ARB.P. 853/2025 Page 1 of 33

$~J

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 13.08.2026

Judgment pronounced on: 07 .09.2026

+ ARB.P. 853/2025

FLEMINGO (DFS) PRIVATE LIMITED ....Petitioner

Through: Mr. Achint Singh Gyani, Adv.

versus

AIRPORTS AUTHORITY OF INDIA ....Respondent

Through: Mr. Digvijay Rai, Standing Counsel,

Mr. Archit Mishra, Mr. Sachin Yadav,

DSM (law) AAI & Mr. Ravinder

Sulkhian, A.M. (law) AAI, Ayush

Annand, Advs.

CORAM:

HON'BLE MR. JUSTICE JASMEET SI NGH

J U D G M E N T

1. This is a petition filed under Section 11 (6) of the Arbitration and

Conciliation Act, 1996 (“1996 Act”) seeking appointment of a Sole

Arbitrator for adjudication of the disputes between the parties arising out

of the Licence Agreement dated 30.09.2011.

FACTUAL BACKGROUND

2. The petitioner is a private limited company incorporated under the

ARB.P. 853/2025 Page 2 of 33

Companies Act,1956 and engaged in the operation of duty-free shops at

airports.

3. The respondent is a body corporate constituted by the Central

Government under the Airports Authority of India Act, 1994. The

respondent is engaged in the creation, upgradation, maintenance and

management of civil aviation infrastructure in India.

4. The respondent, with the intention of maintaining amenities and facilities

for the passengers, decided to open up duty-free shops at the Amritsar

Airport (“the Airport”). Accordingly, the respondent issued a notice

inviting tenders for the development and operation of duty-free shops at

the Airport.

5. The petitioner, being desirous of operating the duty free shops at the

Airport in the Customs Hold departure/transit and Arrival Areas,

submitted a tender to the respondent, which was accepted by the

respondent. Accordingly, the petitioner was awarded the licence to

develop and operate duty free shops vide the Letter of Award dated

10.06.2009. Thereafter, the Licence Agreement dated 30.09.2011 was

executed between the parties for a duration of 5 years commencing from

10.06.2009 to 09.06.2014. The petitioner was allotted the following

spaces for establishment and operation of duty-free shops:

i. Space measuring 66.64 SQM in the Arrival area

ii. Space measuring 46.58 SQM in the Departure area

6. The Agreement contained an Arbitration Clause being clause No. 57

which reads as under:

“57. If any dispute, difference or question shall at any time

hereinafter arise between the parties hereto or their

ARB.P. 853/2025 Page 3 of 33

respective representatives or assigns in respect of the

construction of these presents or the Contract, or

concerning anything contained or arising out of these

presents or as to rights, liabilities or dues of the said parties

there under, which cannot be mutually resolved by the

parties, the same shall be referred to the sole arbitrator on

agreed terms under the provisions of the Indian Arbitration

and Conciliation Act, 1996. If the parties fail to agree for

appointment of sole arbitrator within 30 days, the

Arbitrator Tribunal can be constituted with the appointment

of one Arbitrator by the Claimant and one by the

Respondent and these two appointed arbitrators shall

appoint the third arbitrator who shall act as the Presiding

arbitrator. The venue of Arbitration shall be New Delhi,

India or any other place in India as may be decided

mutually. The award of the arbitrator or the arbitral

tribunal shall be final and binding on the parties.”

7. Subsequently, the possession of the duty-free shops on the arrival side

and the departure side of the new Airport terminal was handed over to the

petitioner on 21.07.2009 and 26.10.2009 respectively.

8. Since disputes arose between the parties concerning excess rent and

concession fee charged by the respondent, there were several

correspondences sent by the petitioner raising the said disputes before the

respondent and the same were summarily rejected by the respondent on

28.09.2021 and 11.10.2021. In the meanwhile, the term of the Licence

Agreement expired, and the respondent floated a new Request for

ARB.P. 853/2025 Page 4 of 33

Proposal for granting concession rights at the Airport. The bid of the

petitioner for the same was accepted, and the Concession Agreement

dated 18.04.2016 was entered into between the parties.

