JUDGMENT :

I. Mahanty, J.

1. Heard learned counsel for the respective parties.

2. The applicant has moved an application seeking appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as the 'Act of 1996'), claiming therein that certain disputes have arisen pursuant to an order placed by respondent vide Annexure-1 dated 13.07.1995.

3. It is submitted on behalf of the applicant that pursuant to the said order, the petitioner-applicant paid a sum of Rs. 2,25,000/- by cheque as 25% advance for supply of Solitaire Center Less Grinding Machine and balance payment of Rs. 7,35,000/- was made on 21.03.1996 under Annexure-6. The respondents have acknowledged the receipt of balance amount of Rs. 7,35,000/-. In this manner, it is submitted on behalf of the applicant that although the entire consideration for purchase of Solitaire Center Less Grinding Machine Model-OMV-8" was placed on the respondent and the entire consideration was paid, the respondent did not supply the machine nor have refunded the money to the applicant. Learned counsel for the applicant also placed reliance on Clause VII of Annexure-6 (invoice) given by the respondent which contains the following Arbitration Clause:-

"VII. ARBITRATION:

Any dispute whatsoever touching or arising out of the contract including any dispute arising out of resale, shall unless amicably settled be referred to arbitration in Jaipur by two persons residing in Jaipur one to be appointed by each party and the two arbitrators shall nominate or umpire residing at Jaipur before proceeding with the arbitration & the arbitration shall be in accordance with the law for the time being governing arbitrations in India. The arbitrators or umpire shall be entitled from time to time extend the time for giving the award with the written consent of the parties. Civil court of Competent Jurisdiction in Jaipur alone shall have jurisdiction."

4. Learned counsel appearing for respondent on the other hand submitted that the present application under Section 11 ought to be rejected on the ground that it is barred by limitation. It is further submitted that the alleged clause of arbitration relied upon by the applicant is not applicable in the present case because the contract was concluded independent of the invoice issued under the agreement. It is further submitted that invoice has not been signed by both parties and it cannot form part of the agreement. Learned counsel appearing for the respondent also placed reliance on a judgment of the Hon'ble Supreme Court in the case of Vidya Drolia & Ors. vs. Durga Trading Corporation (Civil Appeal No. 2402/2019) and submitted that it is the obligation of the Court before whom the issue of appointment of an arbitrator arises to consider at the outset whether the claim itself being raised is barred by limitation or not. Relevant paragraph 93 of the aforesaid judgment reads as under:-

"93. Section 43(1) of the Arbitration Act states that the Limitation Act, 1963 shall apply to arbitrations as it applies to court proceedings. Subsection (2) states that for the purposes of the Arbitration Act and Limitation Act, arbitration shall be deemed to have commenced on the date referred to in Section

21. Limitation law is procedural and normally disputes, being factual, would be for the arbitrator to decide guided by the facts found and the law applicable. The court at the referral stage can interfere only when it is manifest that the claims are ex facie time barred and dead, or there is no subsisting dispute. All other cases should be referred to the arbitral tribunal for decision on merits. Similar would be the position in case of disputed 'no claim certificate' or defence on the plea of novation and 'accord and satisfaction'. As observed in Premium Nafta Products Ltd., it is not to be expected that commercial men while entering transactions inter se would knowingly create a system which would require that the court should fir