IMPORTANT POINT
Arbitration petition – Limitation – A claim which is time-barred cannot be resuscitated by taking recourse either to Sections 18 or 19 of Limitation Act.

JUDGMENT

Moushumi Bhattacharya, J.—The petitioner seeks appointment of an arbitrator. The application has been filed under section 11(6) of The Arbitration and Conciliation Act, 1996.

2. The respondent has taken a point of maintainability of the application on the ground that the application is barred under the laws of limitation.

3. The decision which follows is on the question of maintainability, that is, whether the present application can survive the objection on limitation. The dispute as presented to the Court

4. A Memorandum of Understanding (MoU) was entered into between the parties on 28.3.2011 whereby the parties were to disassociate themselves from each other’s businesses. In short, the petitioner was to resign from the respondent’s business and was to receive Rs. 1.50 crores from the respondent in return. Disputes arose as the petitioner did not receive this money and with regard to properties where the parties were to construct residential flats. The petitioner issued a notice invoking the arbitration clause in the MoU on 11.3.2014. The petitioner was served with an award on 01.6.2015. The petitioner challenged the award under section 34 of the 1996 Act before the learned Court at Alipore for setting aside of the award. The respondent preferred an appeal from the order passed by the Alipore Court in the petitioner’s section 9 application. The respondent was directed to deposit a sum of Rs. 1.50 crores by the Appeal Court which the respondent deposited on 30.3.2015. The respondent preferred another appeal from an order passed by the Alipore Court on 22.02.2019 which was disposed of by the Appeal Court by inter alia permitting the respondent to withdraw Rs. 1.50 crores by furnishing an equivalent bank guarantee of an equivalent amount. The learned Court at Alipore allowed the petitioner’s section 34 application by an order dated 28.9.2022 and set aside the award.

5. By a letter dated 9.4.2023, the respondent invoked the arbitration clause by way of a notice under section 21 of the Act. The petitioner sent a similar notice on 8.5.2023. The petitioner issued a second notice invoking the arbitration clause on 10.7.2023. The respondent disagreed with the choice of the petitioner’s arbitrators by way of a letter dated 17.7.2023. The respondent filed an application under section 11 of the Act on 19/05/2023 (AP/344/2023) which was dismissed for default on 09/08/2023. The petitioner filed the present application under section 11 of the Act on 17.8.2023.

6. The above facts are common to the submissions made on behalf of the parties.

7. There is little doubt that a dispute exists between the parties as to the implementation of the MoU dated 28.3.2011. While the petitioner states that the petitioner did not receive Rs. 1.50 crores from the respondent, the respondent says otherwise. The multiple notices issued by the petitioner and by the respondent for invocation of the arbitration agreement and the contested proceedings before the learned Court at Alipore and as well as Court would also contribute to this view.

8. The issue however is whether the disputes are ex facie barred by limitation.

9. Learned counsel appearing for the petitioner seeks to rely on section 43(4) of the 1996 Act and say that the entire period from 11.3.2014 (when the petitioner issued the first notice of invocation) to 28.9.2022 (when the petitioner’s section 34 application was allowed) would be excluded. Counsel submits that the first notice of invocation dated 11.3.2014 was within the period of limitation and that the entire period from that date till 28.9.2022 would get excluded by virtue of section 43(4) of the Act. Counsel relies on the respondent’s invocation notice of 9.4.2023 which records the respondent’s willingness to refer the disputes and differences to arbitration.

10. Counsel submits that the statement of the respondent in the notice dated 9.4.2023 as well as in its affidavit in AP 344 of 2023 would show that the disputes are alive between