9. It is the case of the petitioner that since the petitioner’s claims were

summarily rejected by the respondent, the petitioner invoked Arbitration

vide legal notice dated 14.03.2022. After several follow-ups, the

respondent replied to the said notice on 06.02.2023, suggesting that the

disputes between the parties may be referred to mediation in terms of the

Airports Authority of India Mediation Policy, 2022 (“AAI Mediation

Policy, 2022”). Upon failure to resolve the dispute amicably, the

petitioner, vide email dated 22.02.2024, urged the respondent to appoint a

Sole Arbitrator for adjudication of disputes. After several reminders from

the petitioner, the respondent intimated the petitioner that the petitioner’s

request has been forwarded to the competent authority. In the meantime,

since the petitioner was under the apprehension that the respondent might

encash its bank guarantees, the petitioner filed a petition under Section 9

of the 1996 Act. The respondent thereafter provided the petitioner with a

list of 65 empanelled Arbitrators from which the petitioner recommended

a name. Since the respondent failed to take any further action regarding

the appointment of the Arbitrator, the present petition has been filed.

10. It is the case of the respondent that the petitioner made several

representations from 2017 to 2021, and even requested the respondent to

appoint an Arbitrator. The respondent rejected the correspondence of the

petitioner on 28.09.2021 and 11.10.2021. Therefore, the breaking point

of the lis for the purpose of limitation would commence on the said dates.

The petitioner has filed the present petition in the year 2025 and,

ARB.P. 853/2025 Page 5 of 33

therefore, is barred by limitation.

SUBMISSIONS ON BEHALF OF THE PETIT IONER

11. Mr. Achint Singh Gyani, learned counsel for the petitioner, states that the

existence of a valid arbitration agreement between the parties is not in

dispute and prays for the appointment of an Arbitrator. He further states

that the objections raised by the respondent are both factually as well as

legally unsustainable.

12. He points out that the claims raised by the petitioner were rejected by the

respondent on 28.09.2021 and the decision was formally communicated

to the petitioner on 11.10.2021. The petitioner, being aggrieved by the

said decision, issued a notice under Section 21 of the 1996 Act.

Thereafter, the respondent arbitrarily raised the demand of Rs.

35,57,777/- through an invoice dated 03.08.2022. Thereafter, at the

suggestion of the respondent, the parties entered into mediation. Mrs.

Manisha Nanda, Retd. Addl. Chief Secretary, Government of HP was

appointed as a Mediator for amicable resolution of the disputes. The

parties were engaged in bona fide negotiations from 30.06.2023 to

23.11.2023, which failed, and the said decision was formally

communicated to the petitioner in January, 2024. Thus, it is apparent that

the present petition is well within the prescribed limitation.

13. Learned counsel states that the issue of whether the claims are barred by

limitation or not strictly falls within the jurisdiction of the Arbitrator in

accordance with the principle of Kompetenz-Kompetenz. The same

cannot be adjudicated at the stage of Section 11 (6). He places reliance on

Aslam Ismail Khan Deshmukh v. ASAP Fluids Private Limited and Another,

(2025) 1 SCC 502 and Bakhtawar Ahmad Rather v. Airport Authority of

ARB.P. 853/2025 Page 6 of 33

India, ARB.P. 596/2025.

14. With respect to the issue of whether the petition is barred by limitation, it

is stated by the learned counsel for the petitioner that after the invocation

of Notice of Arbitration, the parties were actively engaged in a bona fide

mediation process at the request of the respondent, which was not

successful. Thus, the period of negotiations should be excluded for

computation of the period of limitation for Arbitration. He places reliance

on Geo Miller & Co. (P) Ltd. v. Rajasthan Vidyut Utpadan Nigam Ltd.,

(2020) 14 SCC 643; Shree Ram Mills Ltd. v. Utility Premises (P.) Ltd. (2007)

4 SCC 599 and M/s Unisys Infosolutions Pvt. Ltd. v. Gurbani Media Pvt. Ltd,

2024 SCC OnLine Del 1280.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

15. Mr. Rai, learned counsel for the respondent, opposes the maintainability

of the petition and prays that the petition shall be rejected at the outset.

He challenges the present petition on four grounds:

a. The alleged disputes are ex facie barred by limitation.

b. The petitioner has repeatedly invoked arbitration and abandoned

the process.

c. The claims sought to be referred to Arbitration in the present

petition do not arise from the License Agreement and are

therefore outside the scope of the arbitration clause.

16. He states that limitation under the 1996 Act begins to run when the

claims of a party are denied. In the present case, the respondent rejected

the claims of the petitioner as early as on 22.05.2014. Thereafter, the

petitioner sent four legal notices dated 05.07.2017, 16.11.2017,

10.01.2018 and 09.04.2018 (2017-18) and followed it up with 17

ARB.P. 853/2025 Page 7 of 33

reminders till 2020. Despite the same, the petitioner did not pursue the

proceedings to appoint the Arbitrator.

