Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 1 of 15

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Case: Arb P No.14/2025

c/w

Arb P No.15/2025

Arb P No.16/2025

Arb P No.17/2025

Reserved on: 27.02.2026

Pronounced on : 06.03.2026

Uploaded on : 06.03.2026

Whether the operative part or full

judgment is pronounced: Full

M/s Ace Consultants

….Petitioners

Through:- Mr. Javaid Ahmed, Advocate

V/s

J&K Projects Construction

Corporation Limited and Ors.

…..Respondents

Through:- Mr. Jahangir Dar, GA

\

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR , JUDGE

(JUDGMENT )

01. By this common judgment, the afore -titled four

arbitration petitions involving identical parties and common

questions of law and fact are proposed to be decided together.

02. The petitioner, a proprietorship firm, has filed the

present petitions under Section 11 (6) of the Arbitration and

Conciliation, 1996 (hereinafter to be referred to as ‘Act’)

seeking appointment of an independent arbitrator preferably a

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 2 of 15

retired judge of this Court for adjudication of disputes that

have arisen between the parties.

03. The subject matter of the arbitration petition No. 14

of 2025 is allotment order No. Mech XII/2518-22 dated

10.12.2012 relating to ‘Supply, Installation, Testing and

Commissioning of Two No’s. G plus four 26 passenger bed

lifts and one No. 400 kgs capacity G plus four dumb

weightier at JLNM Hospital Rainawar i Srinagar’. It has

been submitted that whole of the amount due for the work

done has not been released by the respondents and their

outstanding claims have not been cleared so far. The

petitioner has placed on record copy of certificate dated

21.10.2013 issued by respondent No. 3, which shows that in

respect of the contract in question, the total cost of work was

Rs. 67.00 lacs out of which payment of Rs. 40.00 lacs has

been released and the balance outstanding payment is

Rs. 27.00 lacs.

04. The subject matter of the arbitration petition No. 15

of 2025 is allotment order No. Mech XII/2543-47 dated

10.12.2012 relating to ‘Supply, Installation, Testing and

Commissioning of one No. G + four 13 passenger electric

traction lift at Sarie Building, Shreen Bagh, Srinagar’. It

has been submitted that the respondents have not cleared

whole of the amount in respect of the aforesaid work.

According to the certificate issued by respondent No. 3 on

21.10.2013, the cost of the allotted work was Rs. 22.50 lacs

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 3 of 15

out of which an amount of Rs. 5.00 lacs has been released in

favour of the petitioner leaving a balance of Rs. 17.50 lacs.

05. The subject matter of the arbitration petition No. 16

of 2025 is allotment order No. Mech XII/2523-27 dated

10.12.2012 relating to ‘Supply, Installation, Testing and

Commissioning of Two N o’s. (G plus 03 and G plus 04) 26

passenger bed L D at Hospital Hazuri Bagh, Srinagar ’.

According to the petitioner, entire outstanding amount has not

been released in its favour and as per certificate issued by

respondent No. 3, total cost of the allotted work was Rs. 58.00

lacs out of which an amount of Rs. 52.20 lacs has been

released in favour of the petitioner, leaving a balance amount

of Rs. 5.80 lacs.

06. The subject matter of the arbitration petition No. 17

of 2025 is allotment order No. Mech XII/2538-42 dated

10.12.2012 relating to ‘Supply, Installation, Testing and

Commissioning of Two No’s. (G +2) 26 passenger bed lifts

at District Hospital, Baramulla’. It has been submitted that

as per certificate dated 21.10.2013 issued by respondent No. 3

total cost of the work was Rs. 57.00 lacs out of which an

amount of Rs. 39.90 lacs has been released in favour of the

petitioner leaving a balance of Rs. 17.10 lacs.

