Judgment :- (1) THIS order will dispose of A. P. No. 331 of 2005 under Section 11 of the arbitration and Conciliation Act, 1996 (in short the act) as well as application g. A. No. 211 of 2006 under Section 5 of the Limitation Act, as the two are interconnected and arise out of the same transaction. (2) THE respondents were and are the absolute joint owners of Premises no. 6, Victoria Terrace, Calcutta. On 24th April, 1991. They entered into an agreement in writing with the petitioner, described therein as "developer". Under the said agreement, the petitioner agreed to appoint the developer as the exclusive Developer for the purpose of undertaking the development of the said premises. At that time the premises was in the possession of two tenants viz. , Shaw Wallace and Co. Ltd. in respect of the ground floor flat and Octavious steel and Co. Ltd. (now known as Octavious Tea and Industries Limited) in the first floor flat. The petitioner agreed to get the premises vacated from the tenants. It was also agreed that the developer would keep with the owner Rs. 30 lacs free of interest, out of which a sum of Rs. 15 lacs was to be paid simultaneously with the signing of the agreement and the balance sum of Rs. 15 lacs was to be paid upon sanctioning of the building plan. The deposit was to be refunded in a manner mutually agreed upon by the parties simultaneously with delivery of possession of the owners allocation to the owners. (3) IN terms of the development agreement, the petitioner as developer was required to incur all costs, charges and expenses for the purpose of construction, erection and completion of the new building and also to incur all costs, charges and expenses for preparation of the plan and for sanction by the Calcutta Municipal Corporation. The development agreement specifically provided that the developer was being permitted to acquire the property on "as is where is condition", i. e. subject to the rights of various tenants. Although the developer accepted the aforesaid terms and conditions, but no progress was made to get the tenants evicted or to develop the property. According to the petitioner, the delay was caused by the owners. The respondents have, however, categorically denied the same. Although the developer accepted the aforesaid terms and conditions, but no progress was made to get the tenants evicted or to develop the property. According to the petitioner, the delay was caused by the owners. The respondents have, however, categorically denied the same. It is rather stated in the Affidavit-in-Opposition that the developers "preliminary work" was to negotiate with the said tenants and to get vacant possession from the tenants either by paying compensation or giving them alternative accommodation in the said premises. This work had been assured to be done by the developer expeditiously. Undoubtedly, the developer deposited a sum of Rs. 15,00,000/- with the owners/ respondents under the said agreement. The petitioner/developer was also to deposit a further sum of Rs. 15,00,000/- only upon sanctioning of the building plan, According to the owners, no steps were taken by the petitioner after signing the agreement on 25th April, 1991. (4) ON the other hand, the petitioner alleged that there was litigation with regard to the tenanted premises between two of the tenants i.e. Octavious Tea and Industries and Monsoon India Pvt. Ltd. Therefore, it had become extremely difficult, if not impossible, to obtain vacant possession of the premises. The petitioner could not take any step at the risk of being hauled up for contempt in a Court of Law. (5) NOTWITHSTANDING the aforesaid, the petitioner was ready and willing to perform the agreement. The owners however on 6th March, 2000 through an Advocate wrote a letter dated 24th February, 2000 to the petitioner purporting to cancel not only the development agreement but also a non-existent power of attorney allegedly given by the respondents to the petitioner on the purported grounds that the petitioner had not filed any plan for sanction for development of the said premises. Along with the letter, the respondents purported to return a sum of Rs. 15 lacs to the petitioner by cheque dated 23rd February, 2000. In reply, the petitioner returned the original cheque to the respondents through their Advocate on 10th June, 2000. The respondents however refused to cancel or withdraw the letter cancelling the development agreement. Disputes having arisen between the parties, the petitioner called upon the respondents to refer the matter for arbitration under Clause 17 pf the development agreement:- "17. In reply, the petitioner returned the original cheque to the respondents through their Advocate on 10th June, 2000. The respondents however refused to cancel or withdraw the letter cancelling the development agreement. Disputes having arisen between the parties, the petitioner called upon the respondents to refer the matter for arbitration under Clause 17 pf the development agreement:- "17. In case of any difference or question arising between the parties hereto with regard to this agreement, the same shall be referred to two arbitrators, one to be appointed by each of the parties hereto and this shall be a reference under the provisions of the Indian Arbitration act, 1940 or any statuary enactment or modification thereto. " (6) IN order to seek interim protection, the petitioner filed an application under Section 9 of the Arbitration and Conciliation Act praying