17. He also states that a fresh notice invoking the arbitration was issued on

14.03.2022 and the petition was filed on 22.05.2025. Once the notice

under Section 21 has been issued invoking arbitration, time begins to run,

and a subsequent notice in 2022 cannot revive the limitation which has

already come to an end in 2020.

18. He places reliance on Aslam Ismail Khan Deshmukh v. ASAP Fluids

(P) Ltd., (2025) 1 SCC 502, to contend that, even within the limited

enquiry permissible at the referral stage, the Court is required to examine

whether the Section 11(6) petition itself has been filed within the

prescribed period of three years.

19. He places reliance on Geo Miller Company Pvt Ltd. v. Chairman,

Rajasthan Vidyut Utpadan Nigam Ltd. (2020) 14 SCC 643 and M/s B

and T AG v. Ministry of Defence, (2023) SCC OnLine SC 657 and

highlights the principle of breaking point for determining limitation in

arbitration. He states that even if the intervening correspondences are

taken into account, the same cannot extend the limitation period. Thus,

the present petition under Section 11, having been instituted only in 2025,

is therefore ex facie barred by limitation.

20. It is further stated that the petitioner has raised claims relating to

concession of fee in terms of the Licence Agreement dated 30.09.2011,

but what is of significance here is that the said agreement dated

30.09.2011 does not contain any concept of concession of fee. Therefore,

the dispute concerning the same falls beyond the purview of Clause 57,

being the Arbitration clause.

ARB.P. 853/2025 Page 8 of 33

ANALYSIS AND FINDINGS

21. I have heard the learned counsel for the parties and perused the material

on record.

22. Before delving into the facts of the present case, it is pertinent to

highlight the scope of interference by a referral court while adjudicating

petitions filed under Section 11 of the 1996 Act. The Hon’ble Supreme

Court in Interplay Between Arbitration Agreements under Arbitration,

1996 & Stamp Act, 1899, In re, (2024) 6 SCC 1, categorically held that

the scope of examination at the stage of appointment of an Arbitrator is

limited to a prima facie assessment of the existence of a valid arbitration

agreement:

“81. One of the main objectives of the Arbitration Act is to

minimise the supervisory role of Courts in the arbitral

process. Party autonomy and settlement of disputes by an

Arbitral Tribunal are the hallmarks of arbitration law.

Section 5 gives effect to the true intention of the parties to

have their disputes resolved through arbitration in a quick,

efficient and effective manner by minimising judicial

interference in the arbitral proceedings. [Food Corpn. of

India v. Indian Council of Arbitration, (2003) 6 SCC 564.]

Parliament enacted Section 5 to minimise the supervisory

role of Courts in the arbitral process to the bare minimum,

and only to the extent “so provided” under the Part I of the

Arbitration Act. In doing so, the legislature did not

altogether exclude the role of Courts or judicial authorities

in arbitral proceedings, but limited it to circumstances

ARB.P. 853/2025 Page 9 of 33

where the support of judicial authorities is required for the

successful implementation and enforcement of the arbitral

process. [Union of India v. Popular Construction Co.,

(2001) 8 SCC 470; P. Anand Gajapathi Raju v. P.V.G. Raju,

(2000) 4 SCC 539] The Arbitration Act envisages the role of

Courts to “support arbitration process” [Swiss Timing Ltd.

v. Commonwealth Games 2010 Organising Committee,

(2014) 6 SCC 677 : (2014) 3 SCC (Civ) 642] by providing

necessary aid and assistance when required by law in

certain situations.”

23. Further, the judgment of the Hon’ble Supreme Court in SBI General

Insurance Co Ltd. v. Krish Spinning 2024 SCC OnLine SC 1754 had

perused the dictum laid down in Vidya Drolia and Ors. v. Durga Trading

Corporation, (2021) 2 SCC 1 and NTPC Limited v. SPML Infra

Limited, (2023) 9 SCC 385, and clarified the law laid down in In Re,

Interplay (Supra). Post Krish Spinning (Supra), the jurisdiction of the

Section 11 court is circumscribed to examining the existence of an

arbitration agreement between the parties, and whether the petition under

Section 11(6) has been filed within three years of the Notice Invoking

Arbitration under Section 21 of the 1996 Act and nothing more.

