056A

IN THE

HONORABLE HIGH COURT OF DANGAL

AT SALDANA

IN THE MATTERS OF

BECHARA LIMITED………… PLAINTIFF

(REPRESENTED BY MANAGING DIRECTOR)

V.

DYNAMO LIMITED………… DEFENDANT

(REPRESENTED BY MANAGING DIRECTOR)

CIVIL SUIT NO. 1080/2019

[UNDER SECTION 11 OF THE ARBITRATION AND CONCILIATION ACT, 1996 AND

ARTICLE 225 OF THE CONSTITUTION OF INDIA, 1950 READ WITH SECTION 6, 9 AND
19 OF CODE OF CIVIL PROCEDURE, 1907.]

MEMORIAL ON BEHALF OF APPLICANT

 TABLE OF CONTENTS

Contents
Table of Contents.............................................................................................................................2
index of authorities..........................................................................................................................2
Statement of Facts............................................................................................................................4
Statement of Jurisdiction.................................................................................................................6
summary of arguments....................................................................................................................7
Arguments Advanced......................................................................................................................8
A. Rule 7 is ultra virus to the provisions of Constitution..........................................................8
1. Rule 7 Ultra vires to Article 220...........................................................................................8
2. Rule 7 is Violative of article 19..........................................................................................10
3. Rule 7 is Ultra- vires to Advocates Act..............................................................................11
B. The scope of enquiry under Section 11 of the Arbitration and Conciliation Act, 1996 for
the existence of Arbitration Clause............................................................................................12
I. scope of enquiry under Section 11 of the Arbitration and Conciliation Act, 1996............12
2. ‘PARTIES’ includes applicant and respondent-.................................................................13
4. Dispute between applicant and respondent is covered by arbitration clause......................15
5. Even when the agreement is termination, Right to Court remains.....................................16
II. Whether the arbitration clause has expired by efflux of time as contended by Dynamo
Limited.......................................................................................................................................17
1. To Examine Limitation is Outside of jurisdiction of Court-..............................................17
2. Period of limitation starts after Applicant’s Notice............................................................18
3. Claims can be made post- expiry-......................................................................................19
Prayer.............................................................................................................................................20

ii
 INDEX OF AUTHORITIES

Cases

(2005) 8 SCC 618..........................................................................................................................14

(2009) 1 SCC 267..........................................................................................................................14

(2012) 11 SCC 554........................................................................................................................15

[2011] SGCA 21 [19]....................................................................................................................10

[2016] SGCA 53 [30]....................................................................................................................10

2007 (4) Arb. L.R. 445 (Kar).........................................................................................................12

2007] UKHL 40.............................................................................................................................10

2013 SCC Online Bom 1048.........................................................................................................13

501 U.S. 190 (1991).......................................................................................................................16

526 US 574 (1999).........................................................................................................................11

AIR 2011 SC 3814.........................................................................................................................15

AIR 2013 SC 3778.........................................................................................................................15

AIR 2014 Calcutta 90......................................................................................................................9

Astro Vencedor Compania Naviera SA v. Mabanaft GmbH (1970) 2 Lloyd's Rep. 267..............13

Bishnu Devi Shaw and others Vs. The Federal Bank Ltd., and others AIR 2014 Calcutta 90.......9

Chloro Controls India Private Ltd. v. Severn Trent Water Purification Inc. and Ors...................11

Duro Felguera S.A. vs. Gangavaram Port Limited, (2017) 9 SCC 729........................................10

Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 414 U. S. 374.............................................16

Gurudevdatta VKSSS Maryadit vs. State of Maharashtra (2001) 4 SCC 535................................8

Heyman v. Darwins Ltd. (1942) A.C. 356....................................................................................13

iii
In Fiona Trusts v. Primalov,..........................................................................................................10

Indian Council of Legal Aid and Advice and others v. Bar Council of India and another (1995) 1

SCC 732.......................................................................................................................................9

Indian Oil Corporation Ltd. vs. SPS Engineering Ltd., AIR 2011 SC 987...................................15

Indra Bahadur Singh vs. Bar Council of U.P., Allahabad and Ors., MANU/UP/0182/1986..........8

Jyoti Persh ad v. Union Territory of Delhi......................................................................................7

K.K. Chhibber vs. Devinder Sharma.............................................................................................11

