BHAGWAN DAS KOTHARI AND ORS vs CHITRITA DEY AND ORS

IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE

RESERVED ON: 05.05.2026
DELIVERED ON: 14.05.2026

PRESENT:

THE HON’BLE MR. JUSTICE GAURANG KANTH

AP 3 OF 2026

BHAGWAN DAS KOTHARI AND ORS

VERSUS

CHITRITA DEY AND ORS.

Appearance: -

Mr. Shuvasish Sengupta, Adv.
Mr. Lalit Baid, Adv.
Mr. Akash Munshi, Adv.
Mr. Tamoghna Saha, Adv.
Ms. Sanjana Shaw, Adv.
Mr. Kuldeep Das, Adv.
.…………………….. for the Petitioner

Mr. Aniruddha Chatterjee, Sr. Adv.
Mr. Kushal Chatterjee, Adv.
Ms. Sayanti Nandy, Adv.
….……. … for the Respondent


JUDGMENT

Gaurang Kanth, J. :-

1. The Petitioners have preferred the present petition under Section 11(6) of
the Arbitration and Conciliation Act, 1996 seeking appointment of an
arbitrator for adjudication of the disputes and differences alleged to have
arisen between the parties out of and in connection with the Agreement for
Sale dated 30.03.2015.
2. The facts leading to the filing of the present petition are as follows.
3. Respondent Nos. 2 and 3, vide Agreement to Sale dated 24.04.2006,
purchased the flat being Unit No. 3B, measuring about 2245.43 sq.ft.

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super built-up area on the 3rd floor of premises No. 12, Shakespeare
Sarani, Kolkata – 700071, together with one car parking space at the
ground floor, from Respondent No. 1 as owner and Respondent No. 4 as
the Developer and Confirming Party. Possession of the said flat was
handed over to Respondent Nos. 2 and 3 on 09.06.2008. Later, pending
registration of the said flat in the name of Respondent Nos. 2 and 3, the
said Respondents approached the Petitioners for the sale of the said flat.
Accordingly, the Petitioners entered into an Agreement for Sale dated
30.03.2015 with Respondent No. 1 as the vendor, Respondent Nos. 2 and
3 as the original buyers, and Respondent No. 4 as the Developer, in
respect of the said flat. The total consideration for the said flat was agreed
at Rs. 2,45,00,000/-. According to the Petitioners, the entire sale
consideration was paid and possession of the said flat was handed over to
them in the year 2015 itself.
4. It is the case of the Petitioners that under Clause 5.1 of the said Agreement
for Sale, Respondent Nos. 1 and 4 were required to complete the sale and
execute the conveyance in favour of the Petitioners within 15 days of the
vendor and the Developer being ready, willing and able to execute and
register the conveyance deed. However, according to the Petitioners, the
execution and registration of the conveyance deed were deferred from time
to time on various grounds.
5. The Petitioners have stated that Respondent No. 4 forwarded a draft
conveyance deed, though certain clauses contained therein were objected
to by the Petitioners, resulting in several meetings and exchanges between
the parties. According to the Petitioners, the issues remained unresolved.
The Petitioners have further alleged that conveyance deeds in respect of

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several other flats in the said premises were also not executed, as a result
whereof the flat owners were unable to constitute a flat owners' association
or obtain access to the accounts and records relating to the maintenance
of the building. It is stated that Respondent No. 4 continued to manage
and maintain the building premises, however, vide letter dated
17.08.2023, intimated that it would not be continuing with the
maintenance activities beyond 30.08.2023.
6. The Petitioners have further stated that complaints were raised from time
to time by the Petitioners and other residents regarding maintenance and
upkeep of the building, which were denied by Respondent No. 4.
Thereafter, by a letter dated 06.08.2025, the Petitioners called upon the
Respondents to execute the conveyance deed. Respondent No. 4, by its
reply dated 19.08.2025, denied any liability to execute the conveyance
deed and stated that such obligation, if any, vested upon Respondent No.
1.
7. In view of the disputes and differences alleged to have arisen between the
parties, the Petitioners invoked the arbitration clause contained in Clause
9.1 of the Agreement for Sale dated 30.03.2015 by issuing a notice dated
10.09.2025 under Section 21 of the Arbitration and Conciliation Act, 1996.
By the said notice, the Petitioners proposed the name of Mr. Saptarshi
Banerjee, Advocate, as the Sole Arbitrator for adjudication of the disputes
between the parties.
8. The arbitration clause contained in the Agreement provides that disputes
and differences arising out of or relating to the said unit and/or the
agreement shall be referred to arbitration of Mr. Pankaj Shroff, Advocate,
of 7B, Kiran Sankar Roy Road, Calcutta – 700001, or such person as may

