A debtor's plea of limitation may be assessed at the constitution stage of arbitration proceedings, ensuring fairness in interim measures.

J U D G M E N T

ALEXANDER THOMAS, J.

The order under challenge in the instant Arbitration Appeal filed under Section 37 of Arbitration and Conciliation Act, 1996 is the impugned order rendered on 14.02.2022, by the First Additional District Judge, Ernakulam, in OP(Arb) No.214/2021 whereby the plea of the appellant/petitioner for pre-arbitral interim measures as envisaged in Section 9 of the Act have been denied by the said Court, on the ground that the very claims in the arbitration case of the appellant are barred by limitation.

2. Heard Sri.C.S.Ajith Prakash, learned Advocate instructed by Sri.Harris Moosa, learned counsel appearing for the appellant in the appeal/petitioner in the OP and Sri.R.Krishnakumar, learned Advocate appearing for the respondents in the appeal/respondents in the OP.

3. As indicated above, the grievance voiced in this appeal is directed against the refusal of the court below concerned in granting pre-

arbitral interim measures in terms of Section 9 of the Arbitration and Conciliation Act, 1996 on the ground that the very claims sought to be projected by the appellant/petitioner in his arbitration case are barred by limitation. We have passed an interim order on 21.06.2022 in this case granting interim relief for the prima facie reasons stated therein.

4. After hearing both sides on the previous occasion, we have suggested a course of action to both sides for their consideration. Then we noted that the respondents herein, are not prepared to co-operate for the constitution of the Arbitration Tribunal in terms of the agreement relied on by the appellant mainly on the objection of limitation. We then suggested that if the respondents are taking their stand, then obviously the remedy of the appellant would be to seek appointment of the Arbitration Tribunal in terms of the claimed agreement by filing requisite application before this Court under Section 11 of the Act and at that stage, a prima facie case regarding bar of limitation could be examined, if such an objection is raised by the respondents. This we said so, in view of the decision of the Apex Court in Vidya Drolia & Others v. Durga Trading Corporation2021 (2) SCC 1, wherein it has been held that a prima facie case of bar of limitation could be examined by this Court at the stage. But if there is an arguable case for the other side, regarding such objections of limitation etc, then ordinarily the matter may have to be referred to the Arbitration Tribunal. Still, even if the Arbitration Tribunal is constituted by the orders under , that will not in any manner deprive the affected party concerned to raise the plea of limitation which could still be raised before the Arbitration Tribunal concerned at the appropriate stage. Further certain other objections have also been raised by the respondents that the very arbitration agreement was executed at a time when the Arbitration Act, 1940 was in vogue and that arbitration proceedings were not commenced at any time prior to coming into force of the new 1996 Act and that therefore Arbitration proceedings in terms of 1996 Act is not maintainable in this case etc. This objection of the respondents is strongly opposed by the appellants by placing reliance on certain decisions. We need not get into those aspects. Hence, it is in the light of these aspects that we suggested that without prejudice to the contentions of the respondents, it may be open to the appellants to move this Court under for constitution of the Arbitration Tribunal and the objections regarding limitation etc of the respondents could be examined on a prima facie basis at that stage. Even if the Arbitration Tribunal is constituted by orders under , the plea of limitation bar could still be raised by the respondents in appropriate proceedings. Further that until this process of completing the process at the instance of the appellants, the ends of justice would be subserved, if the respondents may agree that they will not sell the subject pro