K.K. Chhibber vs. Devinder Sharma: MANU/HP/0690/2014......................................................15

Larsen Oil and Gas v. Pte Ltd Petroprod Ltd................................................................................10

M. Radhakrishnan v. The Secretary, the Bar Council of India AIR 2007 Madras 108...................9

M/s Girdharilal and Sons v Balbir Nath Mathur (1986) 2 SCC 237...............................................6

M/s Roshin Lal Gupta & Sons (P) Ltd V/s Delhi Tourism & Transportation Development

Corporation &Anr, MANU/DE/0246/2009...............................................................................13

Manohar Reddy & Bros. V/s Maharashtra Krishna Valley Development Corporation, (2009) 2

SCC 494.....................................................................................................................................13

Mayavti Trading Pvt. Ltd. Vs. Pradyuat Deb Burman..................................................................15

N. Kannadasan vs. Ajoy Khose 2009 INSC 1042...........................................................................6

Nathi Devi Vs. Radha Devi Gupta (2005) 2 SCC 271....................................................................8

Nelson Motis vs. Union of India, (1992) 4 SCC 711......................................................................6

Nitin Shankar Deshpande vs. The President of India and Ors., 2012(5)BomCR729......................6

Nolde Bros., Inc. v. Bakery Workers, 430 U.S. 243.....................................................................16

Panchu Gopal Bose v. Board of Trustees for Port of Calcutta (1993) 4 SC 338...........................16

S.Balasubramanian vs The Secretary, W.P.(MD) No. 7369 of 2010..............................................9

iv
S.P.Gupta vs. Union of India, 1981 (Supp) SCC 87........................................................................7

Shri Ramesh Nair v. Union of India, MANU/CA/0134/2013.........................................................5

State of Madras v. V. G. Row..........................................................................................................7

Steel Authority of India Ltd. v. J.C. Budharaja AIR 1999 SC 3275;............................................16

Statutes

Constitution (Seventh Amendment) Act, 1956...............................................................................6

Rule 7 of the Bar Council of Saldana Rules....................................................................................8

Section 11(4), Arbitration and Conciliation Act, 1996..................................................................15

Section 17(1) of the General Clauses Act, 1897..............................................................................5

Section 49(ah), Advocates Act, 1961..............................................................................................9

Constitutional Provisions

Article 217, the Indian Constitution, 1950......................................................................................5

Article 218, the Indian Constitution, 1950......................................................................................5

Article 219, the Indian Constitution, 1950......................................................................................5

Article 220, the Indian Constitution, 1950......................................................................................5

Article 224, the Indian Constitution, 1950......................................................................................5

Books

Cross's "Statutory Interpretaion" (Second Edn.) at page 2..............................................................6

D.D Basu, Commentary on the Constitution of India (9th ed., 2014..............................................7

Law Relating to Arbitration and Conciliation by Dr. P.C. Markanda; Lexis Nexis, Ninth Edition,

Page 460.....................................................................................................................................14

Mustill & Boyd, Commercial Arbitration, Butterworths (1982), at page 8..................................12

v
Russell on Arbitration, 21st Edition, Page 57.................................................................................12

STATEMENT OF FACTS

I.
Just Chips Ltd., an IT Company, approached Mr. Bhavesh Lal for the purpose of constructing its

largest facility in the world at Babylon valley, Dangal. The project required the acquisition of 70

acres of land. Mr. Roark was approached by Mr. Lal for joint development of the Just Chips

facility.

II.

Bechara Limited (one of the group entities owned by Mr. Lal) and Just Chips Limited contracted

with Dynamo Limited (one of the group entities owned by Mr. Roark) to acquire 80 acres of

land. As per the arrangement between Dynamo Limited and Bechara Limited, Dynamo ltd.

agreed to undertake the acquisition of land and the Bechara ltd. was entrusted with construction

in 1st phase.

III.

On 31.12.2014 Just Chips Limited announced in the media about its facility, due to which the

land prices in the locality grew dramatically. Owing to this announcement, Dynamo Limited was

unable to acquire land and Just Chips Limited had to abandon its project. Owing to this failure,

Bechara Limited filed an application under Section 11 of the Arbitration and Conciliation Act,

1996 before the High Court of Dangal.

