2013 (4) TMI 333

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....he dispute arose between the parties. By letter dated 14th October, 2002 the applicants raised the demand upon the respondents. The respondents refuted the said claim. The applicants vide notice dated 7th December, 2002, to the respondents invoked arbitration agreement recorded in clause 8 of the agreement and suggested that the arbitrator may be appointed from the panel of Indian Council of Arbitration within 30 days. By another letter dated 12th April, 2006 to the respondents, the applicant requested that the matter be referred to arbitration and the person having technical background and experience in design and construction may be appointed as arbitrator. In response to the said notice the respondents vide their advocates letter informe....

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.... more particularly paragraph 11 thereof which reads thus : "11. By now it is well settled that exercise of power under Section 11(6) of the Act is judicial power. After the decision of this Court in SBP and Company v. Patel Engineering Ltd . MANU/SC/1787/2005 : AIR2006SC450 , the Designated Judge has to consider the claim of both the parties to the matter and pass a reasoned order. It is also well settled that existence of arbitration agreement is a condition precedent before exercise of powers under Section 11(6) of the Act. The preliminary matters to be considered by the court are (1) existence of arbitration agreement, (2) territorial jurisdiction, (3) whether there are live issues to be referred to the arbitrator, and (4) whethe....

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....n the date when notice for appointment of arbitrator is received by the respondent. It is not in dispute that the respondents received the notice dated 7th December, 2012 in the month of December, 2002 itself. In my view, when the notice invoking arbitration agreement is received by the respondents, the arbitration proceedings commences and limitation stops. There is thus no substance in the submission made by the learned counsel for the respondents that merely because the application under section11 is filed in the year 2009, the claims are barred by law of limitation. 6. As far as as the issue of limitation raised by the learned counsel regarding application filed under section 11 is concerned, the Constitution Bench of the Supreme Cou....