24. The Hon’ble Supreme Court in Aslam Ismail Khan Deshmukh (Supra),

reiterated that the limited enquiry to be conducted by the Court while

adjudicating the petition filed under Section 11 of the 1996 Act would

only entail prima facie existence of the Arbitration Agreement and

whether the petition under Section 11 was filed within the limitation

period as prescribed under Article 137 of Limitation Act, 1963. It would

ARB.P. 853/2025 Page 10 of 33

be improper for a referral court to hold a detailed examination as to

whether a claim is time barred. The same is the domain of the Arbitrator.

Such an enquiry at the stage of Section 11 petition would not only be

improper but also would amount to the referral court venturing outside its

well defined domain. The relevant paragraphs read as under:

“43. Therefore, while determining the issue of limitation in

the exercise of powers under Section 11(6) of the 1996 Act,

the referral Court must only conduct a limited enquiry for

the purpose of examining whether the Section 11(6)

application has been filed within the limitation period of

three years or not. At this stage, it would not be proper for

the referral Court to indulge in an intricate evidentiary

enquiry into the question of whether the claims raised by the

petitioner are time-barred. Such a determination must be

left to the decision of the arbitrator.

44. After all, in a scenario where the referral Court is able

to discern the frivolity in the litigation on the basis of bare

minimum pleadings, it would be incorrect to assume or

doubt that the Arbitral Tribunal would not be able to arrive

at the same inference, especially when they are equipped

with the power to undertake an extensive examination of the

pleadings and evidence adduced before them.”

25. The limitation period for filing a petition under Section 11, which is

prescribed under Article 137, starts ticking 30 days after the notice under

Section 21 of the 1996 Act is sent by one party to the other.

26. With this background, I shall now deal with the facts of the case.

ARB.P. 853/2025 Page 11 of 33

27. The objection raised by the respondent is that the first Notice invoking

Arbitration was sent in 2017. Therefore, the limitation to file a Section 11

petition expired had already expired in 2020. Since the present petition is

filed in 2025, the same is barred by limitation.

28. At first blush, the argument of the respondent seems to be attractive.

However, I am unable to agree. The said argument of the respondent is

predicated on the fact that the notices dated 05.07.2017, 16.11.2017,

10.01.2018 and 09.04.2018 are notices invoking arbitration. The said

notices read as under:

“July 5, 2017

The Chairman,

Airports Authority of India,

Rajiv Gandhi Bhawan,

Safdarjung Airport,

NEW DELHI

Dear Sir,

SUBJECT: Refund of excess License fees and wrongly

annual escalation charged

We are writing with reference to the captioned subject and

our repeated reminders to Airports Authority of India

seeking resolution of the pending issue with respect to our

old Amritsar Concession.

We humbly submit that in spite of repeated reminders and

assurances of a response, the issue still remains unresolved

since past many years. We would therefore like to request

kind intervention of your good offices so that necessary

instructions be issued to the concerned department to

expedite our request and to our request and also provide us

ARB.P. 853/2025 Page 12 of 33

the refund of excess License Fee and incorrect annual

escalation charged from us.

We would like to propose that if required and instructed by

your good offices, we are ready and willing to sit across the

table with the concerned official and can provide necessary

information and documents in support of our contention for

refund.

We sincerely hope and trust that with your kind

intervention, we will be able to resolve this issue. Please

note that since this issue has remained unresolved since

past many years, should this issue remains unresolved any

further, we would request your good offices to kindly refer

this matter to a Sole Arbitrator in accordance with Clause

57 of the License Agreement dated 30.09.2011.

We look forward to hearing from you.

Thanking you,

Your sincerely,

FOR FLEMINGO (DFS) PVT LTD.

Ajay Thoria

AGM – Operation & Compliance.”

“November 16, 2017

The Chairman,

Airports Authority of India,

Rajiv Gandhi Bhawan,

Safdarjung Airport,

NEW DELHI

Dear Sir,

SUBJECT: Refund of excess License fees and wrongly

annual escalation charged

ARB.P. 853/2025 Page 13 of 33

Ref: Earlier email dated 05.07.2017

We are writing with reference to the captioned subject and

our repeated reminder emails to Airports Authority of India

seeking resolution of the pending issue with respect to our

old Amritsar Concession.

We humbly submit that in spite of repeated reminders and

assurances of a response, the issue still remains unresolved

since past many years. We would therefore like to request

kind intervention of your good offices so that necessary

instructions be issued to the concerned department to

expeditiously respond to our request and also provide us the

refund of excess Licensee Fee and incorrect annual

escalation charged from us.

