At the stage of appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996, the referral court’s scope of inquiry is limited to the prima facie existence of the arbitration agreement and its invocation, and it should not determine issues of limitation or arbitrability.

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JASGURPREET SINGH PURI , J. (Oral)

1. The present petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) seeking appointment of an independent Arbitrator to adjudicate the disputes and differences which have arisen between the parties.

2. Learned counsel appearing on behalf of the petitioner submitted that that there is an agreement between the petitioner and the respondents in the nature of a construction contract which contains a dispute resolution mechanism in Clause No.25 and as per Clause 25(v), it is provided that all the disputes or differences in respect of which the decision is not final and conclusive shall at the request of either party made in communication sent through registered A.D. post be referred for arbitration to a Sole Arbitrator. He submitted despite efforts having been made between the parties for settlement, the same have not been fruitful and the petitioner had issued a notice vide Annexure A-16 dated 17.02.2024 for invoking the aforesaid arbitration clause and a reply was received from the respondents vide Annexure A-17 dated 21.02.2024, wherein it was so stated that since the petitioner did not submit claim within six months, which was a condition for claiming and the claim is time barred, no such Arbitrator can be appointed.

3. Learned counsel submitted that the law in this regard is well settled that the aforesaid reason with regard to a time barred claim cannot become a ground for rejection of a petition under Section 11 of the Act because at the stage of reference under Section 11 of the Act, the Court only has to see the existence of the arbitration clause and invocation thereof and in the present case, both the aforesaid two conditions are in existence. The mere fact that the claim is belated would not become a ground for non-suiting the petitioner on the aforesaid reason for seeking reference for appointment of an Arbitrator in terms of the aforesaid agreement and the arbitration clause.

4. On the other hand, Ms. Shruti, Assistant Advocate General, Punjab submitted on instructions from Mr. Amit Sabharwal, Executive Engineer that there is no dispute with regard to existence of the agreement between the parties, which is in the nature of a construction contract, as well as the arbitration clause and it is also not disputed that the petitioner invoked the arbitration clause by issuing a notice vide Annexure A-16, to which the respondents have filed reply vide Annexure A-17. She submitted that however the objection of the respondent-State is that the claim which the petitioner wants to get settled through arbitration process is time barred claim and therefore, no Arbitrator can be appointed in this regard. She also submitted that in case any Arbitrator is appointed by this Court, then liberty may be granted to the respondents to take all the legally permissible pleas available to them including the objection of time barred claim in accordance with law before the learned Arbitrator at an appropriate stage.

5. I have heard the learned counsel for the parties.

6. The arbitration clause contained in the aforesaid agreement as well as the notice invoking the arbitration clause is not in dispute in the present case and rather admitted by the learned State counsel. However, to the objection which was raised by the learned State counsel that the claim made by the petitioner is time barred, this Court is of the considered view that the same objection cannot be sustained in view of the settled law.

7. It is a settled law that at the time of reference stage under Section 11 of the Act, the reference Court is only to see the e