07. It has been contended by the petitioner that a writ

petition bearing WP(C) No. 2057/2017 was filed by it seeking a

direction upon the respondents for releasing the pending

payments and vide order dated 20.12.2017, the writ petition

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 4 of 15

was disposed of with a direction that the petition be treated as

representation on behalf of the petitioner and the respondents

to accord consideration to the claim of the petitioner as

detailed in the writ petition and to take a decision in

accordance with law.

08. It has been submitted that despite directions of the

writ court, the respondents did not decide the claim of the

petitioner and ultimately the petitioner was constrained to file

a contempt petition bearing CPOWP No. 214/2018 against the

respondents. During the pendency of the contempt petition,

consideration order No. 166 of 2019 dated 23.12.2019 came to

be issued by the respondents whereby claim of the petitioner

in respect of the aforesaid four allotted works was rejected.

Pursuant to the passing of the aforesaid consideration order,

the contempt petition was disposed of by this Court in terms of

order dated 22.10.2020 whereby liberty was granted to the

petitioner to pursue the appropriate remedy as available under

law.

09. It has been submitted that all the afore-mentioned

four allotment orders contain an arbitration clause providing

that in case of any dispute arising between the parties, the

matter shall be referred to arbitration and that decision of the

arbitrator shall be binding upon both the parties.

10. It has been submitted that the petitioner could not

invoke the arbitration clause immediately upon disposal of the

contempt petition, because of Covid-19 pandemic and it was

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 5 of 15

only on 16.05.2023 that the petitioner addressed a

communication to the respondents invoking the arbitration

clause and seeking appointment of an arbitrator in all the four

cases. However, when the respondents failed to take any

action in terms of the arbitration clause, the instant petitions

came to be filed before this Court on 15.05.2025 seeking

appointment of arbitrator.

11. No reply has been filed by the respondents to any of

the four petitions and, therefore, right to file reply was closed.

12. I have heard learned counsel for the parties and

perused record of the case.

13. Learned counsel for the respondents has raised

objection with regard to the maintainability of these petitions

on the ground that the claims projected by the petitioners in

these petitions are stale and time barred and thus, have

become dead and non-arbitrable. It has been contended that

even the letter seeking invocation of arbitration clause issued

by the petitioner is hopelessly time barred and, therefore, the

present petitions are not maintainable.

14. This Court has, while analyzing the legal position

with regard to scope of pre-referral jurisdiction under section

11(6) of the Act in the case of Promark Techsolutions Pvt.

Ltd Vs. UT of J&K & ors (Arbitration Petition No. 45 of 2024

along with connected petitions decided on 29.12.2025 ),

observed as under:

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 6 of 15

“9. The Supreme Court has, in the case of Vidya Drolia v.

Durga Trading Corporation, (2021) 2 SCC 1, while dealing

with the scope of power of the Referral Court under Sections

11 and 8, held that at the referral stage, if it is found that the

claims are ex-facie time barred and dead and there is no

subsisting dispute, the reference can be refused. The relevant

observations of the Supreme Court are reproduced as under:

“148. Section 43(1) of the Arbitration Act states

that the Limitation Act, 1963 shall apply to

arbitrations as it applies to court proceedings. Sub-

section (2) states that for the purposes of the

Arbitration Act and Limitation Act, arbitration shall

be deemed to have commenced on the date

referred to in Section 21. Limitation law is

procedural and normally disputes, being factual,

would be for the arbitrator to decide guided by the

facts found and the law applicable. The court at

the referral stage can interfere only when it is

manifest that the claims are ex facie time-barred

and dead, or there is no subsisting dispute. All

other cases should be referred to the Arbitral

Tribunal for decision on merits. Similar would be

the position in case of disputed “no-claim

certificate” or defence on the plea of novation and

“accord and satisfaction”. As observed in Premium

Nafta Products Ltd, it is not to be expected that

commercial men while entering transactions inter

se would knowingly create a system which would

require that the court should first decide whether

the contract should be rectified or avoided or

rescinded, as the case may be, and then if the

contract is held to be valid, it would require the

arbitrator to resolve the issues that have arisen.