We would like to propose that if required and instructed by

your good offices, we are ready and willing to sit across the

table with the concerned official and can provide necessary

information and documents in support of our contention for

refund.

We sincerely hope and trust that with your kind

intervention, we will be able to resolve this issue. Please

note that since this issue has remain unresolved since past

many years, should this issue remains unresolved any

further, we would request your good offices to kindly refer

this matter to a Sole Arbitrator in accordance with Clause

57 of the License Agreement dated 30.09.2011.

We look forward to hearing from you.

Thanking you,

Your sincerely,

For FLEMINGO (DFS) PVT LTD.

Ajay Thoria

AGM – Operation & Compliance.”

“January 10, 2018

ARB.P. 853/2025 Page 14 of 33

The Chairman,

Airports Authority of India,

Rajiv Gandhi Bhawan,

Safdarjung Airport,

NEW DELHI

Dear Sir,

SUBJECT: Refund of excess License fees and wrongly

annual escalation charged

Ref: Earlier email dated 05.07.2017

We are writing with reference to the captioned subject and

our repeated reminder emails to Airports Authority of India

seeking resolution of the pending issue with respect to our

old Amritsar Concession.

We humbly submit that in spite of repeated reminders and

assurances of a response, the issue still remains unresolved

since past many years. We would therefore like to request

kind intervention of your good offices so that necessary

instructions be issued to the concerned department to

expeditiously respond to our request and also provide us the

refund of excess Licensee Fee and incorrect annual

escalation charged from us.

We would like to propose that if required and instructed by

your good offices, we are ready and willing to sit across the

table with the concerned official and can provide necessary

information and documents in support of our contention for

refund.

We sincerely hope and trust that with your kind

intervention, we will be able to resolve this issue. Please

note that since this issue has remain unresolved since past

many years, should this issue remains unresolved any

further, we would request your good offices to kindly refer

this matter to a Sole Arbitrator in accordance with Clause

57 of the License Agreement dated 30.09.2011.

ARB.P. 853/2025 Page 15 of 33

We look forward to hearing from you.

Thanking you,

Your sincerely,

For FLEMINGO (DFS) PVT LTD.

Ajay Thoria

AGM – Operation & Compliance.”

“April 09, 2018

The Chairman,

Airports Authority of India,

Rajiv Gandhi Bhawan,

Safdarjung Airport,

NEW DELHI

Dear Sir,

SUBJECT: Refund of excess License fees and wrongly

annual escalation charged

Ref: Earlier email dated 05.07.2017, 16.11.2017 and

10.01.2018

We are writing with reference to the captioned subject and

our repeated reminder emails to Airports Authority of India

seeking resolution of the pending issue with respect to our

old Amritsar Concession.

We humbly submit that in spite of repeated reminders and

assurances of a response, the issue still remains unresolved

since past many years. We would therefore like to request

kind intervention of your good offices so that necessary

ARB.P. 853/2025 Page 16 of 33

instructions be issued to the concerned department to

expeditiously respond to our request and also provide us the

refund of excess Licensee Fee and incorrect annual

escalation charged from us.

We would like to propose that if required and instructed by

your good offices, we are ready and willing to sit across the

table with the concerned official and can provide necessary

information and documents in support of our contention for

refund.

We sincerely hope and trust that with your kind

intervention, we will be able to resolve this issue. Please

note that since this issue has remain unresolved since past

many years, should this issue remains unresolved any

further, we would request your good offices to kindly refer

this matter to a Sole Arbitrator in accordance with Clause

57 of the License Agreement dated 30.09.2011.

We look forward to hearing from you.

Thanking you,

Your sincerely,

For FLEMINGO (DFS) PVT LTD.

Ajay Thoria

AGM – Operation & Compliance.”

29. In the Prasar Bharti v. Visual Technologies India Pvt. Ltd. ARB. P.

558/2023, this Court laid down the essentials of a valid Section 21

ARB.P. 853/2025 Page 17 of 33

Notice. The relevant paragraph read as under:

“9. There is no fixed format of notice invoking arbitration.

