Sri Rajendra Prasad Singh vs M/S Arch Construction Thru. Partner Sri Santosh Kumar Singh And 3 Ohters

AFR
Reserved On :- April 9, 2024
Pronounced On :- April 27, 2026
Uploaded On :- April 27, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - C No. - 10703 of 2025
Sri Rajendra Prasad Singh
…..Petitioner(s)
Versus
M/s Arch Construction Thru. Partner Sri Santosh Kumar Singh and
3 Others
…..Respondent(s)
Counsel for Petitioner(s) : Nirmit Srivastava, Tejas Singh,
Aakched Nath
Counsel for Respondent(s) : Ritesh Kumar Srivastava, Alok
Kumar Singh
Court No. - 3
HON'BLE SHEKHAR B. SARAF, J.
HON'BLE ABDHESH KUMAR CHAUDHARY, J.
SHEKHAR B. SARAF, J.: This is a writ petition under
Article 226 of the Constitution of India for the issuance of

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a writ of certiorari seeking quashing of the order dated
October 9, 2025, passed by a Sole arbitrator (hereinafter
also referred to as the ‘Arbitral Tribunal/respondent
no.3’) whereby the application filed by the petitioner
under Section 16 of the Arbitration and Conciliation Act,
1996 (hereinafter referred to as the ‘Act’) seeking
termination of arbitration proceedings was rejected by
Arbitral Tribunal on the ground that once the High Court
had appointed an arbitrator under the provisions of
Section 11 of the Act, the Arbitral Tribunal had no
jurisdiction to adjudicate on the limitation aspect for
appointing such arbitrator. In furtherance, the petitioner
prays for the issuance of a writ in the nature of certiorari
terminating the entire arbitration proceedings pending
before the Arbitral Tribunal.
FACTS
2. Factual matrix giving rise to this instant
petition is delineated below:
a. The petitioner and Santosh Kumar Singh
(hereinafter referred to as ‘respondent no. 2’) entered
into a partnership deed dated September 13, 2013 to
carry on business in the name of M/s. Arch Construction.
Subsequently, an altercation arose between the petitioner
and respondent no. 2 regarding payment in furtherance
of work carried out for the Power Grid Corporation of
India Limited. In this regard, the petitioner wrote a letter
dated November 7, 2015, to ICICI bank informing it of
the illegal operation of the account by the respondent no.
2, pursuant to which the aforesaid account in ICICI Bank
bearing account no. 066605000653 was frozen by the

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bank.
b. The petitioner alleges that thereafter respondent
no.2 opened another account in the name of Arch
Construction in Union Bank of India, Narai Bandh Branch,
Mau bearing account no. 4338010042423, by forging the
signature of his father, petitioner and Ajay Singh
(hereinafter referred to as ‘respondent no.4’). An
application was also made before the Power Grid
Corporation to release the payments for the work into the
aforesaid account. The petitioner later discovered that
the Power Grid Corporation of India Ltd. had made
payment of the outstanding amounts into the accounts
provided by respondent no.2.
c. Aggrieved by the aforesaid circumstances, the
petitioner lodged an FIR No. 0620 of 2017 under Sections
406, 420, 467, 468, 471 and 506 of the Indian Penal
Code, 1860 against respondent no.2. Subsequently, the
Investigating Officer filed a charge-sheet against
respondent no.2 under sections 420 and 406 of the
Indian Penal Code, 1860 (corresponding to Section 318
and Section 316 of the Bharatiya Nyaya Sanhita, 2023
(BNS)). Pursuant thereto, respondent no.2 was arrested
by the police.
d. Respondent no.2 had also issued security cheques of
the due amounts to the petitioner, however, the same
were dishonoured and as a result the petitioner filed a
Complaint Case number 10531 of 2018 on December 17,
2018 before the Competent Court, Lucknow.
e. In the meantime, respondent no.2 sent a legal
notice dated September 4, 2017 to the petitioner

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invoking arbitration clause to which the petitioner replied
vide letter dated September 10, 2017 advising
respondent no. 2 to approach the High Court seeking
appointment of an arbitrator for settlement of disputes
through arbitration.
f. In pursuance thereof, respondent no.2 filed an
arbitration application under Section 11 of the Act on May
31, 2023 before the High Court for the appointment of an
arbitrator in which this Court vide order dated December
7, 2023 has ex-parte proposed respondent no.3 as the
sole arbitrator.
g. Aggrieved by order dated December 7, 2023, the
petitioner filed a recall application before the High Court
and on the date of hearing, the petitioner's counsel was
unavailable, therefore, the High Court rejected the recall
application vide order dated July 11, 2025.
h. Upon receiving the consent of respondent no.3, the
High Court allowed the arbitration application vide order
dated August 5, 2025 whereby respondent no.3 was
appointed as the sole arbitrator and arbitration
proceedings commenced. During the course of the
arbitration, the petitioner was granted time to file
preliminary objections with regard to the maintainability
of the arbitration proceedings.
i. Accordingly, the petitioner filed an application under
Section 16 of the Act challenging the jurisdiction on the
ground of limitation in filing the application under Section
11 of the Act for appointment of an arbitrator which was
disposed of vide impugned order dated October 9, 2025
by the Arbitral Tribunal. The Arbitral Tribunal came to the

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finding that he had no jurisdiction to decide the said issue
of limitation since the High Court had referred the matter
to arbitration and as such it was concluded that the High
Court had already decided on the said issue of limitation.
j. Aggrieved by the aforesaid order passed by the
respondent no.3 rejecting the application filed under
Section 16 of the Act the petitioner has now approached
this Court.
CONTENTIONS OF PETITIONER:
2. Sri Tejas Singh and Sri Aakched Nath
appearing on behalf of petitioner have made the following
submissions:
a. Since the appointment of an arbitrator under Section
11(6) of the Act by the High Court is not specifically
barred by the Limitation Act, 1963 (hereinafter referred
to as ‘Act, 1963’) the residuary provision namely Article
137 to Schedule I of the Act, 1963 applies which bars the
initiation of proceedings in the court after the lapse of
three years from the date on which the cause of action
arises.
b. The cause of action arose on or before September 4,
2017, that is, from the date of invocation of arbitration
by sending legal notice by respondent no. 2, and
therefore the bar of limitation of three years commenced
from that date.
c. Respondent no. 1 ought to have filed the application
under Section 11 of the Act within the prescribed period
of three years; however, the same was filed after
approximately six years, rendering it highly time-barred.

