The jurisdiction of a referral court under Section 11(6) is limited to determining the existence of an arbitration agreement. Unless a claim is ex-facie time-barred or non-arbitrable, issues concerning limitation or the merits of the claim must be left for determination by the Arbitral Tribunal.

JUDGMENT

1) The petitioner, through the medium of present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short “the Act of 1996”), has sought appointment of an independent Arbitrator for adjudication of disputes that have arisen between the parties.

2) As per case of the petitioner, pursuant to NIT bearing No.Mech/004 of 2008 dated 24.01.2008, it was allotted the work vide work order No.DGM/Mech/1215-20 dated 22.10.2008 for Drilling of Borewell for exploration of ground water through 500mm Diameter Borehole with ODEX/DTH/Reverse Rotary method at District Hospital, Baramulla and Sub District Hospital, Sopore at a cost of Rs.17,26,250/. It has been submitted that after allotment of the work, the petitioner completed the same and submitted final bill to the respondents for payment.

3) According to the petitioner, the amount in respect of the bills pertaining to works undertaken at District Hospital, Baramulla, was released whereas the amount in respect of the bills relating to works undertaken at Sub-District Hospital, Sopore, was not released by the respondents. It has been further submitted that even 5% of the security deposit of Rs.86,312/ has been retained by the respondents. The amount of unpaid bills in respect of the works executed at Sub-District Hospital, Sopore, is stated to be Rs.10.27 lakhs. It has been submitted that the respondents, despite verification of the works executed at Sub-District Hospital, Sopore, did not release the payment in favour of the petitioner solely on the ground that funds were not available.

4) It has been contended that the petitioner filed a writ petition bearing OWP No.547/2013 before this Court which came to be decided on 21.10.2020 holding that the same is not maintainable. However, it was left open to the petitioner to seek appropriate remedy.

5) According to the petitioner, there is an arbitration clause in the allotment order which provides for resolution of disputes through the mechanism of arbitration by appointment of two Arbitrators, one to be nominated by the Department and the other to be nominated by the petitioner firm. It has been submitted that the petitioner, vide its letter dated 09.11.2022 read with letter dated 15.06.2023, invoked the arbitration clause asking respondent No.1 to appoint the Arbitrator on behalf of the Department. However, when no action was taken by the respondents, the petitioner was compelled to file the present petition.

6) Reply to the petition stands filed by the respondents in which it has been submitted that the previous writ petition filed by the petitioner stands already dismissed by this Court, as such, it cannot again re-agitate the claim. It has been contended that in respect of the works executed by the petitioner at District Hospital, Baramulla, an amount of Rs.13.79 lakhs stands released in its favour. According to the respondents, the petitioner has not executed any work at Sub-District Hospital, Sopore, which is clear from the available records. It has been submitted that after a lapse of four years from the date of issuance of allotment order, the petitioner started asking for payment when the concerned officers had already superannuated from service.

7) According to the respondents, there is no sign of the petitioner having executed the work of Drilling of Borewell at Sub-District Hospital, Sopore, and, as such, it cannot lay claim on the basis of non-existent works. It has been contended that when the petitioner submitted its bills