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2023 (1) TMI 1259 - HC - Indian LawsPrayer for appointment of a sole arbitrator to adjudicate the disputes which have arisen between the parties - Section 11 of the Arbitration & Conciliation Act, 1996 - HELD HAT:- It is not a universal principle that every case calls for the appointment of an arbitrator and that any and all disputes should be decided by the arbitrator. The courts act as a doorkeeper where entry is permitted for all the disputes but the doorkeeper can restrict the entry if certain specific criteria as laid down in the aforementioned judgments are not met. Reliance can be placed upon the decision of the Supreme Court in DLF Home Developers Limited -v- Rajapura Homes Pvt. Ltd. & Anr. [2021 (9) TMI 1053 - SUPREME COURT] wherein it was clarified that this Court or a High Court, as the case may be, are not expected to act mechanically merely to deliver a purported dispute raised by an applicant at the doors of the chosen arbitrator. On the contrary, the Court(s) are obliged to apply their mind to the core preliminary issues, albeit, within the framework of Section 11(6-A) of the Act. Such a review, as already clarified by this Court, is not intended to usurp the jurisdiction of the Arbitral Tribunal but is aimed at streamlining the process of arbitration. Therefore, even when an arbitration agreement exists, it would not prevent the Court to decline a prayer for reference if the dispute in question does not correlate to the said agreement.” Reference can also be made to the apex court’s decision in BHARAT SANCHAR NIGAM LTD. & ANR. VERSUS M/S NORTEL NETWORKS INDIA PVT. LTD. [2021 (3) TMI 447 - SUPREME COURT] wherein the court held that adjudication of the limitation issue at the referral stage does not tantamount to stepping into the arbitrator’s jurisdictional territory. Whether the claims here are exfacie time barred and therefore, falls under the restrictive category of deadwood? - HELD THAT:- To determine the starting point of cause of action and ascertain the expiry of the limitation period, this Court finds it pertinent to refer back to the judgment of the Supreme Court in BHARAT SANCHAR NIGAM LTD. & ANR. VERSUS M/S NORTEL NETWORKS INDIA PVT. LTD. [2021 (3) TMI 447 - SUPREME COURT] wherein it made explicitly clear that a notice invoking arbitration must be sent by the claimant party within three years from the date on which the escalation claim is rejected. It is now well settled that the claims in the present petition are exfacie time barred. However, as a last ditch effort Mr. Mitra contended that since the respondent in its letter dated April 10, 2021 had themselves appointed the arbitrator, the question regarding the existence of any dispute does not arise anymore. In my view, limitation is not something to be decided by the consent between the parties, but it is something which is statutorily mandated and judicially enforced. If there is a boundary drawn by the legislature and enforced by the judiciary, parties cannot act outside of it on the grounds that their consent should be the primary consideration in such cases. While this Court accepts that appointment of arbitrator by the respondent is impermissible but that would not permit the parties to venture beyond the boundaries of limitation. Thus, it is patently clear that the claim giving rise to the present dispute is ex-facie time barred and falls within the limited category of deadwood. Resultingly, the reference to arbitration is hereby declined - application dismissed.
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