xxx xxx xxx xxx xxx

154…….154.4. Rarely as a demurrer the court

may interfere at Section 8 or 11 stage when it is

manifestly and ex facie certain that the arbitration

agreement is non-existent, invalid or the disputes

are non-arbitrable, though the nature and facet of

non-arbitrability would, to some extent, determine

the level and nature of judicial scrutiny. The

restricted and limited review is to check and

protect parties from being forced to arbitrate when

the matter is demonstrably “non-arbitrable” and to

cut off the deadwood. The court by default would

refer the matter when contentions relating to non-

arbitrability are plainly arguable; when

consideration in summary proceedings would be

insufficient and inconclusive; when facts are

contested; when the party opposing arbitration

adopts delaying tactics or impairs conduct of

arbitration proceedings. This is not the stage for

the court to enter into a mini trial or elaborate

review so as to usurp the jurisdiction of the Arbitral

Tribunal but to affirm and uphold integrity and

efficacy of arbitration as an alternative dispute

resolution mechanism.

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 7 of 15

10. Taking note of the aforesaid ratio laid down in

Vidya Drolia’s case (supra), the Supreme court in the

case of Bharat Sanchar Nigam Ltd. v. M/S Nortel

Networks India Pvt. Ltd., (2021) 5 SCC 738, observed

as under:

44. The issue of limitation which concerns the

“admissibility” of the claim, must be decided by the

Arbitral Tribunal either as a preliminary issue, or

at the final stage after evidence is led by the

parties.

xxx xxx xxx xx

47. It is only in the very limited category of cases,

where there is not even a vestige of doubt that the

claim is ex facie time-barred, or that the dispute is

non-arbitrable, that the court may decline to make

the reference. However, if there is even the

slightest doubt, the rule is to refer the disputes to

arbitration, otherwise it would encroach upon what

is essentially a matter to be determined by the

tribunal.

48. Applying the law to the facts of the present

case, it is clear that this is a case where the claims

are ex facie time-barred by over 5½ years, since

Nortel did not take any action whatsoever after the

rejection of its claim by BSNL on 4-8-2014. The

notice of arbitration was invoked on 29-4-2020.

There is not even an averment either in the notice

of arbitration, or the petition filed under Section 11,

or before this Court, of any intervening facts which

may have occurred, which would extend the period

of limitation falling within Sections 5 to 20 of the

Limitation Act. Unless, there is a pleaded case

specifically adverting to the applicable section, and

how it extends the limitation from the date on

which the cause of action originally arose, there

can be no basis to save the time of limitation.

49. The present case is a case of deadwood/no

subsisting dispute since the cause of action arose

on 4-8-2014, when the claims made by Nortel were

rejected by BSNL. The respondent has not stated

any event which would extend the period of

limitation, which commenced as per Article 55 of

the Schedule of the Limitation Act (which provides

the limitation for cases pertaining to breach of

contract) immediately after the rejection of the final

bill by making deductions.

11. In NTPCL Limited vs. SPML Infra Limited, (2023) 9

SCC 385, the Supreme Court, while discussing the scope

of jurisdiction of the Court under Section11(6) of the Act,

made the following observations:

25. The abovereferred precedents crystallise the

position of law that the pre-referral jurisdiction of

the Courts under Section 11(6) of the Act is very

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 8 of 15

narrow and inheres two inquiries. The primary

inquiry is about the existence and the validity of

an arbitration agreement, which also includes an

inquiry as to the parties to the agreement and

the applicant's privity to the said agreement.

These are matters which require a thorough

examination by the Referral Court. The secondary

inquiry that may arise at the reference stage

itself is with respect to the non-arbitrability of the

dispute.