for an order of injunction, restraining the respondents from entering into any other development agreement or creating any third party right. In spite of request made by the petitioner, the respondents have not taken any step to appoint arbitrator Therefore, the present application was filed seeking necessary reliefs under Section 11 of the Act. (7) ALONG with the petition under Section 11 of the Act, the petitioner has filed G. A. No. 211 of 2006 under Section 5 of the Limitation Act. In justification of the petition for condonation of delay, it is stated that the petition under Section 9 of the Act had been moved in September 2000 and this court was pleased to pass an order of status quo. Soon thereafter, talks of settlement commenced between the petitioner and the respondents. The talks of settlement were continued from September 01, 2000 till November 14, 2005. In course of discussions held from time to time, all the terms and conditions were finalised and the draft of the settlement were duly prepared and corrected by the respondent No. 1 and the learned Advocate Mr. Japan seal in their own hand writing. Since the talks of settlement continued between the parties, the Advocate-on-Record of the petitioner advised that filing of an application under Section 11 of the Arbitration Act, 1996 would adversely affect the talks of settlement. On the basis of such legal advice, the petitioner did not file the petition under Section 11 of the Act. In the month of July 2005, the Advocate of the petitioner fell ill. On the basis of such legal advice, the petitioner did not file the petition under Section 11 of the Act. In the month of July 2005, the Advocate of the petitioner fell ill. He left the legal profession on health ground without informing the petitioner. Therefore, in his absence the application under Section 9 was dismissed for default on 25th July, 2005. However, when the petitioner found out about the dismissal order an application for restoration of the matter was filed and the matter was restored on 14th November, 2005. As soon as the application under Section 9 was restored, the respondents stopped talks of settlement for the first time and made it clear that they were not interested in carrying on with any further talks of settlement. It was then the present application under Section 11 of the Act was filed. (8) HEARD the Counsel for the parties. At the outset, the learned counsel for the respondents submits that the petition is liable to be dismissed on the sole ground that the same is barred by limitation. Although, there is no time limit prescribed for filing an application under section 11 (6), the application should have been filed within a period of three years from the time when the right to apply accrues, as provided in Article 137 of the Limitation Act, 1963. On the other hand, the learned Counsel appearing for the petitioner has submitted that the petition cannot be dismissed on the ground of limitation as the delay has been sufficiently explained in the application under Section 5 of the Limitation Act. (9) I have considered the submissions made by the learned Counsel. Since the learned Counsel for both the parties are agreed that the limitation for filing a petition under Section 11 (6) would be governed by Article 137 of the Limitation Act, the Court need only examine the question as to whether the petitioner has shown sufficient cause to justify the condonation of delay. It may, however, be noticed that the submissions made by the learned Counsel for the parties with regard to the applicability of Article 137 to an application under Section 11 (6) of the Act is in consonance with the law settled by a catena of judgments of the Supreme Court and different High Courts. It may, however, be noticed that the submissions made by the learned Counsel for the parties with regard to the applicability of Article 137 to an application under Section 11 (6) of the Act is in consonance with the law settled by a catena of judgments of the Supreme Court and different High Courts. Although, all these judgments have been rendered whilst considering the relevant provisions of the Arbitration Act, 1940, the ratios of law would be relevant for considering the analogous provisions of the Arbitration and Conciliation Act, 1996, Here, it may be appropriate to mention some of the judgments and the principles emerging therefrom. (10) MAJOR (Retd.) Inder Singh Rekhi v. Delhi Development Authority, reported in AIR 1988 Supreme Court 1007. In this case, the matter was before the Supreme Court in SLP. The appellant filed an application under section 20 of the Arbitration Act, 1940 seeking a direction from the Court that the respondent be directed to file the arbitration agreement in the Court and the dispute be referred to the arbitration. The learned Single Judge of the Delhi High Court dismissed the application as barred by time. There was an appeal to the Division Bench of the Delhi High Court, which was dismissed. Hence, the Special Leave Petition before the Supreme Court. After granting leave the Supreme Court on the facts of that case allowed the appeal, but it was clearly observed as follows:- "3. The question is, whether the High Court was right in upholding that the application under Section 20 of the Act was barred by limitation. In view of the decision of this Court in Kerala State Electricity Board, trivendrum v. T. P. K. K. Amsom, 1977 (1) SCR 996 : AIR 1977 SC 282 , it is now well-settled that Art. 