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Consequently, the substantive claims of the respondents
are also barred by limitation.
d. Since both the application under Section 11 of the
Act and the underlying claim are time-barred, the
continuation of arbitration proceedings is illegal and
unsustainable.
e. Under Section 16(2) of the Act a plea regarding the
lack of jurisdiction of the Arbitral Tribunal may be raised
even if a party has participated in the appointment of the
arbitrator.
f. The learned sole arbitrator erred in rejecting the
petitioner’s application under Section 16 of the Act on the
ground that, post appointment of the arbitrator by the
High Court, the Tribunal has no jurisdiction to examine
limitation aspects even though the Arbitral Tribunal is
empowered to rule on its own jurisdiction under Section
16 of the Act including issue of limitation, which is a
preliminary issue before proceeding to adjudicate the
claim.
g. The issue of limitation involves mixed questions of
facts and law, which cannot be conclusively determined
by the High Court at the stage of proceeding under
Section 11 of the Act.
h. Arbitral Tribunal, observed that the respondent’s
plea of a continuing cause of action lacks merit, yet
rejected the petitioner’s application solely on
jurisdictional grounds. Hence the impugned order is self-
contradictory.
i. The finding of the Arbitral Tribunal that it can

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examine whether the claim is time-barred or not but
cannot determine as to whether the application under
Section 11 is time-barred or not is contrary to settled law
and renders the impugned order illegal and perverse.
j. The High Court may exercise its writ jurisdiction
against an order passed under Section 16 in cases where
a party is left remediless or where bad faith/illegality is
evident.
k. To buttress his argument counsel has placed
reliance on the following cases:-
(i) Bhaven Construction v. Sardar Sarovar
1
Narmada Nigam Ltd.
(ii) Ajay Madhusudan Patel v. Jyotrindra S.
2
Patel
3
(iii) Arif Azim Co. Ltd. v. Aptech Ltd.
4
(iv) BSNL v. Nortel Networks (India) (P) Ltd.
(v) Geo Miller & Co. (P) Ltd. v. Rajasthan
5
Vidyut Utpadan Nigam Ltd.
(vi) SBI General Insurance Co. Ltd. v. Krish
6
Spg.
(vii) Uttarakhand Purv Sainik Kalyan Nigam
7
Ltd. v. Northern Coal Field Ltd.
1 reported in (2022) 1 SCC 75;
2 reported in (2025) 2 SCC 147;
3 reported in (2024) 5 SCC 313;
4 reported in (2021) 5 SCC 738;
5 reported in (2020) 14 SCC 643;
6 reported in (2024) 12 SCC 1;
7 reported in (2020) 2 SCC 455.

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CONTENTIONS OF RESPONDENTS:-
3. Sri Ritesh Kumar Srivastava and Sri Alok
Kumar Singh appearing on behalf of the respondents
have made the following submissions:
a. An order passed by the High Court under Section 11
of the Act appointing an arbitrator is a ‘judicial order’
having statutory finality under Section 11(7) of the Act.
No appeal, including Letters Patent Appeal, lies against
such an order and the only remedy against such an order
is by way of a Special Leave Petition under Article 136 of
the Constitution of India before the Supreme Court.
b. Post the 2015 amendment, brought in force on the
recommendation of Law Commission Report No. 246, the
scope of judicial intervention under Section 11 has been
curtailed; however the nature of power exercised and the
order passed by the High Court under Section 11
continues to remain a judicial function.
c. Law Commission Report No. 246 refers to the role of
the High Court in appointing arbitrators as a form of
‘judicial intervention’.
d. The order passed by the High Court appointing the
arbitrator operates as res judicata between the parties
and cannot be re-agitated or reviewed in subsequent
proceedings.
e. The Arbitral Tribunal, being a creation of the High
Court’s order, cannot examine or sit in appeal over the
validity of the High Court’s judicial order, including on the
issue of limitation.

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f. Even assuming that the High Court passed the order
under Section 11 of the Act without examining the issue
of limitation, an order or decree passed beyond limitation
is not a nullity and remains binding unless set aside by a
Superior court. Since the order appointing the arbitrator
has not been challenged before the Supreme Court, it has
attained finality and remains legally valid.
g. Section 37 of the Act envisages remedy in the form
of an appeal for a party aggrieved by an order accepting
a plea that the arbitrator has no jurisdiction but a
combined reading of Sections 16(5) and 16(6) of the Act
enunciates that if a plea of lack of jurisdiction is rejected,
the arbitral tribunal must continue with the proceedings
and render an award, as the judicial interference at this
stage is barred by Section 5 of the Act.
h. There are continuing breaches of contractual
obligations hence, by virtue of Section 22 of the Act,
1963 the cause of action is continuous and the disputes
remain alive.
i. The respondent has dissolved the partnership firm
by notice, thereby, giving rise to fresh and subsisting
disputes requiring adjudication. Post-dissolution, the
respondent is entitled to seek rendition of accounts,
examination of financial records, and winding up of the
firm through arbitration. The cause of action for rendition
of accounts has arisen during the pendency of arbitration
and is intrinsically connected with the existing disputes.
j. It is in consonance with the objective of speedy and
efficient dispute resolution that all disputes, including
those that have subsequently arisen, be adjudicated by

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the same arbitral tribunal.
k. In view of the statutory bar and scheme of the Act,
the present petition challenging the order passed under
Section 16 of the Act is not maintainable.
l. To buttress his arguments, counsel has placed
reliance on the following cases:
8
(i) S.B.P. & Co. vs Patel Engineering Ltd.
(ii) Duro Felguera, S.A. v. Gangavaram Port
9
Ltd.
10
(iii) Ittyavira Mathai v. Varkey Varkey .
ANALYSIS
4. After hearing the arguments canvassed by the
learned counsel appearing on behalf of both the parties
and scrutinizing the materials placed on record, the
following issues arises for our consideration:
I. Whether the High Court under Article 226 of the
Constitution of India exercising its writ jurisdiction can
interfere in the interlocutory order passed by the sole
arbitrator under Section 16 of the Act?
II. Whether the High Court before appointing the
arbitrator under Section 11(6) of the Act is required to
adjudicate on the jurisdictional issue of limitation?
III. Whether the Arbitral Tribunal erred in law by not
adjudicating the preliminary objection as raised by the
petitioner relating to its jurisdiction under Section 16 of
8 reported in 2005 (8) SCC 618;
9 reported in (2017) 9 SCC 729;
10 reported in 1963 SCC OnLine SC 200.