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be nominated by him. The Petitioners, however, contended that Mr. Pankaj
Shroff had acted on behalf of the Respondents and was therefore ineligible
to act as an arbitrator in the disputes between the parties.
9. The said notice dated 10.09.2025 was received by the Respondents.
Respondent No. 4 replied thereto by a letter dated 07.10.2025 reiterating
the stand taken in its earlier communications. According to the
Petitioners, since the disputes between the parties are arbitrable in nature
and no consensus could be arrived at regarding appointment of an
arbitrator, the present petition has been filed under Section 11(6) of the
Arbitration and Conciliation Act, 1996 seeking appointment of an
independent arbitrator.
Submissions on Behalf of the Petitioners
10. Learned Counsel appearing on behalf of the Petitioners submitted that the
present petition satisfies all the requirements under Section 11(6) of the
Arbitration and Conciliation Act, 1996. It was contended that there exists
a valid and binding arbitration agreement between the parties contained in
Clause 9.1 of the Agreement for Sale dated 30.03.2015. The disputes
raised by the Petitioners arise directly out of and in connection with the
said agreement and are therefore arbitrable in nature. Learned Counsel
further submitted that the Petitioners duly invoked the arbitration
agreement by issuance of a notice issued under Section 21 of the Act dated
10.09.2025 calling upon the Respondents to concur in the appointment of
an arbitrator. Despite receipt of the said notice, the parties failed to arrive
at any consensus regarding constitution of the Arbitral Tribunal. It was
further submitted that the named arbitrator under the agreement, namely
Mr. Pankaj Shroff, Advocate, having acted on behalf of Respondent No. 4,

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is rendered ineligible to act as an arbitrator in view of the provisions of
Section 12(5) of the Act. Accordingly, it was argued that this Court ought
to exercise its jurisdiction under Section 11(6) of the Act and appoint an
independent and impartial arbitrator for adjudication of the disputes
between the parties.
11. Learned Counsel further submitted that the disputes raised in the present
proceedings are not barred by limitation. It was contended that although
the Agreement for Sale was executed on 30.03.2015 and possession of the
flat was handed over upon payment of the entire sale consideration, the
Respondents continued to assure the Petitioners that the conveyance deed
would be executed and registered. It was submitted that the draft
conveyance deed was also circulated by Respondent No. 4 and several
meetings and exchanges took place between the parties regarding
modification of certain clauses therein. According to the Petitioners, the
cause of action continued subsisting as the Respondents never
unequivocally refused to perform their obligations under the agreement
until issuance of the reply dated 19.08.2025.

12. Learned Counsel submitted that the Petitioners had been continuously
requesting Respondent No. 4 to execute the conveyance deed and the
Respondents, from time to time, deferred the same on one ground or
another. It was argued that only upon receipt of the communication dated
19.08.2025, whereby Respondent No. 4 expressly denied its liability to
execute the conveyance deed, did a clear and unequivocal refusal arise,
thereby giving rise to the disputes between the parties. In such
circumstances, the invocation of arbitration by notice dated 10.09.2025
was within the prescribed period of limitation. In support of the said

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contention, reliance was placed upon the decision of the Hon'ble Supreme
Court in Ahmadsahab Abdul Mulla (2) v. Bibijan & Ors. reported as
(2009) 5 SCC 462 , wherein it was held that for a suit seeking specific
performance of a contract, irrespective of whether a date for performance
is fixed or not, limitation would commence from the date on which the
plaintiff has notice that performance has been refused. It was thus
contended that the disputes sought to be referred to arbitration cannot be
held to be ex facie barred by limitation.
Submissions on Behalf of Respondent No. 4
13. Learned Senior Counsel appearing on behalf of Respondent No. 4 opposed
the present petition and submitted that the disputes sought to be referred
to arbitration are ex facie barred by limitation and, therefore, no
refere11(6) of the Arbitration and Conciliation Act, 1996. It was contended
that the Agreement for Sale dated 30.03.2015 was executed between the
Petitioners as purchasers, Respondent No. 1 as vendor, and Respondent
No. 4 merely as the confirming party. Referring to Clause 2.3 of the first
Agreement dated 24.04.2006, Learned Senior Counsel submitted that the
conveyance deed was required to be executed simultaneously with delivery
of possession of the flat and the agreement specifically provided that in the
event the conveyance deed was not executed at the relevant point of time,
the responsibility for the same would lie solely upon the purchasers.
According to Respondent No. 4, the original owners, being Respondent
Nos. 2 and 3, admittedly took possession of the flat in the year 2008 itself
but failed to have the conveyance deed executed contemporaneously
therewith. As such, the cause of action, if any, arose in the year 2008 and