IV.

vi
The said application was filed by Mr. Uday Bhan. Before returning to the Bar, Mr. Bhan was an

Additional Judge of the High Court of Mangal. Owing to miniscule pay of a judge, he resigned

from the post and resumed his practice.

V.

The counsel for Dynamo Limited strongly opposed the appearance of Mr. Bhan under Rule 7 of

the Bar Council of Saldana. In order to expeditiously dispose-off the arbitration application, the

High Court suo moto decided to examine the validity of the rule.

vii
 STATEMENT OF JURISDICTION

The Claimant most humbly submits to the jurisdiction of the honorable High Court of Dangal

under section 11 the Arbitration and Conciliation Act, 1996 read with Section 6, 9 And 19 Of

Code Of Civil Procedure,1906 and Article 225 of the Constitution of India, 1950.

viii
 SUMMARY OF ARGUMENTS

I. Rule 7 is ultra virus to article 220 of the Constitution because it fails to

distinguish between the classification made under article 220 of permanent

judges and additional judges as additional judges are appointed for the period of

2 years and prohibiting additional judge would mean to rewrite the constitutional

provisions which is not within the power of the bar council of Saldana.Rule 7 is

violative of article 19 because it probits people from making constitutional

choice of profession and propagates that bench doesn't read bar equally.

II. Rule 7 is ultra virus to the advocates act because first for it makes rule beyond

the rule making power of the bar council and the ban imposed is unreasonable

III. The dispute has arisen between Bechara and dynamo because the terms of the

arbitration clause that is all differences and disputes clearly implies a wide scope

of the arbitration clause Android include all the transaction except one which is

entirely unrelated.

IV. The clause has not expired by efflux of time because the time of limitation

would start after the cause of action has arisen and the cause of action arose after

30 days of request made under section 11( 3) by the Applicant.

ix
 ARGUMENTS ADVANCED

A. RULE 7 IS ULTRA VIRUS TO THE PROVISIONS OF CONSTITUTION.

1. RULE 7 ULTRA VIRES TO ARTICLE 220-

1.1. Section 17(1)1 of the General Clauses Act, 1897 provides that “in any Central Act or

Regulation, it shall be sufficient for the purpose of indicating the application of a law to

every person executing the functions of an office, to mention the official title of the officer at

present executing the functions” This by no stretch of logic can be pressed in aid to even

suggest that he expression Permanent Judge for the purpose of Article 220 will include an

Additional Judge.2

1.2. Position of judge is different from a Permanent judge

1.2.1. Article 220 3imposes restriction on Permanent Judges from practicing as advocate in the

same court or the court subordinate to the Court.

1.2.2. Though the duties and functions of a Permanent Judges and an Additional Judges of a

High Court is identical, yet there is a cardinal difference in the in the tenure of an

Additional Judge and Permanent Judge.

1.2.3. Permanent Judges and Additional Judges shall be regarded as two separate and distinct

classes as seen in the Articles 2174,2185, 2196, 220 and 2247 of the Constitution

1
Section 17(1) of the General Clauses Act, 1897
2
Shri Ramesh Nair v. Union of India, MANU/CA/0134/2013.
3
Article 220, the Indian Constitution, 1950.
4
Article 217, the Indian Constitution, 1950.
5
Article 218, the Indian Constitution, 1950.
6
Article 219, the Indian Constitution, 1950.
7
Article 224, the Indian Constitution, 1950.

1
1.2.4. The provisions of Articles 224 and 220 inserted by the Seventh Constitutional in 1956 8,

le inserted appointment Additional Judges, the Constitution and explicitly laid

prohibition on practice in the same Court on permanent Judges. The term "permanent"

shall be interpreted by reference of tenure of a Judge;

1.2.5. Hence the meaning of Article 220 shall be construed in a plain, ordinary and literal

meaning because the terms of provision is clear, plain and unambiguous.9

1.2.6. The terms of the Article 220 are unambiguous and there is the Court has clarity in

interpretation10. “The duty of the Court must be to adopt the ordinary and natural

meaning to the words used by the constituent body11.