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the Act on the aspect of limitation of the application filed
under Section 11 of the Act before the High Court?
5. The petitioner contends that the impugned
order passed by the Arbitral Tribunal is perverse and
illegal as the Tribunal while disposing of the application
filed under Section 16 of the Act observed that the
preliminary issue with regard to limitation cannot be
adjudicated by the Tribunal before proceeding with the
arbitration proceeding as only the High Court has
jurisdiction to decide on the limitation aspects before
appointing the arbitrator and once the High Court has
found the dispute as live and subsisting, has appointed
arbitrator in furtherance of it, the issue of limitation for
appointment of arbitrator cannot be further adjudicated
upon by the Tribunal. Moreover, the observation by the
Arbitral Tribunal that only the issue of limitation with
respect to the claim is required to be adjudicated by the
Tribunal is perverse.
6. Per contra, the learned counsel appearing on
behalf of respondents contends that the order appointing
the arbitrator, passed by the High Court under Section 11
of the Act is a final judicial order by virtue of Section
11(7) of the Act, and the only remedy against such an
order lies before the Supreme Court by way of a Special
Leave Petition under Article 136 of the Constitution of
India. The amendment of 2015, merely curtailed the
scope of judicial intervention without altering the judicial
nature of the order. Since the said order was never
challenged before the Supreme Court, it has attained
finality, operates as res judicata, and cannot be treated
as a nullity merely on account of limitation. The

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respondent further contends that since Sections 16(5)
and 16(6) of the Act mandate that upon rejection of a
jurisdictional plea, the Arbitral Tribunal shall continue
with the proceedings and make an award, no judicial
interference at this interlocutory stage is permissible
under Section 5 of the Act, and the present writ petition
is therefore not maintainable. Additionally, the
respondent submits that the disputes are still live and
subsisting by virtue of continuing contractual breaches
attracting Section 22 of the Limitation Act, 1963.
Moreover, since that the respondent has dissolved the
partnership firm by notice dated December 18, 2025,
gives rise to a fresh cause of action for rendition of
accounts which has accrued during the pendency of the
arbitration proceedings and which, in the interest of
expeditious resolution, ought also to be adjudicated in
the ongoing arbitration proceedings making it neither
expedient nor legally permissible to terminate the
pending arbitral proceedings.
7. One may keep in mind the fact that arbitration
is one of the methods of alternative dispute resolution
where parties themselves agree to refer their disputes to
a neutral third party known as the arbitrator. The
objective of arbitration is to provide speedy, efficient and
binding resolution of disputes that have arisen between
the parties with regard to their substantive obligations.
Redfern and Hunter on International Arbitration
encapsulated arbitration law succinctly as “it is to be
expeditious where the law is slow, cheap where the law is
costly, simple where the law is technical, a pacemaker
instead of stirrer-up of strife”. Arbitration acts as an elixir

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to disputes.
8. The Act was enacted to consolidate and amend
the law relating to domestic arbitration, international
commercial arbitration and enforcement of foreign
arbitral awards as also to define the law relating to the
conciliation and for matters connected therewith or
incidental thereto. It also brought orchestration to
domestic as well as international commercial arbitration
with the Model Law, the New York Convention and the
Geneva Convention.
9. The Act replaced the pre-colonial as well as
post-colonial laws such as Arbitration Act, 1940, the
Arbitration (Protocol and Convention) Act, 1937 and the
Foreign Awards (Recognition and Enforcement) Act,
1961. The United Nations Commission on International
Trade Law (UNCITRAL) adopted the Model Law in 1985 to
foster the development of a unified legal framework for
fair and efficient settlement of disputes arising in
international commercial arbitration. In pursuance, the
General Assembly of the United Nations recommended all
states to give due consideration to the Model Law in view
of the desirability of achieving uniformity of the law in
arbitration procedure and the specific needs of
International Commercial arbitration practice.
10. The principle of arbitration autonomy is an
indelible element of the burgeoning domain of arbitration
law. Arbitral tribunals function in an autonomous way in
the sense that they are constituted to give effect to the
mutual intention of the parties to settle their disputes
through a neutral and expert authority of their choice.

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Section 9 of the Code of Civil Procedure, 1908 bars the
jurisdiction of Court from trying suits of civil nature of
which the cognizance is either expressly or impliedly
barred. However, Section 5 of the Act has an overriding
effect as it ousts the judicial intervention in arbitration
matters except where it is provided. Section 28 of the
Contract Act, 1872 makes an agreement void if it
restricts a party to a contract absolutely from enforcing
their rights under or in respect of any contract by way of
usual legal proceedings, but exception 1 to Section 28 of
the Contract Act, 1872 provides an exception allowing
parties to an agreement for enforcing their rights by way
of legal proceeding by referring to arbitration instead of
litigating in regular courts. Furthermore, Section 19 of
the Act also liberated the Arbitral Tribunal from the
clutches of the procedure laid down in the Code of Civil
Procedure Code, 1908 or the Evidence Act, 1872 thereby
exhibiting the principle of judicial non interference and
autonomy of Arbitral Tribunals.
11. A plethora of decisions have deliberated upon
the scope of the intervention of the writ court with
respect to the orders passed by the arbitral tribunal. The
principle of minimal judicial interference denounces the
writ court from intervening in the interlocutory order
passed by an Arbitral Tribunal. Section 5 of the Act
contains a non-obstante clause mandating that no judicial
authority shall intervene in matters governed by Part I of
the Act except where expressly provided. The Supreme
11
Court in Deep Industries Ltd. v. ONGC while dealing
with an order of the High Court against the dismissal of
11 reported in (2020) 15 SCC 706;

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an application filed under Section 16 of the Act by arbitral
tribunal has categorically observed that dismissal of
Section 16 application by Tribunal cannot be interfered
with unless there is patent illegality in the inherent
jurisdiction exercised by the Tribunal.
12. However, the writ court can interfere with the
order passed by the arbitrator under Section 16 of the
Act when the perversity in the order stares on the face.
The dictum enunciated with regard to the aforesaid
principles find place in Punjab State Power Corpn. Ltd.
12
v. Emta Coal Ltd. The relevant paragraph of the
judgment is delineated below:
“4. We are of the view that a foray to the writ court
from a Section 16 application being dismissed by the
arbitrator can only be if the order passed is so
perverse that the only possible conclusion is that there
is a patent lack in inherent jurisdiction. A patent lack
of inherent jurisdiction requires no argument
whatsoever — it must be the perversity of the order
that must stare one in the face.”
13. The Supreme Court in Bhaven Construction
(Supra) laid down a two-pronged test for warranting
interference by writ court under Article 226 of the
Constitution of India. Firstly, one of the parties is left
remediless under the statute; secondly, a clear ‘bad faith’
is shown by one of the parties. The relevant paragraph of
the judgment is quoted hereinbelow:
“18. In any case, the hierarchy in our legal
framework, mandates that a legislative enactment
cannot curtail a constitutional right. In Nivedita
Sharma v. COAI [Nivedita Sharma v. COAI, (2011)
14 SCC 337 : (2012) 4 SCC (Civ) 947] , this Court
referred to several judgments and held : (SCC p.
12 reported in (2020) 17 SCC 93.

