1 arbap157-08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ABRITRATION APPLICATION NO.157 OF 2008 Rashid A. Mujawar, Sole Prop. Of M/s.S.R. Construction ....Applicant V/s. Bharat Sanchar Nigam Ltd. ....Respondent Mr.S.U. Kamdar, Senior Counsel with Mr.Devvrat Dhankar i/b Mr.S.S. Phadke for the Applicant. Ms.Neeta V.Masurkar for the Respondent. CORAM : S.J. VAZIFDAR, J. DATE : 22ND JULY, 2010. P.C. :- 1. This is an application under section 11 of the Arbitration and Conciliation Act, 1996. There is no dispute that the work orders were issued. Nor is there any dispute about the existence of the arbitration agreement. The only contention is that the claim is barred by limitation. 2. This is one of the issues which the Court may decide in the application under section 11 of the said Act, as held by the Supreme Court in National Insurance Co. Ltd. v. Boghara Polyfab Pvt. Ltd., (2009) 1 SCC 267 :- “22. Where the intervention of the court is sought for appointment of an Arbitral Tribunal under Section 11, the duty of the Chief Justice or his designate is defined in SBP & Co. This Court identified and segregated the preliminary issues that may arise for consideration in an application under Section 11 of the Act into three categories, that is, (i) issues which the Chief Justice or his 2 arbap157-08 designate is bound to decide ; (ii) issues which he can also decide, that is, issues which he may choose to decide; and (iii) issues which should be left to the Abitral Tribunal to decide. 22.1. The issues (first category) which the Chief Justice/his designate will have to decide are : (a) Whether the party making the application has approached the appropriate High Court. (b) Whether there is an arbitration agreement and whether the party who has applied under Section 11 of the Act, is a party to such an agreement. 22.2. The issues (second category) which the Chief Justice/his designate may choose to decide (or leave them to the decision of the Arbitral Tribunal) are : (a) Whether the claim is a dead (long-barred) claim or a live claim. (b) Whether the parties have concluded the contract/transaction by recording satisfaction of their mutual rights and obligation or by receiving the final payment without objection. 22.3. The issues (third category) which the Chief Justice/his designate should leave exclusively to the Arbitral Tribunal are : (i) Whether a claim made falls within the arbitration clause (as for example, a matter which is reserved for final decision of a departmental authority and excepted or excluded from arbitration). (ii) Merits or any claim involved in the arbitration.” In the facts of the present case, I do not intend deciding the issue. In my opinion, it ought to be left to the Arbitral Tribunal to do so. This is not a clear cut case where the claim is barred by limitation. The Respondent by a letter dated 22.7.2004 informed the Applicant that he had decided to recover the amount allegedly paid in excess to the Applicant under another contract which is a subject matter of Arbitration Application 3 arbap157-08 No.158 of 2008. Under cover of a letter dated 24.3.2005, the Respondent made payment of a sum after deducting the alleged excess payment. Thus one of the issues which would arise is whether this constitutes part payment such that it would save the bar of limitation. A cheque in the sum of Rs.4,33,841/- was forwarded to the Applicant. The Applicant invoked the arbitration clause on 14.12.2007 and filed the present application on 30.6.2008. 3. In the facts of this case however, I see no reason to deviate the arbitration clause as regards the appointment of the Arbitrator under the arbitration clause. All the issues are referred to the sole arbitration of the Chief General Manager, Telecom, Maharashtra Circle, Mumbai or an officer appointed by them on his behalf. I have no reason to believe that the Chief General Manager, Telecom, Maharashtra Circle, Mumbai or the officer appointed by them would act mala-fide. Thus though I have a discretion to appoint any other person, I prefer to adhere to the arbitration clause as regards the appointment of the Arbitrator. 4. In the circumstances, the application is allowed by directing the Chief General Manager, Telecom, Maharashtra Circle, Mumbai to act as a sole Arbitrator or to appoint an officer on his behalf in accordance with clause 223 on or before 31.8.2010. All the rights and contentions including as to the limitation are kept pending.