26. As a general rule and a principle, the

Arbitral Tribunal is the preferred first authority to

determine and decide all questions of non -

arbitrability. As an exception to the rule,

and rarely as a demurrer, the Referral Court

may reject claims which are manifestly and ex

facie non-arbitrable. Explaining this position,

flowing from the principles laid down in Vidya

Drolia , this Court in a subsequent decision

in Nortel Networks held (Nortel Networks case

SCC p. 764, para 45)

“45. … 45.1. … While exercising

jurisdiction under Section 11 as the

judicial forum, the Court may exercise the

prima facie test to screen and knockdown

ex facie meritless, frivolous, and dishonest

litigation. Limited jurisdiction of the Courts

would ensure expeditious and efficient

disposal at the referral stage. At the

referral stage, the Court can interfere

“only” when it is “manifest” that the

claims are ex facie time-barred and dead,

or there is no subsisting dispute.”

27. The standard of scrutiny to examine the non-

arbitrability of a claim is only prima facie.

Referral Courts must not undertake a full review

of the contested facts; they must only be confined

to a primary first review [and let facts speak for

themselves. This also requires the Courts to

examine whether the assertion on arbitrability

is bona fide or not. The prima facie scrutiny of

the facts must lead to a clear conclusion that

there is not even a vestige of doubt that the claim

is non-arbitrable. On the other hand, even if there

is the slightest doubt, the rule is to refer the

dispute to arbitration.

28. The limited scrutiny, through the eye of the

needle, is necessary and compelling. It is

intertwined with the duty of the Referral Court

to protect the parties from being forced to

arbitrate when the matter is demonstrably non-

arbitrable [Ibid.]. It has been termed as

a legitimate interference by Courts to refuse

reference in order to prevent wastage of public

and private resources. Further, as noted

in Vidya Drolia , if this duty within the limited

compass is not exercised, and the Court becomes

too reluctant to intervene, it may undermine the

effectiveness of both, arbitration and the Court .

Therefore, this Court or a High Court, as the case

may be, while exercising jurisdiction under

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 9 of 15

Section 11(6) of the Act, is not expected to act

mechanically merely to deliver a pur ported

dispute raised by an applicant at the doors of the

chosen arbitrator, as explained in DLF Home

Developers Ltd. v. Rajapura Homes (P) Ltd.

12. Recently, the Supreme Court in the case of Aslam Ismail

Khan Deshmukh v. Asap Fluids Pvt. Ltd., (2025) 1

SCC 502, after surveying previous judgments on the issue

made the following observations:

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.

45. As observed by us in Krish Spg., the power

of the referral Court under Section 11 must

essentially be seen in light of the fact that the

parties do not have the right of appeal against

any order passed by the referral Court under

Section 11, be it for either appointing or refusing to

appoint an arbitrator. Therefore, if the referral

Court delves into the domain of the Arbitral

Tribunal at the Section 11 stage and rejects the

application of the claimant, we run a serious risk

of leaving the claimant remediless for the

adjudication of their claims.

46. Moreover, the courts are vested with the

power of subsequent review in which the award

passed by the arbitrator may be subjected to

challenge by any party to the arbitrati on.

Therefore, the courts may take a second look at

the adjudication done by the Arbitral Tribunal at a

later stage, if considered necessary and

appropriate in the circumstances.

13. From the foregoing analysis of the legal position, it is clear

that at the time of considering a petition under Section

11(6) of the Act, unless it is shown that the claim is ex-

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 10 of 15

facie time barred or hopelessly time barred, the Court

exercising power under Section 11(6) of the Act for

appointment of Arbitrator should not reject such

application. If there is slightest doubt with regard to

arbitrability of the claim on account of it being time

barred, the issue for determination in this regard should

be left to the Arbitrator and the Court while exercising its

power under Section 11 of Act should not venture to

determine the said issue at reference stage.”