The requirement in law is that the party invoking arbitration

must highlight the disputes between the parties and make a

request that in case the disputes are not resolved,

arbitration proceedings shall be commenced. The intention

to invoke the redressal of disputes through the arbitral

process must clearly spelt out in the notice. Hence in my

view, the notice under Section 21 of 1996 Act must clearly

state as follows:-

a. The dispute between the parties.

b. The demand to resolve the disputes as per the envisaged

arbitration clause.

c. In case, the disputes are not resolved the intention to

resort to the arbitral process.

d. The notice must be sent to the respondent.”

30. In the present case, the notices, which are allegedly the notices invoking

arbitration, when read in totality, show that the petitioner is seeking

resolution of its grievances and specifically states that in the event the

grievances of the petitioner remain unresolved, the petitioner will resort

to arbitration and had not invoked Arbitration at that point. Thus, the said

notices cannot be construed as notices invoking Arbitration and are

merely a communication that enumerates the intention of the petitioner to

amicably solve the dispute without resorting to the arbitral clause as

envisaged in the Agreement. In case the same is not so done, the disputes

would be referred to Arbitration. The notices clearly show that there was

ARB.P. 853/2025 Page 18 of 33

no quantification or demand by the petitioner or any rejection of claim by

the respondent. Therefore, the argument of the respondent that the

petitioner has repeatedly invoked and abandoned the process of

Arbitration does not further its case.

31. It is an admitted fact that the petitioner sent various reminders to the

respondent starting 2017, to resolve the disputes with respect to

Minimum Annual Guarantee (“MAG”) charged by the respondent from

03.11.2015 to 31.03.2016 and excess of licence fee charged by the

respondent. It was only on 28.09.2021 that it was discussed for the first

time and on 11.10.2021 that, for the first time, the respondent responded

to and rejected the claims of the petitioner. The letter dated 28.09.2021,

wherein the disputes raised by the petitioner were discussed by the

respondent, and the letter dated 11.10.2021, wherein the disputes raised

by the petitioner were rejected by the respondent, also assume relevance

and read as under:

ARB.P. 853/2025 Page 19 of 33

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ARB.P. 853/2025 Page 22 of 33

32. In the light of the above, since the claims of the petitioner were rejected

by the respondent for the first time on 11.10.2021, it can be concluded

that the cause of action arose on 11.10.2021. Therefore, the breaking

point in the present case is 11.10.2021, as per the dicta laid down in Arif

Azim Co. Ltd. v. Aptech Ltd.,

1

while considering Geo Miller Company

Pvt Ltd (Supra) and M/s B and T AG (Supra), which held that the

notice invoking Arbitration has to be sent within 3 years from the date

of the cause of action. When the respondent specifically rejected the

claims of the petitioner, it was then that the petitioner sent a legal notice

dated 14.03.2022 invoking Arbitration. Hence, I am of the view that the

notice invoking arbitration was sent within the period of limitation i.e. 3

years as prescribed by Arif Azim (Supra) from the breaking point, i.e.

11.10.2021.

33. The respondent has sought to rely on the judgment in Geo Miller

Company Pvt Ltd (Supra) and M/s B and T AG (Supra). The same is

distinguishable on facts. In both the above cases, the claims of the parties

seeking to invoke the Arbitration were culminated and decided by the

respondent. Either a bill was sent to the petitioner, or the claims of the

petitioner were rejected by the respondent.

34. In the present case, the respondent sent a letter dated 18.10.2016 stating

that the case of the petitioner is being considered by the respondent and

the decision regarding the same would be conveyed to the petitioner as

and when considered by the concerned authorities of the respondent. The

same was not so done until 28.09.2021, when the respondent, for the first

time, discussed the issues internally and formed an opinion to reject the

1

(2024) 5 SCC 313. Refer Paragraph Nos. 91,92 and 94.

ARB.P. 853/2025 Page 23 of 33

claims of the petitioner. Only thereafter the claims of the petitioner were

rejected on 11.10.2021 summarily.

35. Further, in response to the said notice dated 14.03.2022, the respondent

further sent an email dated 06.02.2023 wherein it was acknowledged that

the notice dated 14.03.2022 was the reference to arbitration and further

mediation in terms of AAI Mediation Policy, 2022 was suggested by the

respondent, which was a statutory requirement. The said email reads as

under:

ARB.P. 853/2025 Page 24 of 33

ARB.P. 853/2025 Page 25 of 33

36. The mediation began on 30.06.2023, and the last date of mediation was

23.11.2023. Subsequently the mediation process failed. Hence, the failure

report is dated beyond 23.11.2023. Since the parties did not agree to

settle, the mediation process failed. The report of the mediator

documenting the failure of meditation process reads as under:

ARB.P. 853/2025 Page 26 of 33

ARB.P. 853/2025 Page 27 of 33

ARB.P. 853/2025 Page 28 of 33

37. The perusal of the mediation report shows that dispute No. 1 and dispute

No. 2 were part of the mediation between the parties. The same forms the

basis to prima facie conclude that the issues were very much alive

between the parties. At not stage prior to 11.10.2021, the respondent had

rejected /disallowed the issues raised by the petitioner.

