M/ s Calyx Advance Real Est at e Pvt Lt d v. M/ s Geet a Developers

“ 14. Sect ions 43( 1) and ( 3) of t he 1996 Act ar e in pari m at eria wit h Sect ions 37( 1) and ( 4) of t he 1940 Act . I t is well- set t led t hat by virt ue of Art icle 137 of t he First Schedule t o t he Lim it at ion Act , 1963 t he lim it at ion period for r efer ence of a disput e t o arbit rat ion or for seeking appoint m ent of an arbit rat or befor e a court under t he 1940 Act ( see St at e of Orissa v. Dam odar Das [ ( 1996) 2 SCC 216] ) as w ell as t he 1996 Act ( see Grasim I ndust ries Lt d. v. St at e of Kerala [ ( 2018) 14 SCC 265 : ( 2018) 4 SCC ( Civ) 612] ) is t hr ee y ears fr om t he dat e on which t he cause of act ion or t he claim which is sought t o be arbit rat ed fir st arises.

15. I n Dam odar Das [ ( 1996) 2 SCC 216] , t his Court observ ed, relying upon Russell on Arbit rat ion by Ant hony Walt on ( 19t h Edn.) at pp. 4- 5 and an earlier decision of a t wo- Judge Bench in Panchu Gopal Bose v. Port of Calcut t a [ ( 1993) 4 SCC 338] , t hat t he period of lim it at ion for an applicat ion for appoint m ent of arbit rat or under Sect ions 8 and 20 of t he 1940 Act com m ences on t he dat e on which t he “ cause of arbit rat ion” accrued i.e. fr om t he dat e when t he claim ant first acquired eit her a right of act ion or a right t o r equire t hat an arbit rat ion t ak e place upon t he disput e concerned.

16. We also find t he decision in Panchu Gopal Bose [ ( 1993) 4 SCC 338] relevant for t he purpose of t his case. This was a case sim ilar t o t he present set of fact s, wher e t he pet it ioner sent bills t o t he respondent in 1979, but paym ent was not m ade. Aft er an int erval of a decade, he sent a not ice t o t he r espondent in 1989 for refer ence t o arbit rat ion. This Court in Panchu Gopal Bose [ ( 1993) 4 SCC 338] observ ed t hat in m ercant ile refer ences of t his kind, it is im plied t hat t he arbit rat or m ust decide t he disput e according t o t he exist ing law of cont ract , and every defence which would have been open t o t he part ies in a court of law , such as t he plea of lim it at ion, would be open t o t he part ies for t he arbit rat or's decision as well. Ot herwise, as t his Court obser ved : ( SCC p. 344, para 8) “ 8. … a claim for br each of cont ract cont aining a reference clause could be brought at any t im e, it m ight be 20 or 30 years aft er t he cause of act ion had arisen, alt hough t he legislat ure has pr escribed a t he enforcem ent of such a claim in any applicat ion t hat m ight be m ade t o t he law court s.” t hr ee year s lim it of

17. This Court furt her held as follows: ( Panchu Gopal Bose case [ ( 1993) 4 SCC 338] , SCC pp. 345- 46, paras 11- 12) t he period of “ 11. Ther efor e, t he com m encem ent of an arbit rat ion runs from t he dat e on which, had t here been no ar bit rat ion clause, t he cause of act ion would have accrued. Just as in t he case of civil act ions t he claim is not t o be brought aft er t he expirat ion of a specified num ber of y ears from t he dat e on which t he cause of act ion lim it at ion 3 accrued, so in t he case of arbit rat ions, t he claim is not t o be put forward aft er t he expirat ion of t he specified num ber of years fr om t he dat e when t he claim accrued.

12. I n Russell on Arbit rat ion…. At p. 80 it is st at ed t hus: ‘An ext ension of t im e is not aut om at ic and it is only grant ed if “ undue hardship” w ould ot her wise be caused. Not all hardship, how ev er , is “ undue hardship” ; it m ay be pr oper t hat hardship caused t o a par t y by his own default should be borne by him , and not t ransfer red t o t he ot her part y by allowing a claim t o be reopened aft er it has becom e bar r ed.’ ” ( em phasis supplied) 5 1 . Having t raversed t he st at ut ory fram ework and case law, we are of t he clear view t hat t here is no doubt as t o t he applicabilit y of t o arbit rat ion t he Lim it at ion Act , 1963 proceedings in general and t hat of Art icle 137 of t he Lim it at ion Act , 1963 t o a pet it ion under Sect ion 11( 6) of t he Act , 1996 in part icular. Having held t hus, t he next quest ion t hat falls for our det erm inat ion t he present pet it ion seeking appoint m ent of an arbit rat or is barred by lim it at ion. is whet her 5 2 . The det erm inat ion of t he aforesaid quest ion is an exercise involving bot h law and fact s. As is evident from Art icle 137 of t he Lim it at ion Act , 1963, t he lim it at ion period for m aking an applicat ion under Sect ion 11( 6) of t he Act , 1996 is t hree years from t he dat e when t he right t o apply accrues. Thus, t o det erm ine whet her t he present pet it ion is barred by lim it at ion, it is necessary t o ascert ain when t he right t o file t he present pet it ion under Sect ion 11( 6) of t he Act , 1996 accrued in favour of t he pet it ioner.”

3. I n view of t he above law, t his Court is of t he considered opinion t hat t his Arbit rat ion Applicat ion is woefully barred by lim it at ion, and is, accordingly, rej ect ed. As a sequel t heret o, t he m iscellaneous pet it ions, if any pending, shall st and closed. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ G. N A REN DA R, C.J. Dt : 10 t h June, 2025 Rahul RAHUL PRAJAPAT I DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=aa4fa3bee6691397758b14516ed3 e66e61bf4c848741983ed8c39e4145cf1dab, postalCode=263001, st=UTTARAKHAND, serialNumber=303B55CC3063D34AC45BF8 A192FCAD15C390A1AAD7B39857D2540AE 4C28A4898, cn=RAHUL PRAJAPATI 4