The main legal point established in the judgment is that the limitation for filing an application under Section 11 of the Arbitration Act arises upon the failure to make the appointment of the arbitrator within a specific period from the notice invoking arbitration.

JUDGMENT

Ravi Shanker Jha, C.J. (Oral) - This application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (in short the Act) seeking appointment of an arbitrator has been filed by the applicant on 28.04.2017.

2. The claim is based on the fact that the applicant entered into an agreement with the respondents on 23.04.2004 for widening and strengthening on Dabwali Kalanwali via Desujodha Road K.M. 0.00 to 35.10 in Sirsa District. The work was to be completed within a period of twelve months, whereas it was completed on 31.05.2007. A dispute arose between the parties on account of the fact that an inquiry by the State Vigilance Bureau was conducted in respect of certain issues and, therefore, payment of the applicant was withheld. The applicant thereafter filed an application seeking appointment of an arbitrator by issuing a legal notice to the respondents on 11.04.2011 (Annexure P-3) pursuant to which the respondents sent a letter dated 28.04.2011 (Annexure R-1) asking the applicant to deposit 10% of the claim amount immediately well before the limitation period so that the arbitrator could be appointed. The communication clearly stated that in case the applicant failed to deposit the claim amount well before the limitation period, it would be responsible for the delay. Thereafter, several correspondences took place between the parties and the respondents continued to reiterate their stand on the deposit of 10% of the claim amount which was admittedly not deposited by the applicant. Ultimately, the applicant filed this application under Section 11 of the Act before this Court on 28.04.2017.

3. The preliminary objection raised by the respondents is that the application filed by the applicant seeking appointment of an arbitrator is barred by limitation on account of delay and laches and, therefore, deserves to be dismissed.

4. Learned counsel for the applicant in support of his submission that the application is not barred by limitation has relied upon the decision of the Supreme Court rendered in the case of M/s Mayavti Trading Pvt. Ltd. Vs Pradyuat Deb Burman, 2019 (8) SCC 714 to contend that the question of staleness of the claim or as to whether the claim made in the arbitration proceeding is barred by limitation or not cannot be or should not be decided in Section 11 proceedings and the said issue should be left to be decided by the arbitrator. It is contended that the issue in Section 11 proceedings is confined only to the extent of an arbitration agreement and for appointing an arbitrator. It is submitted that in such circumstances, the preliminary objection regarding delay and laches raised by the respondents deserves to be rejected and in terms of the arbitration clause, the arbitrator should be appointed. It is further submitted that the letter dated 28.04.2011 (Annexure R-1) sent by the respondents regarding deposit of 10% of the claim amount is also untenable in view of the law laid down by the Supreme Court in the case of M/s ICOMM Tele Ltd. Vs Punjab State Water Supply & Sewerage Board and another, 2019 (4) SCC 401.

5. Learned State counsel, appearing for the respondents, per contra has relied upon the decision of the Supreme Court rendered in Secunderabad Cantonment Board Vs M/s B. Ramachandraiah & Sons, 2021 (5) SCC 705 and Bharat Sanchar Nigam Ltd. Vs M/s Nortel Networks India Pvt. Ltd., 2021 (5) SCC 738 to contend that the issue involved in the present application is not regarding staleness of the claim, but as to whether the application under Section 11(6) is barred by limitation on account of delay and laches and as the Section 11(6) application is barred by limitation, it be dismissed.

6. I have heard the learned counsel for the parties at length. Evidently, the issue involved in the present case is as to whether the present application is barred by limitation. The law in that respect has been summarized by the Supreme Court in the case of Secunderabad Cantonment Board (supra), wherein the Supreme