38. At this juncture, it is relevant to discuss the dictum laid down in Arif

Azim (Supra) the petition under Section 11 of the 1996 Act is to be filed

within 3 years of valid invocation of arbitration.

39. The learned counsel for the respondent states that even if the notice of

14.03.2022 is considered as the first notice invoking arbitration even then

the present petition filed on 28.05.2025 is beyond the period of three

years and hence liable to be rejected.

40. It will be apposite to discuss the judgment of Unisys InfoSolutions

Private Limited v. Gurbani Media Private Limited, 2024 SCC OnLine

Del 1280, wherein this court has held that even though the notice to

invoke arbitration has been issued on 11.06.2016, the period spent by the

parties in bona fide attempts to amicably resolve the dispute was to be

excluded for calculation of period of limitation. The relevant paragraphs

read as under:

“46. It is the admitted position of the parties that thereafter

they actively engaged in a settlement process through mails,

meetings from 29-7-2016 to 25-4-2017. In these

circumstances, the period taken in mutual discussions, has

to be necessarily excluded.

ARB.P. 853/2025 Page 29 of 33

47. The Notice for invoking arbitration is dated 29-7-2016.

Prima facie, while considering the period of limitation for

the present petition under Section 11 of the Act, 1996 which

was filed on 28-11-2019, on exclusion of the period from

29-7-2016 to 25-4-2017 taken in settlement negotiations, the

present petition is well within the period of three years as

provided under Article 137 of the Schedule to the Limitation

Act, 1963.

48. The present application under Section 11 of the Act,

1996 is therefore, held to be filed within the period of

limitation. In the light of the aforesaid discussions, it is held

that the arbitration has been invoked validly in accordance

with law.”

41. The aforesaid dicta squarely apply in the present case. The date of

invocation of arbitration as per the above set of facts was 14.03.2022.

Thereafter, the parties remained engaged in mediation from 30.06.2023 to

at least until 23.11.2023, panning a period of 147 days. The said

mediation was undertaken in terms of the statutory procedure of the

respondent being AAI Mediation Policy, 2022 at the instance of the

respondent itself. It was the respondent who sought resolution of disputes

through mediation. The petitioner agreed to the same and accordingly,

participated in the proceedings. Hence, the said period of bonafide

mediation has to be excluded while computing the period of limitation.

42. The period of limitation for filing a petition under Section 11 would

commence upon the expiry of 30 days, i.e. 13.04.2022, after invocation of

ARB.P. 853/2025 Page 30 of 33

arbitration. The Arbitration was invoked on 14.03.2022. Thus, the period

of 3 years of filing the Section 11 petition would expire on 12.04.2025. In

view of the principles enunciated in Unisys InfoSolutions Private

Limited (Supra) adding a period of 147 days, spent on mediation, would

make the petition filed on 20.05.2025 very much within the limitation

period.

43. The third objection raised by the respondent is that the petitioner’s claim

No. 2 pertaining to excess of MAG charges for a period of 03.11.2015 to

31.03.2016 never formed a part of the Licence Agreement dated

30.09.2011. The same does not help the case of the respondent.

44. A bare perusal of the entire correspondence detailed above shows that

Concession/MAG was very much a part of the notice invoking

arbitration, the response of the respondent and the mediation report. The

mediation report nowhere states that the mediation qua the dispute No. 2

failed due to the same not forming the part of the Licence Agreement.

Hence, whether MAG/ concession fee forms a part of the Licence

Agreement would require a detailed analysis of the Agreement, conduct

of parties and evidence, which will lie within the domain of Arbitrator.