1.2.7. Rule 712 ignore the word "permanent" in Article 220. To accept the Rule of prohibiting an

Additional Judge would mean to rewrite the provisions of the Constitution

1.3. Legislative intent must be kept in mind-

1.3.1. The constitution originally didn’t have provision of additional judge to deal with urgency

in the business of High Court, post was made in 1956. Hence the intention is the position

of Additional Judge is distinct and seperate from Permanent Judge.13

1.3.2. The post of Addition judge is for maximum 2 years. the legislator intended that,

obviously, after 2 years the additional judge may restore his original position, it is

immaterial that both discharge same functions14

1.3.3. Though origanally the Constitution was framed to impose an absolute restriction, from

practicing before any other Court on any Judge, there was material alteration with the

8
Constitution (Seventh Amendment) Act, 1956.
9
M/s Girdharilal and Sons v Balbir Nath Mathur (1986) 2 SCC 237.
10
Cross's "Statutory Interpretaion" (Second Edn.) at page 2
11
N. Kannadasan vs. Ajoy Khose 2009 INSC 1042.
12
Ibid.
13
Nitin Shankar Deshpande vs. The President of India and Ors., 2012(5)BomCR729.
14
Nelson Motis vs. Union of India, (1992) 4 SCC 711.

2
 provision for appointment of Additional Judges in 1956. Rule 7 aims to restore pre-

1956 position, wich is impermissible15;

2. RULE 7 IS VIOLATIVE OF ARTICLE 19-

2.1. Right To Freedom Of Profession

Article 19(g) of the constitution proves right to practice profession to all the citizens.16

2.2. Subjected to reasonable restriction.

2.2.1. whether the restriction imposed was reasonable-

2.2.1.1. Definition of reasonable is specific to the case, it is neither possible nor advisable

to state to apply reasonalbleness in any abstract standard or general pattern uniformly to

every case.17The nature of the right infringed, the purpose underlying the restriction

imposed, the extent and urgency of need of a remedy, the imposition’s disproportion, the

prevailing conditions etc should all come in the judicial verdict.18

2.2.2. Rule 7 inflicts an absolute restriction upon carrying on of the profession.

2.2.2.1. Rule 7 doesn't take note of the reasonable classification between permanent and

additional judges and put a blanket restriction on all the Judges.

2.2.2.2. Nitin Shankar Deshpande vs. The President of India stated that “A person who

held office as an Additional Judge of the High Court is not subject to the constitutional

prohibition of practice before the same High Court upon demitting Office. That is a

matter of a constitutional choice.” 19

15
S.P.Gupta vs. Union of India, 1981 (Supp) SCC 87
16
D.D Basu, Commentary on the Constitution of India (9th ed., 2014)
17
State of Madras v. V. G. Row
18
Jyoti Persh ad v. Union Territory of Delhi
19
Ibid.

3
2.2.3. Barring additional judges won’t serve a greater public good.

2.2.3.1. There is no merit within the contention that the Additional Judge who on

reverting to the Bar commences practice will be placed in a not equal position in

comparison with any other member of the Bar.20

2.2.3.2. Any bar on the right to practise must be construed strictly and the bar that is

imposed by the Constitution, must be limitted to what is expressly provided that is on the

practice before an equivalent Court by a permanent Judge21.

2.3. Independence of judiciary-

In imposing a prohibition on the right to practise and while curtailing the right to freedom

under Article 19(1)(g), a careful balance shall be drawn between preservation the

independence of the judiciary and the right of a Judge who has held the office.22

3. RULE 7 IS ULTRA- VIRES TO ADVOCATES ACT:

3.1. Rule 723 was way beyond the power of framing Rules conferred to the Bar Council of

Saldana by the Advocates Act, moreover, be framed only by the High Court under Section

3424 of the Act. There is no source to the formation of provision by the Bar Council of

Saldana.25

20
Indra Bahadur Singh vs. Bar Council of U.P., Allahabad and Ors., MANU/UP/0182/1986.
21
Gurudevdatta VKSSS Maryadit vs. State of Maharashtra (2001) 4 SCC 535
22
Nathi Devi Vs. Radha Devi Gupta (2005) 2 SCC 271.
23
Rule 7 of the Bar Council of Saldana Rules.
24
Section 34 of the Advocates Act, 1961.
25
M. Radhakrishnan v. The Secretary, the Bar Council of India AIR 2007 Madras 108.

4
3.2. Section 49(ah)26 which supposed to be the source of this power did not confer any such

power. such a rule, if at all, could be framed, be framed by the High Court under Section 34

of the Act27.