137 of the Limitation Act, 1963 would apply to any petition or application filed in a Civil Court. " (11) IN the case of The Kerala State Electricity Board, Trivendrum v. T. P. Kunhaliumma, reported in AIR 1977 Supreme Court 282, it has been observed that:- "22. The conclusion we reach is that Article 137 of the 1963 limitation Act will apply to any petition or application filed under any act to a Civil Court. " (11) IN the case of The Kerala State Electricity Board, Trivendrum v. T. P. Kunhaliumma, reported in AIR 1977 Supreme Court 282, it has been observed that:- "22. The conclusion we reach is that Article 137 of the 1963 limitation Act will apply to any petition or application filed under any act to a Civil Court. With respect we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case ( AIR 1969 SC 1335 ) and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of civil Procedure. The petition in the present case was to the District judge as a Court. The petition was one contemplated by the Telegraph act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act. Panchu Gopal Bose v. Board of Trustees for Port of Calcutta, reported in AIR 1994 Supreme Court 1615. In this case, the Supreme court considered the provisions of Section 37 (1) of the 1940 Act in which it was provided that all the provisions of the Indian Limitation Act, 1908 shall apply to arbitrations as they apply to the proceedings in court, which is analogous to Section 43 of the 1996 Act. The appellant therein had executed an agreement on May 27, 1978 to execute the work allotted within 9 months. He clamed that while executing the work he sent the bills on July 12, 1979, but payment was not made. For the first time he sent notice on 28th November, 1989 to the respondent for reference to the arbitration, in terms of the arbitration clause contained in the agreement dated 27th May, 1978, On receipt of the notice, the respondent filed an arbitration suits in this Court under Sections 5, 12 and 33 of the 1940 Act. The learned Single Judge held that the claim was hopelessly barred by limitation. There was no proof that the petitioner had sent any claim on 12th July, 1979. Since the claim was made after 10 long years the arbitration cannot be proceeded with. Accordingly, the learned Single Judge cancelled the arbitration clause contained in the contracts. The learned Single Judge held that the claim was hopelessly barred by limitation. There was no proof that the petitioner had sent any claim on 12th July, 1979. Since the claim was made after 10 long years the arbitration cannot be proceeded with. Accordingly, the learned Single Judge cancelled the arbitration clause contained in the contracts. In these circumstances, it was held that Section 37 (1)of the Act provides that all the provisions of the Indian Limitation Act, 1908 (since amended Act came into force in 1963) shall apply to arbitrations as they apply to the proceedings in Court. "8. Sections 37 (1) of the Act provides that all the provisions of the Indian Limited Act, 1908 (since amended Act came into force in 1963) shall apply to arbitrations as they apply to the proceedings in court. Sub-section (2), employing non-obstante clause, says that notwithstanding any term in an arbitration agreement to the effect that no cause of action shall accrue in respect of any matter required by the agreement to be referred until an award is made under the agreement a cause of action shall, for the purpose of limitation, be deemed to have accrued in respect of any such matter at the time when it would have accrued but for that term in the agreement. Sub-section (3) thereof states that for the purposes of this section and of the Indian Limitation act, 1908 an arbitration shall be deemed to be commenced when one party to the arbitration agreement serves on the other party thereto a notice requiring the appointment of an arbitrator, or where the arbitration agreement provides that the reference shall be to a person named or designated in the agreement, requiring that the difference be submitted to the person so named or designated. Sub-sections (4) and (5) are omitted as being not material. It would, therefore, be clear that the provisions of the Limitation Act would apply to arbitrations and notwithstanding any term in the contract to the contrary, cause of arbitration for the purpose of limitation shall be deemed to have accrued to the party in respect of any such matter at the time when it should have accrued but for the contract. Cause of arbitration shall be deemed to have commenced when one party serves the notice on the other party requiring the appointment of an arbitrator. Cause of arbitration shall be deemed to have commenced when one party serves the notice on the other party requiring the appointment of an arbitrator. The question is when the cause of arbitration arises in the absence of issuance of a notice or omits to issue for long time or contract to the contrary?" (12) ANSWERING this question, the Supreme Court observed as follows:- "11. In West Riding of Yorkshire County Council v. Huddershield corporation, 1957 (1) All ER 669, the Queens Bench Division, Lord goddard, C. J. (as he then was) held that the Limitation Act applies to arbitrations as it applies to actions in the High Court and the making, after a claim has become statute-barred, of a submission of it to arbitration, does not prevent the statue of limitation being pleaded. Russel on Arbitration, 19th Edition, reiterates the