45. In Krish Spinning (Supra) the Hon’ble Supreme Court held that the issue

of arbitrability of claim is to be determined by the Arbitrator. The

relevant paragraph read as under:

“117. In view of the observations made by this Court

in Interplay Between Arbitration Agreements under the

Arbitration Act, 1996 & the Stamp Act, 1899, In

re [Interplay Between Arbitration Agreements under the

Arbitration Act, 1996 & the Stamp Act, 1899, In re, (2024) 6

ARB.P. 853/2025 Page 31 of 33

SCC 1 : 2023 INSC 1066] , it is clear that the scope of

enquiry at the stage of appointment of arbitrator is limited

to the scrutiny of prima facie existence of the arbitration

agreement, and nothing else. For this reason, we find it

difficult to hold that the observations made in Vidya

Drolia [Vidya Drolia v. Durga Trading Corpn., (2021) 2

SCC 1 : (2021) 1 SCC (Civ) 549] and adopted in NTPC

Ltd. v. SPML Infra Ltd. [NTPC Ltd. v. SPML Infra Ltd.,

(2023) 9 SCC 385 : (2023) 4 SCC (Civ) 342] that the

jurisdiction of the Referral Court when dealing with the

issue of “accord and satisfaction” under Section 11 extends

to weeding out ex facie non-arbitrable and frivolous

disputes would continue to apply despite the subsequent

decision in Interplay Between Arbitration Agreements under

the Arbitration Act, 1996 & the Stamp Act, 1899, In

re [Interplay Between Arbitration Agreements under the

Arbitration Act, 1996 & the Stamp Act, 1899, In re, (2024) 6

SCC 1 : 2023 INSC 1066] .”

46. Further, in Office for Alternative Architecture v. Ircon Infrastructure

and Services Ltd., 2025 INSC 665 the Hon’ble set aside the judgment of

the High Court, which bifurcated the claims into arbitrable and non-

arbitrable holding that the issue of arbitrability of disputes is to be left

open to the Arbitrator. The relevant paragraphs read as under:

“12. As the above decision has been rendered by a three-

Judge bench of this Court after considering the seven-Judge

bench decision of this Court in In Re: Interplay (supra), we

ARB.P. 853/2025 Page 32 of 33

are of the view that the respondent cannot profit from

certain observations made by a two-Judge bench of this

Court in Emaar (supra). In our view, therefore, the High

Court fell in error in bisecting the claim of the appellant

into two parts, one arbitrable and the other not arbitrable,

when it found arbitration agreement to be there for

settlement of disputes between the parties. The correct

course for the High Court was to leave it open to the party

to raise the issue of non-arbitrability of certain claims

before the arbitral tribunal, which, if raised, could be

considered and decided by it.”

47. Thus, the issue of whether the MAG is part of the Licence Agreement

dated 30.09.2011 is to be decided by the Arbitrator. This Court cannot

decide the Arbitrability of disputes. If so done, the same would amount to

venturing outside the domain prescribed for the referral Courts. The

Arbitrator is equally competent, if not more, to rule whether a particular

issue is Arbitrable or not in terms of the Arbitration Agreement.

48. Therefore, it would be apposite to conclude that as per the limited enquiry

which is permissible at this stage, there exists a valid arbitration

agreement between the parties and the petition has been filed well within

the stipulated limitation period.

49. For the said reasons, and without commenting on the merits of the case,

the petition is allowed, and the following directions are issued:-

i) Ms. Justice Shalinder Kaur, (Retd. Judge, Delhi High Court) (Mob.

No. 8130666013 / 9650448075) is appointed as a Sole Arbitrator to

adjudicate the disputes between the parties.

ARB.P. 853/2025 Page 33 of 33

ii) The arbitration will be held under the aegis and rules of the Delhi

International Arbitration Centre, Delhi High Court, Sher Shah Road,

New Delhi (hereinafter referred to as the ‘DIAC’).

iii) The remuneration of the learned Arbitrator shall be in terms of

DIAC (Administrative Cost and Arbitrators’ Fees) Rules, 2018.

iv) The learned Arbitrator is requested to furnish a declaration in terms

of Section 12 of the 1996 Act prior to entering into the reference.

v) It is made clear that all the rights and contentions of the parties,

including as to the arbitrability of any of the claims, any other

preliminary objection, as well as claims/counter-claims and merits of

the dispute of either of the parties are left open for adjudication by

the Sole Arbitrator.

vi) The parties shall approach the Sole Arbitrator within two weeks

from today.

50. The observations and findings of the court recorded above are only for

the purpose of deciding the present petition and the learned Arbitrator is

free to decide all the issues uninfluenced by any observations made

hereinabove. The petition is disposed of in aforesaid terms.

JASMEET SINGH, J.

SEPTEMBER 07

th

, 2026/(MU)