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the present claims raised after almost eighteen years are hopelessly barred
by limitation under Article 54 of the Schedule to the Limitation Act, 1963.
14. Learned Senior Counsel further submitted that in proceedings under
Section 11(6) of the Act, the Court is empowered to examine whether the
claims sought to be referred are ex facie time-barred. It was argued that
where the claims are clearly and manifestly barred by limitation, the Court
ought not to refer the disputes to arbitration. In support of the said
contention, reliance was placed upon the judgment of the Hon'ble Supreme
Court in Arif Azim Co. Ltd. v. Aptech Ltd. reported as (2024) 5 SCC
313 , particularly paragraph 92 thereof, wherein it was observed that the
referral court can refuse reference where the claims are demonstrably
barred by limitation. Reliance was also placed upon paragraph 39 of the
decision of the Hon’ble Supreme Court in Visa International Ltd. v.
Continental Resources (USA) Ltd. reported as (2009) 2 SCC 55 , to
contend that the Court exercising jurisdiction under Section 11(6) is not
denuded of the power to examine preliminary issues, including whether a
live and subsisting dispute exists between the parties.

15. It was accordingly submitted that the Petitioners, having failed to seek
enforcement of the alleged right within the prescribed period of limitation
reckoned from the date of possession and the alleged obligation to execute
the conveyance deed, cannot now seek to revive a stale and dead claim by
invoking the arbitration clause after an inordinate lapse of time. On the
aforesaid grounds, Respondent No. 4 prayed for dismissal of the present
petition.

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16. No separate arguments were addressed on behalf of Respondent No. 1 and
Respondent Nos. 2 and 3, who are respectively the vendor and the
erstwhile owners of the premises in question.
Legal Analysis
17. This Court has heard the learned Counsel for the parties, considered the
pleadings and documents placed on record, and applied its mind to the
judgments cited at the Bar.
18. The primary objection raised by Respondent No. 4 is that the claims sought
to be referred are ex facie barred by limitation and that this Court ought to
refuse reference on that ground. This objection is founded upon the two
pronged test specifically articulated in Arif Azim (supra), wherein the
Hon'ble Supreme Court held that the referral court must satisfy itself both
that the Section 11(6) petition is within limitation and that the underlying
claims are not ex facie dead claims barred by limitation as on the date of
commencement of arbitral proceedings, and that failure on either count
would justify refusal of reference.
19. This Court has carefully considered the said submission. The two-pronged
test in Arif Azim (supra) upon which Respondent No. 4 places reliance no
longer represents the correct position of law. The Hon'ble Supreme Court,
in SBI General Insurance Co. Ltd. v. Krish Spinning reported as [2024
SCC OnLine SC 1754] , has expressly reconsidered and authoritatively
clarified the second limb of the Arif Azim (supra) test in the light of the
seven Judge Bench decision in Re: Interplay Between Arbitration
Agreements under the Arbitration and Conciliation Act, 1996 and the
Indian Stamp Act, reported as 1899 [(2024) 6 SCC 1]. Since Respondent
No. 4 has specifically relied upon Arif Azim (supra) that have since been

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clarified, it is necessary to set out the operative clarification of the Hon'ble
Supreme Court in Krish Spinning (supra) in extenso:
"132. Insofar as our observations on the second issue are
concerned, we clarify that the same were made in light of the
observations made by this Court in many of its previous decisions,
more particularly in Vidya Drolia (supra) and NTPC v. SPML
(supra). However, in the case at hand, as is evident from the
discussion in the preceding parts of this judgment, we have had
the benefit of reconsidering certain aspects of the two decisions
referred to above in the light of the pertinent observations made by
a seven-Judge Bench of this Court in In Re: Interplay (supra).