3.3. An Advocate cannot cease to become an advocate automatically, provided no specific

order was forwarded by Bar Council as per the law to remove or suspend the name of that

advocate from the roll of concerned Bar Council.28

3.4. In Bishnu Devi Shaw and others Vs. The Federal Bank Ltd 29., and others, the Calcutta

High Court held that an advocate cannot suspend membership. Advocate may merely

suspend practice and a declaration is required to file for the same30.

B. THE SCOPE OF ENQUIRY UNDER SECTION 11 OF THE ARBITRATION AND

CONCILIATION ACT, 1996 FOR THE EXISTENCE OF ARBITRATION CLAUSE

1. SCOPE OF ENQUIRY UNDER SECTION 11 OF THE ARBITRATION AND

CONCILIATION ACT, 1996

1.1. The High Court of Dangal is the competent Court to hear the matter:

1.1.1. According to Section 11(6A) of the Act that states, the High Court, while considering a

request made by a party for appointment of an arbitrator, shall, examination of the

existence of an arbitration agreement31.

26
Section 49(ah), Advocates Act, 1961.
27
Indian Council of Legal Aid and Advice and others v. Bar Council of India and another (1995) 1 SCC 732.
28
Bishnu Devi Shaw and others Vs. The Federal Bank Ltd., and others AIR 2014 Calcutta 90.
29
AIR 2014 Calcutta 90.
30
S.Balasubramanian vs The Secretary, W.P.(MD) No. 7369 of 2010.

31
Duro Felguera S.A. vs. Gangavaram Port Limited, (2017) 9 SCC 729.

5
1.1.2. As per Fiona Trusts v. Primalov32, the makin of an arbitration clause shall begin with the

presumtion that parties are rational businessmen and have intention that dispute arising

out of contract should be decided a tribunal.

Hence, since the parties could not resort, in is within the powers of the Hon’ble Court to

judicious decide the matter.

2. ‘PARTIES’ INCLUDES APPLICANT AND RESPONDENT-

2.1. The intention of the parties is construed by the language that is employed by the parties in

the Contract.

2.2. In Fiona Trusts v. Primalov 33, the court held, “[w]hether common law or statutory,

should be regarded as falling within the agreement’s scope unless there is good reason to

conclude otherwise. The phrase “any dispute arising out of or in connection with this

Charterparty is without express qualification and exceptions, hence should include all

disputes.34” The same was reintrated in Larsen Oil and Gas v. Pte Ltd Petroprod Ltd 35, where

the court held that the terms used in the contract give insight of the intention of parties and

usage of terms like ‘ all differences and dispute’ are of broad meaning.36

2.3. In Chloro Controls India Private Ltd. v. Severn Trent Water Purification Inc. and Ors 37,

The term used, "under and in connection with" in the main agreement was comprehensive

32
[2007] UKHL 40
33
[2007] UKHL 40
34
[2007] UKHL 40
35
[2011] SGCA 21 [19].
36
[2016] SGCA 53 [30].
37
Chloro Controls India Private Ltd. v. Severn Trent Water Purification Inc. and Ors

6
 because it has a wide connotation. Hence, the principle agreement included performance of

all other agreements by parties including non-signatories and third party38.

2.4. Phrases like “any and all” “disputes, controversies or differences” “arising out of or in

connection with” the contract as held by the courts to imply the widest possible meaning and

jurisdiction and is capable of include any dispute within the ambit of its meaning except one

which is “entirely unrelated to the transaction covered by the contract39”.

2.5. Hence, the language of the agreement vide date 2.11.2014 clearly suggests the meaning

of dispute or difference between the parties as inclusive of dispute or difference arisen

between applicant and respondent.

3. Assuming but not contending that the claim made by respondent that applicant and

respondent cannot be referred as parties for the purpose of arbitration clause is true, yet, the

non performance on the part of d is so deeply connected with the contract that it’ll form a

dispute for the arbitration clause because it is clear that the intention of the parties was to

include “ all dispute/ differences”. 'intention of the parties' is a very significant feature which

must be established before the scope of arbitration can be said to include the signatory as

well as the non-signatory parties.

40
3.1. The Supreme Court of the United States of America, Ruhrgos AG v Marathon Oil Co.

in Even without prior consent of non-signatory or third party, it subjected to arbitration

provided the no third party has direct relationship to the arbitration agreement, subject matter

and the agreement between the parties.