14. In the same case, this court also considered the

question as to what is the period of limitation for a claim to

become non-arbitrable or stale and what is the period of

limitation for filing a petition under section 11 of the Act. In

this regard, paras 15 to 18 of the said judgment are relevant to

the context and same are reproduced as under:

“15. Section 43 of the Act provides that Limitation Act, 1963,

shall apply to arbitrations as it applies for proceedings in

court. Sub-section (2) of the said provision further provides

that the arbitration shall be deemed to have commenced on

the date referred in Section 21 whereas Section 21 of the Act

provides that unless otherwise agreed by the parties, the

arbitral proceedings in commenced on the date on which a

request for reference of the dispute to arbitration is received by

the respondent.

16. A conjoint reading of these provisions would show that the

provisions of the Limitation Act apply to all proceedings under

the Act, both in court and in arbitrationexcept to the extent

expressly excluded by the provisions of the Act. In this regard,

support can be drawn from the ratio laid down by the

Supreme Court in the case of Consolidated Engineering

Enterprises v. Irrigation Department, (2008) 7 SCC 169

17. In the Arbitration Act, no limitation period has been

prescribed for filing an application under Section 11.

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 11 of 15

Therefore, Article 137 of the Schedule to the Limitation Act

would apply, meaning thereby that the period of limitation for

filing an application under Section 11 of the Act would arise

when right to apply accrues to the petitioner. There is

distinction between the period of limitation for enforcing a

claim against a party and the period of limitation for filing a

petition under Section 11 of the Act. The Supreme Court has,

in the case of J. C. Budhraja v. Orissa Mining Corporation

Ltd. (2008) 2 SCC 444, explained the distinction between the

period of limitation for filing a petition and the period of

limitation as to the claims being barred by time, in the

following manner:

“25. The learned counsel for the appellant

submitted that the limitation would begun to

run from the date on which a difference arose

between the parties, and in this case the

difference arose only when OMC refused to

comply with the notice dated 4-6-1980 seeking

reference to arbitration. We are afraid, the

contention is without merit. The appellant is

obviously confusing the limitation for a petition

under Section 8(2) of the Arbitration Act, 1940

with the limitation for the claim itself. The

limitation for a suit is calculated as on the date

of filing of the suit. In the case of arbitration,

limitation for the claim is to be calculated on the

date on which the arbitration is deemed to have

commenced.

26. Section 37(3) of the Act provides that for

the purpose of the Limitation Act, an arbitration

is deemed to have been commenced when one

party to the arbitration agreement serves on the

other party thereto, a notice requiring the

appointment of an arbitrator. Such a notice

having been served on 4-6-1980, it has to be

seen whether the claims were in time as on that

date. If the claims were barred on 4-6-1980, it

follows that the claims had to be rejected by the

arbitrator on the ground that the claims were

barred by limitation. The said period has

nothing to do with the period of limitation for

filing a petition under Section 8(2) of the Act.

Insofar as a petition under Section 8(2) is

concerned, the cause of action would arise

when the other party fails to comply with the

notice invoking arbitration. Therefore, the period

of limitation for filing a petition under Section

8(2) seeking appointment of an arbitrator cannot

be confused with the period of limitation for

making a claim. The decisions of this Court

in Major (Retd.) Inder Singh

Rekhi v. DDA, Panchu Gopal Bose v. Board

of Trustees for Port of Calcutta and Utkal

Commercial Corpn. v. Central Coal Fields

Ltdalso make this position clear.

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 12 of 15

18. From the foregoing analysis of legal position, it is deduced

that the cause of action for filing a petition under Section 11 of

the Act would arise when the opposite party fails to comply

with the notice invoking arbitration clause whereas limitation

for the claim has to be calculated on the day on which the

arbitration is deemed to have commenced. Thus, the cause of

action for filing a petition under Section 11 of the Act would

arise when the respondent fails to respond to the notice for

invocation of arbitration clause and the limitation with regard

to claim, which is subject matter of arbitration, has to be

calculated as on date when the notice for invocation of

arbitration clause is issued. Therefore, if the claim of a party

filing a petition under Section 11 of the Act is time barred as

on date of invocation of the arbitration clause, then, of course,

his claim would qualify to be a dead claim and, as such, non-

arbitrable. Similarly, if a party files a petition beyond a period

of three years after invocation of the arbitration clause, his

petition will be time barred.”