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343, para 11)
“11. We have considered the respective
arguments/submissions. There cannot be any dispute
that the power of the High Courts to issue directions,
orders or writs including writs in the nature of
habeas corpus, certiorari, mandamus, quo warranto
and prohibition under Article 226 of the Constitution
is a basic feature of the Constitution and cannot be
curtailed by parliamentary legislation — L. Chandra
Kumar v. Union of India [L. Chandra Kumar v. Union
of India, (1997) 3 SCC 261 : 1997 SCC (L&S) 577] .
However, it is one thing to say that in exercise of the
power vested in it under Article 226 of the
Constitution, the High Court can entertain a writ
petition against any order passed by or action taken
by the State and/or its agency/instrumentality or any
public authority or order passed by a quasi-judicial
body/authority, and it is an altogether different thing
to say that each and every petition filed under Article
226 of the Constitution must be entertained by the
High Court as a matter of course ignoring the fact
that the aggrieved person has an effective
alternative remedy. Rather, it is settled law that
when a statutory forum is created by law for
redressal of grievances, a writ petition should not be
entertained ignoring the statutory dispensation.”
(emphasis supplied)
It is therefore, prudent for a Judge to not exercise
discretion to allow judicial interference beyond the
procedure established under the enactment. This
power needs to be exercised in exceptional rarity,
wherein one party is left remediless under the
statute or a clear “bad faith” shown by one of the
parties. This high standard set by this Court is in
terms of the legislative intention to make the
arbitration fair and efficient.”
14. Drawing from Punjab State Power
Corporation Ltd . (Supra) to Bhaven Construction
(Supra) three conditions for warranting interference by
writ court may be culled out: the party challenging the
order is completely without remedy under the Arbitration
Act; one of the parties has acted in clear bad faith; the

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order of tribunal under Section 16 is completely perverse
on its face meaning that the perversity is so manifest and
so glaring that it stares the court on the face and requires
immediate intervention to prevent a gross miscarriage of
justice.
15. To answer the first issue one may look into the
impugned order passed by the Arbitral Tribunal. The
relevant part of the order is extracted hereinbelow:
“................In the case in hand the respondents are
challenging the limitation to file application under
Section 11 of the Act and not the limitation to file
claim which is yet to be filed. The High Court while
passing order on the petition under Section 11(6) on
7.12.23, observed that there are live and subsisting
disputes between the parties, which means that the
court was satisfied that the petition under Section
11(6) of the Act, was within time. Thus, there is no
occasion for this tribunal to go into the same issue
again. The issue of limitation to file claim, is well
within the jurisdiction of this tribunal but so far as
the limitation to file application under Section 11 of
the Act is concerned, the same has become final
when the High Court found that there was live and
subsisting dispute between the parties.
I am therefore of the considered opinion that this
tribunal while exercising jurisdiction under section
16 of the Act, cannot examine as to whether the
High Court had jurisdiction under Section 11 to
appoint arbitrator or not. However, this tribunal
would be competent enough to see as to whether
the claim referred by the claimants is within time
and is maintainable. If this tribunal comes to the
conclusion that the claim is barred by limitation, it
would have no jurisdiction to proceed with the
matter, that this can be done only after filing of the
claim and objection by the respondents.
In the result the application of the respondents for
terminating the arbitration proceedings on the
ground of limitation to file application under Section
11 of the Act before the High Court, is rejected.
However, it will be open for the respondents to raise

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issue of limitation to file claim, when the same is
filed by the claimants.”
16. As per Section 16 of the Act, the Arbitral
Tribunal has power to rule on its own jurisdiction. Section
16 of the Act is delineated below:
“ Section 16: Competence of arbitral tribunal to
rule on its jurisdiction.
(1) The arbitral tribunal may rule on its own
jurisdiction, including ruling on any objections with
respect to the existence or validity of the arbitration
agreement, and for that purpose,—
(a) an arbitration clause which forms part of a
contract shall be treated as an agreement
independent of the other terms of the contract; and
(b) a decision by the arbitral tribunal that the
contract is null and void shall not entail ipso jure
the invalidity of the arbitration clause.
(2) A plea that the arbitral tribunal does not have
jurisdiction shall be raised not later than the
submission of the statement of defence; however, a
party shall not be precluded from raising such a
plea merely because that he has appointed, or
participated in the appointment of, an arbitrator.
(3) A plea that the arbitral tribunal is exceeding the
scope of its authority shall be raised as soon as the
matter alleged to be beyond the scope of its
authority is raised during the arbitral proceedings.
(4) The arbitral tribunal may, in either of the cases
referred to in sub-section (2) or sub-section (3),
admit a later plea if it considers the delay justified.
(5) The arbitral tribunal shall decide on a plea
referred to in sub-section (2) or sub-section (3)
and, where the arbitral tribunal takes a decision
rejecting the plea, continue with the arbitral
proceedings and make an arbitral award.
(6) A party aggrieved by such an arbitral award
may make an application for setting aside such an
arbitral award in accordance with section 34.”
17. In the aforesaid order Arbitral Tribunal has

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abnegated to exercise jurisdiction under Section 16(2) of
the Act on the ground that it does not have jurisdiction to
decide with respect to the issue of limitation for filing
application under Section 11(6) of the Act before the High
Court on the reasoning that the above issue of limitation
is the sole jurisdiction of the High Court which cannot be
re-visited by the Tribunal.
18. The raison d’etre of the Tribunal cannot be
countenanced in law as the same will make one of the
parties to arbitration remediless as there is no remedy
against the rejection order passed by the arbitrator under
Section 16(5) of the Act and the party shall be left with
no remedy but to wait till the passing of the final award
and file an application for setting aside of the award
under Section 34 of the Act.
19. The doctrine of competence-competence
enshrined under Section 16 of the Act empowers an
arbitral tribunal to rule on its own jurisdiction which
makes it crystal clear that all the issues of jurisdiction
which includes the issue of deciding its jurisdiction on the
ground of limitation for appointing an arbitrator should be
adjudicated upon by the Tribunal and the Tribunal cannot
shrug off from its own jurisdiction merely with the
reasoning that once the reference court has appointed an
arbitrator, the jurisdiction of limitation for appointment of
arbitrator has already been adjudicated upon which need
not be reagitated during the arbitration proceedings as
being barred by res judicata . One may look into the very
recent judgment of the Supreme Court in Interplay
Between Arbitration Agreements under Arbitration

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13
Act, 1996 & Stamp Act, 1899, In re wherein the
Court has observed that Section 16 of the Act is intended
to give effect to the doctrine of competence-competence.
The relevant paragraphs of the judgment are quoted
hereinbelow:
“130. This position has now undergone a complete
metamorphosis in the present legislation. Section
16 of the Arbitration Act, which is based on Article
16 of the Model Law, recognises the doctrine of
competence-competence in Indian arbitration law.