3.2. the Supreme Court in Ameet Shah laid down that could be ed by the in the main

agreement’s arbitration clause can cover all the parties as all four other agreements were

38
K.K. Chhibber vs. Devinder Sharma.
39
Ibid.
40
526 US 574 (1999)

7
 certainly interconnected and drawn for attainment of the single commercial objective of Solar

Plant establishment at Uttar Pradesh, India.

3.3. The objective of arrangement between applicant and respondent was clearly to attain

single objective, hence shall be included in the arbitration agreement.

4. DISPUTE BETWEEN APPLICANT AND RESPONDENT IS COVERED BY

ARBITRATION CLAUSE:

4.1. Arbitration clause is independent of the Agreement. Even though the contract vide date

02.11.14 came to at end, yet the arbitration clause will subsist.

4.2. The doctrine of separability provides that an arbitration clause constitutes a collateral or
41
ancillary contract, which is self-contained from the main contract. While, doctrine of

implied terms provides after the formal expiry of an agreement, an arbitration agreement can

continue to be implied on the basis of the relationship between the parties between them.42

4.3. As provided in  Sreenivasa V/s Kuttukaran Machine Tools Ltd43, Though the contract

comes to an end, the contract is still in existence, for certain purposes in respect of disputes

arising under it or in connection with it. Therefore, the arbitration clause in such a contract

does not perish.44 It continues to exist. Any dispute arising under the said contract is to be

decided as stipulated in the arbitration clause.45

4.4. Mulheim Pipecoatings GmbH V/s Welspun Fintrade Ltd46.,  arbitration clause wouldn’t

ipso facto come to an end by termination of main contract, but depending on the nature of

41
Russell on Arbitration, 21st Edition, Page 57
42
Mustill & Boyd, Commercial Arbitration, Butterworths (1982), at page 8
43
2007 (4) Arb. L.R. 445 (Kar)
44
Manohar Reddy & Bros. V/s Maharashtra Krishna Valley Development Corporation, (2009) 2 SCC 494
45
Heyman v. Darwins Ltd. (1942) A.C. 356
46
2013 SCC Online Bom 1048

8
 controversy, shall subsist. The nature of controversy should be specific to the agreement for

the arbitrary clause to subsist. 47

4.5. The arbitration clause is considered separate from the main clause for the very objective

of arbitration clause is to settle dispute and not the performance prima facie.48

4.6. It has been time and again reintrated by the Supreme Court in its judgments like in Reva

Electrical Car Company Private Ltd. v. M/s Green Mobil13, Today Homes and Infrastructure

Pvt. Ltd. v. Ludhiana Improvement Trust14 and Enercon (India) Ltd. & Ors. v. Enercon

GmbH & Anr.15 that an arbitration clause which forms part of a contract has to be treated as

an independent agreement.

4.7. Hence, in the present matter, the arbitration clause should be considered as an agreement

that survives independent of the agreement vide dated 02.11.2014 and since the dispute

persists, the Court be may pleased to appoint an arbitrator for resolution of the dispute

between the parties.

5. EVEN WHEN THE AGREEMENT IS TERMINATION, RIGHT TO COURT

REMAINS

5.1. Derrico v. Sheehan Emergency Hosp., 844 F.2d 22, 25-27 (CA2 1988) (Section

301 of the LMRA, 29 U.S.C. 185, does not provide a federal court jurisdiction

where a bargaining agreement has expired, although rights and duties under the

expired agreement "retain legal significance because they define the status quo"

for purposes of the prohibition on unilateral changes.

47
M/s Roshin Lal Gupta & Sons (P) Ltd V/s Delhi Tourism & Transportation Development Corporation &Anr,
MANU/DE/0246/2009.
48
Astro Vencedor Compania Naviera SA v. Mabanaft GmbH (1970) 2 Lloyd's Rep. 267

9
B. WHETHER THE ARBITRATION CLAUSE HAS EXPIRED BY EFFLUX OF TIME

AS CONTENDED BY DYNAMO LIMITED?

1. TO EXAMINE LIMITATION IS OUTSIDE OF JURISDICTION OF COURT-

1.1. From the plain reading of Section 11(6A) 49, it is clear that legislature intended to limit the

role of the Court should only looking into one aspect that is, whether the arbitration

agreement is in existence.

