The court ruled that issues of limitation and jurisdiction are to be determined by the arbitrator, not by the court at the pre-reference stage under Section 11 of the Arbitration and Conciliation Act, 1996.

ORDER :

Deepak Khot, J.

The present application has been filed by the applicant under section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act of 1996') for appointment of an Arbitrator to resolve the dispute which arose between the parties pursuant to an agreement dated 28.1.2010 (Annexure A/2).

2. It is submitted by learned counsel for the applicant that a NIT was issued on 7.11.2009 in respect of work "Operation and Comprehensive maintenance of Electro- mechanical service at TE Building, RSU and S/Qtrs, Civil Lines, Balaghat, RSU, Bharveli and MBM Waraseoni". The applicant being the successful bidder has obtained the work and an agreement dated 28.1.2010 has been issued. It is submitted that despite the applicant had completed the work, the payment was not made, therefore, a representation dated 30.12.2013 (annexure RJ-4) was issued to the respondent/non- applicant to verify from the site and make necessary payment. In the representation it was stated that the work was completed on 1.11.2013. It is further submitted that the applicant had filed an application under section 9 of the Act of 1996 on 30.11.2011 (annexure RJ2), which was registered as Arbitration Case No.25/2011; but, the same was dismissed on the point that no interim relief as provided under section 9 can be granted as the matter is related to payment of the bill. It is further submitted that the final bill was sent vide bill dated 15.1.2014 (annexure A3). On 7.2.2015 the Sub Divisional Engineer forwarded the deviation statement to the Executive Engineer vide annexure RJ5. Again, a letter has been issued by the Sub Divisional Engineer to the Executive Engineer with regard to the recovery statement of the sites maintained by the applicant on 18.3.2016 filed as annexure RJ6. It was informed to the applicant that the final bills were submitted to the competent Authority BSNL Electrical Division, Bhopal, and the applicant is required to remain present for his signatures. Again, a letter has been sent by Executive Engineer to the Superintendent Engineer (Electrical) by which a request was made to hand over the unpassed bills to the applicant. Thereafter, the bills were passed, however, after making some deductions without any basis. The applicant has accepted the payment under protest. Again, the applicant has preferred representation dated 18.1.2017 with regard to the outstanding amount and demand in different heads. It is further submitted that in other contracts assigned to the applicant of the similar nature some dispute arose and the applicant had filed an application for appointment of an arbitrator in A.C.No.56/2017. In the said application also the facts were similar. The notice for invocation of arbitration was of the year 2017 and the objections of the non-applicants were also identical. This Hon. Court after considering all objections of the parties, had decided the said application for appointment of an Arbitrator vide order dated 16.4.2019, annexure RJ7. It is further submitted that the present case is exactly similar and identical to the facts of the earlier case. Thus, no different view can be taken.

3. Per Contra, refuting the submissions made by learned counsel for the applicant, learned counsel for the non-applicant has vehemently opposed the application on the ground that the application is time barred. It is submitted that the application ought to have been filed within three years from the date when cause of action arose. It is submitted that for the first time the cause of action arose in the year 2014 when the applicant had submitted an application dated 31.7.2014 and 2.9.2015 by which the applications were submitted for appointment of an Arbitrator. It is further submitted that the Hon. Apex Court in the case of BSNL and others Vs. M/s Nortel Networks India Pvt. Ltd. vide judgment dated 10.3.2021 in SLP (C) No.1531-32/2021 had decided the issue of limitation and on the basis of aforesaid legal propositio