JUDGMENT :

1. This is an application under Section11 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) for appointment of an arbitrator. The petitioners, Mr. Ajit Kumar Saha and Sukhen Chandra Saha, are owners of a piece and parcel of land admeasuring about two cottahs and eight chittack lying and situated at Mouza Krishnapur, J.L. No.17, R.S. No. 180, Touzi No. 228/229 comprised in C.S. Dag No. 5083, R.S. Khatian No. 258, within the jurisdiction of Baguiati Police Station at Holding No. R/G/M/162/849 & R/G/M/103/2845 within the local limits of Ward No. 32 of the Rajarhat Gopalpur Municipality in the District of North 24 Parganas [hereinafter referred to as ‘the plot’].

2. The respondent no.1 is a partnership firm. Respondent no.2 [Mr. Sandip Sen] and no.3 [Mr. Arun Das] are partners in respondent no.1. They are hereinafter collectively referred to as ‘the respondents’.

Relevant Facts

3. The petitioners and respondents entered into a development agreement dated January 3, 2010 with respect to the plot [hereinafter referred to as the ‘development agreement’]. It was agreed that a four storied building would be built over the plot and the petitioners shall be entitled to get three residential flats on the first floor of the proposed building having carpet area of 750 sq. ft. each.

4. Pursuant to the development agreement, a registered general power of attorney was registered between the parties.

5. The petitioners issued a letter of demand dated December 19, 2012 to the respondents, pursuant to alleged breaches of contract. The petitioners also registered a deed of revocation of power of attorney between themselves dated January 8, 2013.

6. The petitioners instituted an application under Section 12 of the Consumer Protection Act, 1986 before the Learned District Consumer Disputes Redressal Forum at Barasat wherein they had prayed for various reliefs. The Learned Forum ruled in favour of the petitioners vide order dated October 24, 2013. This ruling was appealed before the Learned State Consumer Disputes Redressal Commission, West Bengal wherein the order dated October 24, 2013 was set aside and the matter was remanded back to be heard afresh by the Learned District Forum.

7. The petitioners instituted an application under Section 9 of the Arbitration and Conciliation Act, 1996 [hereinafter referred to as ‘the Act’] on April 30, 2014. In the same application, the Learned Court of Additional District Judge at Barasat was pleased to pass an interim order of injunction by directing the respondents to not carry out any further construction on the plot or dealing with the developed property.

8. The petitioners on June 16, 2014 [hereinafter referred to as the ‘first letter’] invoked the arbitration clause and requested the respondents to agree to the arbitrator as named in the letter. Thereafter, on October 28, 2014, the petitioners issued another letter [hereinafter referred to as the ‘second letter’] in favour of the respondents and intimated about the change of the name of the arbitrator.

9. Pursuant to lack of response by the respondents, the petitioners have filed the instant application [being A.P. 980 of 2017] on November 13, 2017 under Section 11 of the Act for appointment of an arbitrator.

Rival Submissions

10. Mr. Pinaki Dhole, appearing on behalf of the petitioners submitted the following arguments :

a. The petition is not time barred as the second notice’s date was sent on October 28, 2014 and the application was filed on November 13, 2017. The first notice should not be counted as it contained the name of the lawyer representing the respondents. The second notice should be factored into for calculation of the limitation period.

b. The law requires courts to only look into the existence of the arbitration agreement and nothing else. The point of limitation is for the arbitrator to decide.

c. The issue before the consumer forum are different from the disputes for which the arbitration has been sought for.

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