1.2. The position of the role of the Courts under section 11(6A) of the Act was considerably

wide before the 2015 amendment of the act.50 Same can be seen in the matters of SBP and

Co. v. Patel Engineering Ltd51 and National Insurance Co. Ltd. v. Boghara Polyfab Pvt.

Ltd.52, the Court examined other aspects as well, i.e. limitation.

1.3. But now, the Courts need to view nothing more or nothing less than existance an

arbitration agreement.53 The purpose of this legislative policy, in essence is to at the stage of

appointment of the arbitrator, minimize the intervention of Court and this ought to be

respected.54

1.4. Supreme Court in State of Goa v. Praveen Enterprises 55, have held that Chief Justice or

his designate will not ordinarily consider issue of limitation. 56

49
Section 11(6A), Arbitration and Concialation Act.
50
Ibid.
51
(2005) 8 SCC 618.
52
(2009) 1 SCC 267.
53
Law Relating to Arbitration and Conciliation by Dr. P.C. Markanda; Lexis Nexis, Ninth Edition, Page 460.
54
Law comm. Report.
55
AIR 2011 SC 3814.
56
K.K. Chhibber vs. Devinder Sharma: MANU/HP/0690/2014.

10
1.5. It is submitted in Schlumberger Asia Services Ltd. vs. Oil and Natural Gas Corporation

Ltd57 on the issue of limitation, the Court had held that the matter shall be left to Tribunal to

decide that whether the claim made is barred by limitation or not.58

1.6. Lufthansa German Airlines v. Airport Authority of India 59, the supreme court held that

merely because the agreement is efflux by time, it wouldn’t bring arbitration clause to an

end.

1.7. If the court is of the opinion that the arbitration agreement exists prima facie, then the

dispute shall be referred to arbitration, and the question of existence of the arbitration

agreement shall be left for the arbitral tribunal to decide.60

2. PERIOD OF LIMITATION STARTS AFTER APPLICANT’S NOTICE-

2.1. The period of limitation starts after 30 days after cause of arbitration arose i.e. after Mr.

Lal gave application for arbitration61.

2.2. In various cases, it was held that for commencement of arbitration, limitation period

starts from the day the cause of arbitration accrued, that is, the date when a party first

acquired a right of action or right to require arbitration to happen on the concerned dispute.62

3. CLAIMS CAN BE MADE POST- EXPIRY-

3.1. Supreme Court of the United States, while dealing with question of efflux of time, in

Litton Financial Printing Division, A Division of Litton Business Systems, Inc. v. 3.2.

57
AIR 2013 SC 3778.
58
Indian Oil Corporation Ltd. vs. SPS Engineering Ltd., AIR 2011 SC 987.
59
(2012) 11 SCC 554.
60
Mayavti Trading Pvt. Ltd. Vs. Pradyuat Deb Burman.
61
Section 11(4), Arbitration and Conciliation Act, 1996.
62
Steel Authority of India Ltd. v. J.C. Budharaja AIR 1999 SC 3275; Panchu Gopal Bose v. Board of Trustees for
Port of Calcutta (1993) 4 SC 338.

11
 National Labor Relations Board63., provided, [d]ifferences that may arise between the

parties" Which means that if a dispute arises under the contract here in question, it is subject

to arbitration even in the postexpiry period. 64 The aim of an arbitration clause is not to

transcend but to implement a contract.65

63
501 U.S. 190 (1991).
64
Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 414 U. S. 374.
65
Nolde Bros., Inc. v. Bakery Workers, 430 U.S. 243.

12
 PRAYER

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited,it is

most humbly and respectfully prayed before the Honourable High Court at Dangal, Saldana, that

it maybe pleased to: -

 Appoint an Arbitrator under Section 11(6) of Arbitration and Conciliation Act, 1996.

 Hold Rule 7 of Bar Council of Saldana is violative of Article 220 and 19 of the Constitution

and ultra- vires of Advocates Act,1961.

And pass any other order in favour of the Applicant which this court may so deem fit in the ends

of equity, justice and good conscience.

All of which is most humbly and respectfully submitted.

Place: Dangal, Saldana. Counsel No. 056A

Date: February 9, 2020 Counsel for the Applicant

13