*1* 7-42-10 srj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO. 42 OF 2010 Nimbus Media Pte. Ltd. ..Applicant. v/s. Zee Sports Ltd. ..Respondent. Mr. Anil Menon i/b. Anil Menon & Associates, for Applicant. Mr. Ankit Lohia a/w. Ms. Pooja Tidke i/b. ALMT Legal, for Respondent. CORAM : S.J. VAZIFDAR, J. DATE : 24 th JANUARY, 2011. P.C. :- 1 This is an application under section 11 of the Arbitration & Conciliation Act, 1996. 2 The parties have executed an agreement dated 17th January, 2004. Mr. Menon, learned counsel appearing on behalf of the Applicant states that there is a typographical error and the correct date is 17th January, 2005. The Respondent for the purpose of this application, invited me to proceed on the basis that the correct date is 17th January, 2005. Clause 9 (vii) of the agreement contains an arbitration agreement. 3 The only contention is that the claim is barred by the law of limitation. In the facts and circumstances of this case, it is not possible to state that the claim is clearly barred by limitation. There are various facts which require consideration in this regard. The possibility of oral evidence being required in this regard also cannot be ruled out. *2* 7-42-10 4 For instances, by an e-mail dated 22nd May, 2006, the applicant stated as follows:- “ I refer to our meeting last week in which you had confirmed that at least 50% of the outstanding payments due to various Nimbus group companies from Zee would be paid by end of last week. We still have not received any payment let alone 50% of the outstandings. I thing you will agree that we have been most patient and accommodating. I would appreciate it if the commitments are honoured and out payments released immediately. Please confirm by reply mail the amounts being paid now. In response thereto, the Respondent by an e-mail dated 24th May, 2006 stated as follows:- “ I have asked Sudhir in our accounts to make a payment schedule and send it to Rajinder Agarwal with the idea of squaring off all dues within the next 15 to 20 days. Immediately, I have asked him to release Rs.1 crore for which he should have the check ready by this weekend.” 5 Even assuming that the e-mail could not save also limitation under section 18 of the Limitation Act as it is not signed by it, it is a moot point as to whether the Respondents’ e-mail dated 24th May, 2006 constitutes a promise to pay a time barred debt under section 25 of the Indian Contract Act. Prima facie, it appears that the Respondent did promise to pay the same. This is clear from the fact that the Respondent stated that it would be making a payment schedule with the idea of squaring all the dues of the Applicant. The Respondent further stated that the amount of Rs.1 crore would be released and that the cheque would be ready by the week end. Thus, even if it not an acknowledgment in writing signed by Respondent, prima facie, it is a promise to pay the debt. *3* 7-42-10 6 It was contended that the e-mail was not in respect of the dues which are the subject matter of the present disputes. 7 The submission for the purpose of this application is not well founded. Reliance is placed upon e-mails dated 9th January, 2006 and 23rd January, 2006 which are referred to in Ex. “K” to suit no.1410 of 2009 filed by the group companies of the Applicant. In the e-mail dated 9th January, 2006, the Plaintiff in that suit set out certain claims which did not include the present claim mentioned in the above application. The Respondent’s reply dated 23rd January, 2006, I will presume was in response to the e-mail dated 9th January, 2006. That by itself, does not establish that the e-mail dated 24th January, 2006 did not pertain to or in any manner excluded the present claim and that it constitutes a promise to pay only the claim referred to in the e-mail dated 9th January, 2006. These are issues which must be left for the decision of the Arbitrator. 8 In view of the above, I have not found it necessary to consider Mr. Menon’s submission that the e-mail constitutes an acknowledgment of the debt and thereby saves limitation under section 18 of the Limitation Act. 9 In the circumstances, the application is disposed of by appointing Mr. Justice D.R.Dhanuka- Retired Judge of this Court as a sole arbitrator. It is made clear that all the issues between the parties including the above, are left open for the decision of the Arbitrator.