15. With the aforesaid legal position in mind, let us now

analyze the facts of the present case. As per the case of the

petitioner, its claim was rejected by the respondents when

consideration order dated 23.12.2019 came to be passed by

the respondents pursuant to directions passed by the writ

court. It is to be noted that in spite of passing of the said

order, the petitioner continued to pursue the contempt

proceedings, which came to be closed on 22.10.2020 leaving it

open to the petitioner to avail appropriate remedy.

16. Admittedly the arbitration clause has been invoked

by the petitioner in May 2023. The cause of action for

invoking the arbitration clause arose in favour of the petitioner

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 13 of 15

only when the respondents declined its claim by passing

consideration order dated 23.12.2019 and thereafter when the

court, exercising contempt jurisdiction, refused to interfere in

the matter leaving it open to the petitioner to avail appropriate

remedy. Thus, when the petitioner invoked the arbitration

clause in May 2023, the same was done by it within the

prescribed period of three years. Thereafter the petitioner has

filed the instant petition in May, 2025 well within the

prescribed period of three years from the date of invocation of

arbitration clause.

17. Thus, it cannot be stated that the claim of the

petitioner is ex facie time barred because it has invoked the

arbitration clause within three years of refusal of respondents

to entertain its claim and the present petition has been filed

within three years of invocation of the arbitration clause.

Though this issue has to be gone into and analyzed by the

arbitral tribunal before considering the claims of the petitioner

on merits, this Court, while exercising its power under Section

11 (6) of the Act, cannot go into this issue and it is only the

arbitral tribunal, who can go into all these issues during

arbitral proceedings.

18. For the aforesaid reasons, the objection raised by

the respondents with regard to maintainability of these

petitions and non-arbitrability of the claims of the petitioner on

account of the same being time barred is rejected. Once it is

held that issue with regard to arbitrability of the claims of the

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 14 of 15

petitioner/company on the ground of limitation is a matter,

which is required to be gone into by the arbitral tribunal and

once it has been found that there is a arbitration clause

existing between the parties, which has been invoked by the

petitioner without any response from the respondents, there is

no other option available with this Court except to refer the

disputes arising between the parties to arbitral tribunal.

19. Accordingly, the petitions are disposed of by referring

all the disputes and differences covered by the agreements,

to the learned Sole Arbitrator in the following terms:

(I) Hon’ble Mr. Justice Rashid Ali Dar, former

judge of this Court, is appointed as the Sole

Arbitrator to adjudicate upon the disputes

and differences between the parties arising

out of and in connection with the agreement

referred to above.

(II) A copy of this order be communicated to the

learned Sole Arbitrator by the Registry of

this Court within a period of ten days from

today.

(III) The learned Sole Arbitrator is requested to

forward the statutory statement of

disclosure under Section 11(8) read with

Section 12(1) of the Act of 1996 to the

parties within a period of two weeks from

the date of receipt of this order.

Arb P Nos. 14/2025,

15/2025, 16/2025 & 17/2025

Page 15 of 15

(IV) The parties shall appear before the learned

Sole Arbitrator on a date and place to be

fixed by the learned Sole Arbitrator.

(V) All the arbitral costs and fee of the Arbitral

Tribunal shall be borne by the parties

equally and shall be subject to final award

that may be passed by the learned

Arbitrator in relation to the costs.

(VI) The learned Arbitrator shall, before

proceeding to decide the merits of the

claims, decide the issue with regard to

limitation after hearing the parties.

14.

(SANJAY DHAR )

JUDGE

JAMMU

06.03.2026

Naresh/Secy.

Whether the judgment is speaking: Yes

Whether the judgment is reportable: No

…