(Emphasis added)
20. Moreover, Section 16(2) of the Act does not
preclude a party from raising any jurisdictional plea
13 reported in (2024) 6 SCC 1;

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merely because he has participated in the appointment of
an arbitrator or he himself has appointed an arbitrator.
21. In our view, the reasoning of the arbitrator that
once the High Court had referred the matter to the
arbitrator, the Arbitral Tribunal cannot examine the
jurisdictional issue with regard to application filed under
Section 11 of the Act being time barred goes against the
settled principles of law that even if the High Court
referred the matter to arbitration, the Arbitral Tribunal
under Section 16 of the Act had the power to decide on
its own jurisdiction. The Arbitral Tribunal is the forum for
deciding all issues that the parties may raise including
the issues of limitation that may have not been raised by
the parties at the time of order passed by the High Court
under Section 11 of the Act. Keeping in mind Section
11(6-A) of the Act that is still operational, the duty of the
High Court is restricted to examining the existence and
validity of the arbitration agreement and nothing more.
Even if the High Court refers the matter to the Arbitral
Tribunal under Section 11 of the Act, the Tribunal has the
power under Section 16 of the Act to hold that there is no
valid and subsisting arbitration agreement. The issue of
limitation being a jurisdictional point can be raised at any
point. In the present case the jurisdictional point with
regard to limitation vis-a-vis the time barred application
under Section 11(6) of the Act was required to be
adjudicated upon by the Tribunal. The logic of the
Tribunal that since the matter has been referred by the
High Court, the point of limitation cannot be re-looked
into by the Tribunal is without any basis in law and
against the principle of competence-competence as well

22
WRIC No. - 10703 of 2025
as the provisions of Section 16(2) and Section 16(3) of
the Act.
22. Before finally deciding on the issue as to
whether the writ court shall have jurisdiction to intervene
in the present matter, one may look into a neoteric
position of law as laid down in a three-judge bench
judgment of the Supreme Court in Ajay Madhusudan
Patel (Supra) wherein the Court has meticulously
observed the transition brought into effect by the
amendment of 2015 with the addition of Section 11(6-A)
of the Act that limits the scope of reference court to
decide the preliminary issue and leaves all issues open to
be decided by the Arbitral Tribunal. The relevant
paragraphs of the judgment are quoted hereinbelow:
“76. The position of law that emerges from the
aforesaid discussion can be summarised as follows:
76.1.SBP & Co. [SBP & Co. v. Patel Engg. Ltd.,
(2005) 8 SCC 618 : (2005) 128 Comp Cas 465]
expanded the scope of the Court's power under
Section 11 while empowering the referral courts to
decide several preliminary issues. Boghara Polyfab
[National Insurance Co. Ltd. v. Boghara Polyfab (P)
Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117]
went to the extent of identifying three categories of
preliminary issues that may arise for consideration
in an application under Section 11. Of these, in the
first category which had to be mandatorily decided
by the referral court, the question whether there
was an arbitration agreement and whether the
party who has applied under Section 11 of the 1996
Act is a party to such an agreement, was also
included.
76.2. The insertion of Section 11(6-A) through the
2015 Amendment to the 1996 Act stipulated that
the courts under Section 11 shall confine their
examination to the “existence” of an arbitration
agreement. It legislatively overruled the decisions
in SBP & Co. [SBP & Co. v. Patel Engg. Ltd., (2005)

23
WRIC No. - 10703 of 2025
8 SCC 618 : (2005) 128 Comp Cas 465] and
Boghara Polyfab [National Insurance Co. Ltd. v.
Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 :
(2009) 1 SCC (Civ) 117] by virtue of its non
obstante clause.
76.3.Duro Felguera [Duro Felguera, S.A. v.
Gangavaram Port Ltd., (2017) 9 SCC 729 : (2017)
4 SCC (Civ) 764] , in clear terms, clarified the
effect of the change brought in by Section 11(6-A)
and stated that all that the courts need to see is
whether an arbitration agreement exists — nothing
more, nothing less.
76.4.Vidya Drolia [Vidya Drolia v. Durga Trading
Corpn., (2021) 2 SCC 1 : (2021) 1 SCC (Civ) 549]
endorsed the prima facie test in examining the
existence and validity of an arbitration agreement
both under Sections 8 and 11, respectively.
However, it was clarified that in cases of debatable
and disputable facts and reasonably good arguable
case, etc. the Court may refer the parties to
arbitration since the Arbitral Tribunal has the
authority to decide disputes including the question
of jurisdiction. It was further stated that
jurisdictional issues concerning whether certain
parties are bound by a particular arbitration under
the group-company doctrine, etc. in a multi-party
arbitration raise complicated questions of fact which
are best left to the tribunal to decide.
76.5. In Interplay, In re [Interplay Between
Arbitration Agreements under A&C Act, 1996 &
Stamp Act, 1899, In re, (2024) 6 SCC 1] the
position taken in Vidya Drolia [Vidya Drolia v.
Durga Trading Corpn., (2021) 2 SCC 1 : (2021) 1
SCC (Civ) 549] was clarified to state that the scope
of examination under Section 11(6) should be
confined to the “existence of the arbitration
agreement” under Section 7 of the 1996 Act and
the “validity of an arbitration agreement” must be
restricted to the requirement of formal validity such
as the requirement that the agreement be in
writing. Therefore, substantive objections
pertaining to existence and validity on the basis of
evidence must be left to the Arbitral Tribunal since
it can “rule” on its own jurisdiction.
76.6.Krish Spg. [SBI General Insurance Co. Ltd. v.

24
WRIC No. - 10703 of 2025
Krish Spg., (2024) 12 SCC 1 : 2024 SCC OnLine SC
1754] cautioned that the courts delving into the
domain of the Arbitral Tribunal at the Section 11
stage run the risk of leaving the claimant
remediless if the Section 11 application is rejected.
Further, it was stated that a detailed examination
by the courts at the Section 11 stage would be
counterproductive to the objective of expeditious
disposal of Section 11 application and simplification
of pleadings at that stage.
76.7.Cox & Kings [Cox & Kings Ltd. v. SAP India (P)
Ltd., (2024) 4 SCC 1 : (2024) 2 SCC (Civ) 1 :
(2024) 251 Comp Cas 680] specifically dealt with
the scope of inquiry under Section 11 when it
comes to impleading the non-signatories in the
arbitration proceedings. While saying that the
referral court would be required to prima facie rule
on the existence of the arbitration agreement and
whether the non-signatory party is a veritable party
to the arbitration agreement, it also said that in
view of the complexity in such a determination, the
Arbitral Tribunal would be the proper forum. It was
further stated that the issue of determining parties
to an arbitration agreement goes to the very root of
the jurisdictional competence of the Arbitral
Tribunal and can be decided under its jurisdiction
under Section 16.”
*
94. Once the Arbitral Tribunal is constituted, it shall
be open for the respondents to raise all the
available objections in law, and it is only after (and
if) the preliminary objections are rejected that the
tribunal shall proceed to adjudicate the claims of
the petitioners.”
(Emphasis added)
23. The amendment of 2015, after insertion of
11(6-A) to the Act legislatively overruled the broadened
position of law prevailing prior to 2015 amendment when
the Court could also go into preliminary questions such as
stale claims, accord and satisfaction having been reached
amongst all others [see: ( SBP & Co. (Supra) and

