The referral court's role under Section 11 of the Arbitration Act is limited to confirming the existence of an arbitration agreement, while substantive issues, including limitation, are to be resolved by the Arbitral Tribunal.

ORDER :

1. This is an arbitration application, which has been filed under Section 11(5) & (6) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator to resolve the dispute arisen between the parties out of the work order dated 29.12.2014. The copy of work order dated 29.12.2014 is available on record as Annexure-2 enclosed with the arbitration application which incorporates arbitration agreement in Clause 22 and 23 ad infra:-

"22. In the event of difference of dispute arising out of, under or in connection with this agreement, over the rights of obligation of parties hereto, the dispute or difference shall be referred to the Arbitration of an Arbitrator to be appointed on mutual agreement and provisions of the Arbitration and Conciliation Act 1996 shall be applicable to such Arbitration.

23. In case of any legal dispute, the jurisdiction shall be at Jaipur."

2. Heard counsel for both parties and perused the record.

3. It appears from the record that respondent-Company place a work order dated 29.12.2014 on the applicant-Company to engage its services for supply, installation, testing and commissioning of passenger elevators for the residential project of respondent viz. Shree Enclave at Niwaru Road, Jaipur and under such work order, four elevators were to be supplied by the applicant-Company.

4. Counsel for applicant contended that all four elevators have been supplied, installed and commissioned, for which invoices for total value of Rs.14,04,490/- were raised and thereagainst respondent made payment of Rs.6,02,472/- only, thus, for the balance payment of Rs.8,02,018/-, a demand notice dated 29.11.2019 was issued. This demand notice was replied by the respondent vide reply notice dated 30.12.2019 and on the ground of stating the supplied elevators as faulty material and failure to maintain the lifts, the payment of balance amount was refused. According to counsel for applicant, the last payment was made by the respondent in the month of July, 2019. Thereafter, applicant invoked the arbitration clause as contained in the work order by issuing a legal notice dated 18.03.2021 (Annexure-5) and suggested name of an Arbitrator but in the reply notice dated 05.04.2021, respondent did not agree on the name of proposed Arbitrator by the applicant, hence, thereafter, the present arbitration application has been filed on 30.01.2024 for appointment of an independent, impartial and neutral arbitrator by the Court.

5. Counsel for respondent has resisted the arbitration application, fundamentally raising the issue of limitation and it has been contended by the counsel for respondent that the claim of balance amount of Rs.8,02,018/- has become barred by the limitation and has turned into a stale claim, therefore, no arbitrator is required to be appointed to adjudicate such stale claim and the arbitration application has been prayed to be dismissed.

6. Having adverted to the rival contentions of counsel for both parties and perusal of the material placed on record, this Court is of, prima facie, opinion that the issue of limitation in respect of such claim is a mixed question of fact and law in the present case, which can be gone into and decided on merits by the Arbitral Tribunal after recording evidence of both parties and after considering the entire facts and circumstances along with documents and evidence produced on record before him.

7. As far as this Court is concerned, being a referral Court, the jurisdiction under Section 11(6) is limited and confined to look into the existence of a dispute between the parties and existence of an arbitration agreement resolve/ settle the same through Arb