(6) of the Arbitration Act, as clarified by the Supreme Court's judgments in Bharat Sanchar Nigam Limited and Another vs. Nortel Networks India Private Limited and Secunderabad Cantonment Board vs. B. Ramachandraiah and Sons.

JUDGMENT

Prakash Shrivastava, CJ. - This application under Section 11(6) of the Arbitration and Conciliation Act, 1996 has been filed by the applicant for appointment of arbitrator to resolve dispute between the parties.

2. The plea taken in the application is that on 21.05.2014 the applicant had entered into an agreement with the respondent for purchase of a flat and out of the total consideration of Rs. 26,00,000/-, the applicant had paid the part consideration of Rs.13,50,000/-, thereafter dispute had arisen between the parties, therefore, applicant had moved to the competent Court for interim protection in terms of the Section 9 of the Act being Misc. Case 143 of 2015 (Arb) and by order dated 03.06.2015 the competent Court had granted the interim protection which was extended from time to time and finally the interim order was vacated and the application under Section 9 was disposed of by order dated 15.02.2022. Applicant had sent the notice for appointment of arbitrator to the respondent on 08.02.2018 which was replied by the Counsel for the respondent on 16.02.2018 suggesting the names of two arbitrators. Since there was no consensus about the arbitrators, therefore, this application has been filed on 14.06.2022.

3. A preliminary objection has been raised by the learned Counsel for the respondent that the application has been filed after 3 years from the date cause of action arose and that limitation prescribed under Article 137 of the Limitation Act is applicable for filing an application under Section 11 of the Arbitration Act, therefore, after expiry of the said limitation, the application cannot be entertained.

4. Learned Counsel for the applicant has opposed the said preliminary objection.

5. I have heard the learned Counsel for the parties and perused the record.

6. Hon'ble Supreme Court in the matter of Bharat Sanchar Nigam Limited and Another vs. Nortel Networks India Private Limited reported in (2021) 5 SCC 738 has settled the distinction between the period of limitation for filing a petition seeking appointment of an arbitrator and the period of limitation applicable to the substantive claims made in the underlying contract. It has been held that the limitation for filing an application under Section 11(6) of the Act commences from the date on which the agreement precedure for appointment of the arbitrator can be said to have failed in terms of Section 11 (6)(a),(b) or (c). It has further been held that the period of limitation will begin to run from the date, when there is failure to appoint the arbitrator i.e. from the date of refusal by the other side or upon the failure to make the appointment within the period stipulated in the notice invoking arbitration whichever is earlier. It has been further held that since there is no limitation prescribed in the Act of 1996 for filing an aplication under Section 11, therefore, residual provision contained in Article 137 of the Limitation Act will be applicable. Hon'ble Supreme Court in the matter of Bharat Sanchar Nigam Limited and Another (supra) in this regard has held that:

'15. It is now fairly well-settled that the limitation for filing an application under Section 11 would arise upon the failure to make the appointment of the arbitrator within a period of 30 days from issuance of the notice invoking arbitration. In other words, an application under Section 11 can be filed only after a notice of arbitration in respect of the particular claim(s)/dispute(s) to be referred to arbitration [as contemplated by Section 21 of the Act] is made, and there is failure to make the appointment.'

7. It has further been held that:

'19. The reasoning in all these judgments seems to be that since an application under Section 11 is to be filed in a court of law, and since no specific Article of the Limitation Act, 1963 applies, the residual Article would become applicable. The effect being that the period of limitation to file an application under Section 11 is 3 years from the date of re