25
WRIC No. - 10703 of 2025
National Insurance Co. Ltd. v. Boghara Polyfab (P)
14
Ltd. . Although the 2019 amendment to the Act omitted
Section 11(6-A), the omission has not yet been notified,
and therefore, Section 11(6-A) still remains as part of the
Act and remains operative as on date. Ergo, the law laid
down in Duro Felguera (Supra), Vidya Drolia v. Durga
15
Trading Corporation , Interplay, In Re (Supra), SBI
16
General Insurance Co. Ltd. v. Krish Spg. , Cox &
17
Kings Ltd. v. SAP India (P) Ltd. holds the field.
24. Although the Supreme Court in Bhaven
Construction (Supra) has cautioned the writ court not to
exercise discretion beyond the procedure established
under the enactment, the Supreme Court in the same
breath has stated that this power may be exercised in
exceptional rarity. Combining this principle with the
dictum enunciated in Punjab State Power Corporation
Ltd . (Supra) that when an order is passed wherein there
is a patent lack of inherent jurisdiction, the writ court
may intervene. In our view, we are duty bound to
examine whether the arbitrator while deciding an
application under Section 16 of the Act had acted within
its jurisdiction. When the arbitrator chooses to abrogate
and abdicate his jurisdiction and comes to a wrong
finding that he does not have jurisdiction to decide a
particular point contrary to principles established in law,
the arbitrator at such point is acting in a patently illegal
manner. In the present case, the Arbitral Tribunal has in
a crystal clear manner abdicated its responsibility to
14 reported in (2009) 1 SCC 267;

26
WRIC No. - 10703 of 2025
decide on its own jurisdiction that it is required to do
under Section 16 of the Act. As pointed out in the
judgment of Ajay Madhusudan Patel (Supra), once the
Arbitral Tribunal is constituted, it shall be open for the
respondents to raise all the available objections in law
and it is only after the preliminary objections are
rejected, that the Tribunal shall proceed to adjudicate the
claims of the parties to arbitration. In the present case,
the arbitrator has specifically held that he does not have
power and/or jurisdiction to decide on a point of
limitation. In our view, this abdication stares at our face
and the perversity of the order compels us to intervene in
the present matter.
25. With regard to the arguments of the
respondent on the conjoint reading of Section 5 read with
Section 16(5) and Section 16(6) of the Act, that
mandates that once a decision has been taken rejecting
the application under Section 16 of the Act, the only
remedy left to the party is to wait for the arbitration
award and thereafter challenge it by way of an
application under Section 34 of the Act, is required to be
dealt with by me. In our view, looking at first principles,
it is clear that Section 16(2) of the Act categorically
states that the Tribunal shall deal with the issue of
jurisdiction and a party shall not be precluded from
raising such a plea merely because that he has appointed
or participated in the appointment of the arbitrator.
Keeping in mind the principles laid down in Ajay
Madhusudan Patel (Supra), it is clear that all issues
including that of jurisdiction have to be ruled upon by the
arbitrator himself. In fact, the judgement indicated above

27
WRIC No. - 10703 of 2025
clearly forbids the referral Court from going into the
aspect of jurisdiction except with regard to the existence
or validity of the arbitration agreement. All other points
are clearly left for the arbitrator to decide as he has the
power to rule on his own jurisdiction. Limitation being an
arbitrable issue, the arbitrator is bound to decide the
same as this issue is directly in relation to his jurisdiction.
26. Furthermore, the very fact that Sections 16(5)
and 16(6) of the Act state that once the decision is taken
with regard to rejecting the plea, the arbitrator is
required to continue with the arbitration proceedings and
make an award that can only be challenged by way of an
application for setting aside of the award under Section
34 of the Act, makes it mandatory for the arbitrator to
not be reticent and taciturn with regard to his own
jurisdiction. It is upon the arbitrator to decide on its own
jurisdiction that includes the issue of limitation. One has
to keep in mind the fact that the principle of competence-
competence requires the arbitrator to decide on its own
jurisdiction and the principle of res judicata with regard
to the referral Court do not come into play before the
Arbitral Tribunal. In fact, the Courts have consistently
held that it is the Arbitral Tribunal that decides on its own
jurisdiction and not the referral Court.
27. In light of the above, we are of the view that
the order of the Tribunal is patently illegal, perverse and
the Tribunal has failed to exercise the inherent
jurisdiction entrusted upon it. In light of the same, the
first question is answered in the affirmative in the facts
and circumstances of the case.

28
WRIC No. - 10703 of 2025
28. Proceeding to the second issue with regard to
the scope of jurisdiction of the referral court in appointing
an arbitrator, the lex lata subsequent to insertion of
Section 11(6-A) to the Act, is that the Supreme Court or
as the case maybe the High Court whilst considering any
application under Section 11(4) to 11(6) is to confine
itself to examination of existence of the arbitration
agreement, nothing more, nothing less and leave all
other preliminary issues including the issue with regard to
limitation for appointment of an arbitrator to be decided
by the Tribunal. Ergo, answering the second issue in the
negative, we may reiterate the principle of autonomy and
competence-competence that allows the Arbitral Tribunal
to rule on its own jurisdiction by virtue of Section 16 of
the Act and confines the jurisdiction of referral court
under Section 11 of the Act for the appointment of
arbitrator to the existence of a valid arbitration
agreement. When the High Court does look into the issue
of limitation and rejects the reference to arbitration, the
aggrieved party may approach the Supreme Court by
way of a Special Leave Petition under Article 136 of the
Constitution of India. Per Contra, when the High Court
does not delve into the issue of limitation, the aggrieved
party has two choices: either for filing a Special Leave
Petition before the Supreme Court or filing an objection
challenging the jurisdiction of the Arbitral Tribunal on the
grounds of limitation under Section 16 of the Act before
the Tribunal.
29. A cumulative dealing with the first two issues,
will answer the third issue. One may look into a treasure-
trove decision in the field of arbitration law by a seven-

29
WRIC No. - 10703 of 2025
judge Constitution Bench of the Supreme Court (coram:
Dr. D.Y. Chandrachud C.J . and Sanjay Kishan Kaul,
Sanjiv Khanna, B.R Gavai, Surya Kant, J.B. Pardiwala,
and Manoj Misra, JJ.) in Interplay, In Re (Supra),
wherein the court has reaffirmed that the legislative
policy under Section 11(6) of the Act by the High Court is
one of minimal judicial interference and maximum
delegation of jurisdictional questions. The Court has
observed that separability presumption contained in
Section 16 of the Act gives effect to the doctrine of
competence-competence allowing the Arbitral Tribunal to
assume and decide on its own jurisdiction. The relevant
paragraphs of the judgment are quoted hereinbelow:
“120. In view of the above discussion, we formulate
our conclusions on this aspect. First, the
separability presumption contained in Section 16 is
applicable not only for the purpose of determining
the jurisdiction of the Arbitral Tribunal. It
encapsulates the general rule on the substantive
independence of an arbitration agreement. Second,
parties to an arbitration agreement mutually intend
to confer jurisdiction on the Arbitral Tribunal to
determine questions as to jurisdiction as well as
substantive contractual disputes between them.
The separability presumption gives effect to this by
ensuring the validity of an arbitration agreement
contained in an underlying contract,
notwithstanding the invalidity, illegality, or
termination of such contract. Third, when the
parties append their signatures to a contract
containing an arbitration agreement, they are
regarded in effect as independently appending their
signatures to the arbitration agreement. The reason
is that the parties intend to treat an arbitration
agreement contained in an underlying contract as
distinct from the other terms of the contract; and
Fourth, the validity of an arbitration agreement, in
the face of the invalidity of the underlying contract,
allows the Arbitral Tribunal to assume jurisdiction
and decide on its own jurisdiction by determining