133. Thus, we clarify that while determining the issue of limitation
in exercise of the powers under Section 11(6) of the Act, 1996, the
referral court should limit its enquiry to examining whether Section
11(6) application has been filed within the period of limitation of
three years or not. The date of commencement of limitation period
for this purpose shall have to be construed as per the decision in
Arif Azim (supra). As a natural corollary, it is further clarified that
the referral courts, at the stage of deciding an application for
appointment of arbitrator, must not conduct an intricate
evidentiary enquiry into the question whether the claims raised by
the applicant are time barred and should leave that question for
determination by the arbitrator. Such an approach gives true
meaning to the legislative intention underlying Section 11(6-A) of
the Act, and also to the view taken in In Re: Interplay (supra).

134. The observations made by us in Arif Azim (supra) are
accordingly clarified…….."

20. The position of law as it stands today is therefore clear and admits of no
ambiguity. The jurisdiction of the referral court under Section 11(6) is
confined to satisfying itself of the prima facie existence of a valid arbitration
agreement and to examining whether the Section 11(6) petition itself has
been filed within the three year period prescribed under Article 137 of the
Limitation Act, 1963, which period commences upon failure or refusal to
comply with the Section 21 notice, as held in Arif Azim (supra). The
second limb of the Arif Azim test requiring the referral court to examine
whether the underlying claims are ex facie dead and time-barred stands
expressly clarified and overruled by Krish Spinning (supra). That question
falls exclusively within the domain of the Arbitral Tribunal and any

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intricate evidentiary enquiry into limitation of the underlying claims at the
Section 11(6) stage is now impermissible.
21. This Court accordingly holds that the objection of Respondent No. 4 that
the underlying claims are barred by limitation is not available to be urged
at this stage and cannot constitute a ground to refuse reference. The
question whether the claims of the Petitioners are time barred involves
determination of disputed questions of fact including the nature and scope
of the obligations under the agreement, the conduct of the parties over the
years, the alleged continuing assurances, the circulation and negotiation of
the draft conveyance deed, and the precise point at which an unequivocal
refusal to perform was communicated. None of these questions can or
ought to be resolved in summary proceedings under Section 11(6). The said
question is accordingly left entirely open for decision by the learned
Arbitrator in accordance with law.
22. Turning to the requirements for exercise of jurisdiction under Section 11(6),
this Court is satisfied on the following:
23. First, there prima facie exists a valid and binding arbitration agreement
between the parties contained in Clause 9.1 of the Agreement for Sale dated
30.03.2015, which covers all disputes and differences arising out of or in
relation to the said unit and the agreement.
24. Second, the named arbitrator under the agreement, Mr. Pankaj Shroff,
Advocate, is alleged to have acted on behalf of the Respondents and is
therefore prima facie rendered ineligible to act as arbitrator by operation of
Section 12(5) of the Act read with the Seventh Schedule thereto. The
appointment mechanism under the agreement having thus failed, this
Court's jurisdiction under Section 11(6) stands squarely attracted.

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25. Third, a notice invoking arbitration was duly issued by the Petitioners
under Section 21 of the Act on 10.09.2025, which was received and
responded to by the Respondents, yet no consensus on appointment of an
arbitrator could be reached.
26. Fourth, the present petition has been filed within three years from the date
on which the right to apply for appointment accrued, being the date of
failure to comply with the Section 21 notice. The petition is therefore within
limitation.
27. All conditions precedent for exercise of jurisdiction under Section 11(6)
stand satisfied. This Court accordingly proceeds to appoint an independent
arbitrator for adjudication of the disputes between the parties.
28. Accordingly, this Court appoints Sounak Bhattacharya, (Mob. No.
9830420018), as the Sole Arbitrator to adjudicate all disputes and
differences between the parties arising out of and in relation to the
Agreement for Sale dated 30.03.2015. The appointment shall be subject to
compliance with the disclosure requirements under Section 12 of the
Arbitration and Conciliation Act, 1996. The learned Arbitrator shall be
entitled to fix remuneration in accordance with the Fourth Schedule to the
Act.
29. The learned Arbitrator shall be at liberty to consider and decide all
objections raised by any party, including the question of limitation of
individual claims and any question of maintainability, as preliminary
issues, after affording full opportunity of hearing to all parties. All
questions on merits are expressly left open. The arbitral proceedings shall
be conducted in accordance with the provisions of the Arbitration and
Conciliation Act, 1996.

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30. With the aforesaid directions, the present petition stands allowed


(Gaurang Kanth, J.)
SAKIL AMED (P.A)