30
WRIC No. - 10703 of 2025
the existence and validity of the arbitration
agreement. In the process, the separability
presumption gives effect to the doctrine of
competence-competence.
*
G. The doctrine of competence-competence
123. The doctrine of kompetenz-kompetenz (also
known as competence-competence), as originally
developed in Germany, was traditionally understood
to imply that arbitrators are empowered to make a
final ruling on their own jurisdiction, with no
subsequent judicial review of the decision by any
court. [ Fouchard, Gaillard, Goldman on
International Commercial Arbitration, Emmanuel
Gaillard and John Savage (Eds.), (1999) 396.]
However, many jurisdictions allow an Arbitral
Tribunal to render a decision on its jurisdiction,
subject to substantive judicial review. [ Gary Born,
International Arbitration Law and Practice (3rd
Edn., 2021) 1143.]
124. It is a well-recognised principle of public
international law that a legal authority possessing
adjudicatory powers has the right to decide its own
jurisdiction. [Interpretation of the Greco-Turkish
Agreement of December 1st, 1926, In re, 1928 SCC
OnLine PCIJ 5] Similarly, it is a general rule of
international arbitration law that an Arbitral
Tribunal has the power to determine its own
jurisdiction. The ability of an Arbitral Tribunal to
determine its own jurisdiction is an important facet
of arbitration jurisprudence because it gives effect
to the separability presumption. The separability
presumption insulates the arbitration agreement
from the defects of the underlying contract, and
thereby ensures the sustenance of the tribunal's
jurisdiction over the substantive rights and
obligations of the parties under the underlying
contract even after such a contract is put to an end.
The doctrine of competence-competence allows the
tribunal to decide on all substantive issues arising
out of the underlying contract, including the
existence and validity of the arbitration agreement.
*
131. Section 16 empowers the Arbitral Tribunal to

31
WRIC No. - 10703 of 2025
rule on its own jurisdiction, including ruling on any
objections with respect to the existence or validity
of arbitration agreement. Importantly, the parties
have a right under Sections 16(2) and 16(3) to
challenge the jurisdiction of the Arbitral Tribunal on
grounds such as the non-existence or invalidity of
the arbitration agreement. The Arbitral Tribunal is
obligated to decide on the challenge to its
jurisdiction, and where it rejects the challenge, it
can proceed with the arbitral proceedings and make
an arbitral award. It is the principle of procedural
competence-competence which recognises the
power of an Arbitral Tribunal to hear and decide
challenges to its jurisdiction. Once the Arbitral
Tribunal makes an arbitral award, Section 16(6)
allows the aggrieved party to make an application
for setting aside the award under Section 34.
Sections 16(5) and 16(6) further show that
Parliament has completely ousted the jurisdiction of
Courts to interfere during the arbitral proceedings
— courts can intervene only after the tribunal has
made an award. Thus, Section 16 is intended to
give full effect to the procedural and substantive
aspects of the doctrine of competence-competence.
*
153. The decisions of this Court in Patel Engg. [SBP
& Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] and
Boghara Polyfab [National Insurance Co. Ltd. v.
Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 :
(2009) 1 SCC (Civ) 117] allowed for greater judicial
interference at the pre-arbitral stage. In effect, the
Referral Courts were encouraged to conduct mini
trials instead of summarily dealing with the
preliminary issues. This was also noted by the Law
Commission of India, which observed that judicial
intervention in the arbitral proceedings is a
pervasive problem in India leading to significant
delays in the arbitration process. [ Law Commission
of India, 246th Report (2014).] The Law
Commission recognised that one of the problems
plaguing implementation of the Arbitration Act was
that Section 11 applications were kept pending for
years by the Courts. To remedy the situation, the
Law Commission proposed changing the then
existing scheme of the power of appointment being
vested in the “Chief Justice” to the “High Court” and
the “Supreme Court”. It also clarified that the

32
WRIC No. - 10703 of 2025

155. The Statement of Objects and Reasons of the
2015 Amendment Act states that sub-section (6-A)
is inserted in Section 11 to provide that the
Supreme Court or the High Court while considering
application under sub-sections (4) to (6) “shall
confine to the examination of an arbitration
agreement”. With the coming into force of the 2015
Amendment Act, the nature of preliminary
examination at the referral stage under Section 11
was confined to the existence of an arbitration
agreement. It also incorporates a non obstante
clause which covers “any judgment, decree or order
of any court”. By virtue of the non obstante clause,
Section 11(6-A) has set out a new position of law,
which takes away the basis of the position laid
down by the previous decisions of this Court in
Patel Engg. [SBP & Co. v. Patel Engg. Ltd., (2005)
8 SCC 618] and Boghara Polyfab [National
Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd.,
(2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] . It is
also important to note that Parliament did not
incorporate the expression “or is null and void” as
was suggested by the Law Commission. This
indicates that Parliament intended to confine the

33
WRIC No. - 10703 of 2025

*

*
229. The discussion in preceding segments
indicates that the Referral Court at Section 11 stage
should not examine or impound an unstamped or
insufficiently stamped instrument, but rather leave
it for the determination by the Arbitral Tribunal.
When a party produces an arbitration agreement or
its certified copy, the Referral Court only has to
examine whether an arbitration agreement exists in
terms of Section 7 of the Arbitration Act. The
Referral Court under Section 11 is not required to
examine whether a certified copy of the agreement/
instrument/contract discloses the fact of payment
of stamp duty on the original. Accordingly, we hold
that the holding of this Court in SMS Tea Estates
[SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P)
Ltd., (2011) 14 SCC 66 : (2012) 4 SCC (Civ) 777] ,
as reiterated in N.N. Global (2) [N.N. Global

34
WRIC No. - 10703 of 2025

30. In the present case, the arbitrator has declined
to decide the preliminary objection of limitation, not
rejected the same on merits but has relinquished the
very jurisdiction to decide it. For the sake of clarity, the
relevant part of the order passed by the arbitrator is once
again extracted below for the sake of clarity:
“The Hon'ble Supreme Court has held in the case of
The Uttarakhand Purv Sainik Kalyan Nigam Ltd. Vs.
Northern Coal Field Ltd. (Manu/SC/1634/2019) that
in the proceedings under Section 11 of the Act, the
court is only required to see the existence of
arbitration clause in the agreement, the parties to
the agreement and that one of the parties has
refused to appoint arbitrator. No other issue such
as validity of the agreement, limitation etc. are to
be seen by the arbitrator and not by the court at
pre-reference stage.
In the case referred to above, the High Court had
refused to appoint arbitrator on the ground that the
claim was barred by limitation. The Supreme Court
held that after the amendment in Section 11 of the
Act, this power can be exercised by the tribunal
only and not by the High Court in the proceedings
under Section 11 of the Act.
Thus, from analysis of the position of law on the
issue, I am of the view that while considering the
issue of limitation in relation to a petition under
Section 11(6) of the Act, the court should satisfy on
two aspects, first whether the petition under
Section 11(6) of the Act, is barred by limitation,
and secondly whether the claim sought to be
arbitrated, is dead claim and thus barred by
limitation on the date of commencement of
proceedings.
In the case in hand the respondents are challenging
the limitation to file application under Section 11 of
the Act and not the limitation to file claim which is
yet to be filed. The High Court while passing order

35
WRIC No. - 10703 of 2025
on the petition under Section 11(6) on 7.12.23,
observed that there are live and subsisting disputes
between the parties, which means that the court
was satisfied that the petition under Section 11(6)
of the Act, was within time. Thus, there is no
occasion for this tribunal to go into the same issue
again. The issue of limitation to file claim, is well
within the jurisdiction of this tribunal but so far as
the limitation to file application under Section 11 of
the Act is concerned, the same has become final
when the High Court found that there was live and
subsisting dispute between the parties.
I am therefore of the considered opinion that this
tribunal while exercising jurisdiction under section
16 of the Act, cannot examine as to whether the
High Court had jurisdiction under Section 11 to
appoint arbitrator or not. However, this tribunal
would be competent enough to see as to whether
the claim referred by the claimants is within time
and is maintainable. If this tribunal comes to the
conclusion that the claim is barred by limitation, it
would have no jurisdiction to proceed with the
matter, that this can be done only after filing of the
claim and objection by the respondents.
In the result the application of the respondents for
terminating the arbitration proceedings on the
ground of limitation to file application under Section
11 of the Act before the High Court, is rejected.
However, it will be open for the respondents to
raise issue of limitation to file claim, when the same
is filed by the claimants.”
31. The Arbitral Tribunal has accepted that
limitation is a jurisdictional issue within its domain and
recorded that the continuing cause of action of the
respondent has no force but has still refused to decide
the point of limitation on a perfunctory whim that he has
no jurisdiction. An order that records a legal position,
accepts it, and then acts contrary to it without any
reasoning is inherently contradictory and completely
perverse on the face of the record. The relevant part of
the order that substantiates the aforesaid analysis is

36
WRIC No. - 10703 of 2025
quoted hereinbelow for the sake of clarity:
“The judgments of the Supreme Court also make it
clear that the period of limitation to file an
application under Section 11, is 3 years from the
date of refusal to appoint the arbitrator or from the
date when cause of action arises, in view of this,
the argument of the claimants that the cause of
action is still continuing, has no force, but at the
same time this tribunal while exercising power
under Section 16 of the Act, can examine as to
whether the claim of the claimants is within time
but so far as the jurisdiction of the High Court to
entertain application under section 11 of the Act is
concerned, this Tribunal cannot examine as to
whether the High Court had jurisdiction to entertain
the application under section 11 of the Act. The
respondents had every occasion to appear before
the high court and file objection as to the limitation
to file application under section 11 of the Act for
appointment of arbitrator but on both the
occasions, the respondents failed to appear and
oppose the application on the ground of limitation.”
32. In light of the principles laid down in
Interplay, In Re (Supra) and Ajay Madhusudan Patel
(Supra) , we are of the considered view that the Tribunal
has erred in law in declining to adjudicate on the
jurisdictional issue of limitation for appointing the
arbitrator in spite of being duty bound and obligated to
decide on its own jurisdiction.
CONCLUSION
33. Upon sifting through a catena of judgments of
the Supreme Court and applying the said dictum to the
present case, we are of the considered view that the
present case is one of the rarest cases warranting
interference by writ court in light of the findings given
above.
34. The power of the High Court being a reference

37
WRIC No. - 10703 of 2025
court under Section 11 of the Act is of minimal
interference and maximum delegation and the jurisdiction
of the High Court in appointing an arbitrator under
Section 11 is confined to examination of arbitration
clause in the agreement and the Court at this stage
should not get lost in thickets and decide disputed and
mixed questions of fact such as the limitation for
appointing the arbitrator. Moreover, as per P. Ramanatha
Aiyar, The Law Lexicon [(2nd Edn., 1997) 666] the
expression “examination” does not connote or imply a
laborious or contested inquiry. On the other hand,
Section 16 provides that the Arbitral Tribunal can “rule”
on its jurisdiction, including the existence and validity of
an arbitration agreement. A ‘ruling’ connotes adjudication
of disputes after admitting evidence from the parties.
Ergo, it is evident that the referral court is only required
to examine the existence of arbitration agreements,
whereas the Arbitral Tribunal ought to rule on its
jurisdiction, including the issues pertaining to the
limitation for appointment of an arbitrator under Section
11 of the Act and the Tribunal has erred in law in
declining to adjudicate on the jurisdictional issue of
limitation for appointing arbitrator under Section 16
despite having the competence and jurisdiction to rule on
the same.
35. In light of the above, the impugned order dated
October 9, 2025 passed by the Arbitral Tribunal rejecting
the petitioner's application under Section 16 of the Act, is
hereby quashed and set aside.
36. The Arbitral Tribunal is directed to adjudicate
upon the issue relating to limitation for appointment of

38
WRIC No. - 10703 of 2025
arbitrator under Section 11(6) of the Act as a preliminary
objection under Section 16 of the Act, on merits after
granting an opportunity of hearing to the parties, in
accordance with law.
37. The Arbitral Tribunal shall decide the said
preliminary objections expeditiously.
38. It is clarified that this Court has expressed no
opinion on the merits of the limitation issue, and all the
contentions of both parties are left open to be raised and
decided before the Arbitral Tribunal.
39. The writ petition is allowed in the aforesaid
terms. There shall be no order as to costs.
40. I would like to acknowledge the consummate
arguments made by counsel appearing on behalf of both
the parties and for the diligent spadework in preparation
of the notes of arguments. I would also go amiss if I did
not acknowledge the significant contribution and
appreciate my Research Associate Ms. Saumya Patel for
her in-depth research and assistance provided to me.
April 27, 2026
Ashutosh/ cks/-
(Shekhar B. Saraf, J.)
I agree
(Abdhesh Kumar Chaudhary, J.)
Digitally signed by :-
ASHUTOSH PANDEY
High Court of Judicature at Allahabad,
Lucknow Bench