above proposition. At page 4 it was further stated that the parties to an arbitration agreement may provide therein, if they wish, that an arbitration must be commenced within a shorter period than that allowed by statute; but the Court then has power to enlarge the time so agreed. The period of limitation of commencing an arbitration runs from the date on which the cause of arbitration accrued, that is to say, from the date when the claimant first acquired either a right of action or a right to require that an arbitration takes place upon the dispute concerned. " "12. Therefore, the period of limitation for the commencement of an arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued. Just as in the case of civil actions the claim is not to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not to be put forward after the expiration of the specified number of years from the date when the claim accrued. " (13) THE aforesaid legal propositions has been reiterated by the Supreme Court in the case of State of Orissa and Anr. v. Damodar Das, reported in AIR 1996 Supreme Court 942, it has been observed that:- "6. " (13) THE aforesaid legal propositions has been reiterated by the Supreme Court in the case of State of Orissa and Anr. v. Damodar Das, reported in AIR 1996 Supreme Court 942, it has been observed that:- "6. In law of Arbitration by justice Bachawat at page 549 commenting on Section 37, it is stated that subject to the Limitation act, 1963, every arbitration must be commenced within the prescribed period. Just as in the case of actions the claim is not to be brought after the expiration of a specified number of years from the date when the cause of action accrues, so in the case of arbitrations the claim is not to be put forward after the expiration of a specified number of years from the date when the claim accrues, For the purpose of Section 37 (1) action and cause of arbitration should be construed as arbitration and cause of arbitration. The cause of arbitration when the claimant becomes entitled to raise the question, that is, when the claimant acquires the right to require arbitration. An application under Section 20 is governed by Article 137 of the schedule to the Limitation Act, 1963 and must be made Within 3 years from the date when the right to apply first accrues. There is no right to apply until there is a clear and unequivocal denial of that right by the respondent. It must, therefore, be clear that the claim for arbitration must be raised as soon as the cause for arbitration arises as in the case of cause of action arises in a civil action. " (14) STEEL Authority of India Ltd. v. J. C. Budharaja, reported in AIR 1999 Supreme Court 3275, in this considering the provision contained in section 37 of the Arbitration Act, 1940, which is analogous to Section 43 of the 1996 Act, it has been observed as follows:- "29. Applying the aforesaid ratio in the present case, right to refer the dispute to the arbitrator arose in 1979 when Contractor gave a notice demanding the amount and there was no response from the appellant and the amount was not paid. The cause of action for recovery of the said amount arose from the date of the notice. Contractor cannot wait indefinitely and is required to take action within the period of limitation. In the present case, there was supplementary agreement between the parties. The cause of action for recovery of the said amount arose from the date of the notice. Contractor cannot wait indefinitely and is required to take action within the period of limitation. In the present case, there was supplementary agreement between the parties. Supplementary agreement nowhere provides that so-called right of the Contractor to recover damages was in any manner saved. On the contrary, it specifically mentions that contractor was yet to execute a considerable portion of the work more particularly described in the schedule to the agreement. And that the contractor has agreed to complete the said balance work on the terms and conditions enumerated in the agreement. Now, in the set of circumstances, contractor cannot wait and approach the authority or the Court for referring the disputes to the arbitrator beyond the period of limitation. Section 37 of the Arbitration Act specifically provides that provisions of the Indian Limitation Act shall apply to the arbitrations as they apply to proceedings in the Court. " (15) IN view of the above, it has to be held that both the Counsel have rightly submitted that the only questions to be determined in this case are as to whether the application filed by the petitioner under Section 11 (6) is barred by limitation? In case, the same is held to be barred by limitation has the petitioner made out a case for condonation of delay under Section 5 of the Limitation Act? (16) THE observations of the Supreme Court extracted above would clearly show that in this case, the delay would have to be calculated from 6th March, 2000 when the owners cancelled the development agreement. So calculated the petition has been filed after a period of five years and five months from the date when the right to file the application/petition accrued. (17) NOW the facts. It is apparent from the pleadings above that the development agreement was executed on 25th April, 1991. It is also matter of records that the petitioner was not able to commence the construction of the building in terms of the development agreement. Therefore, the development agreement was cancelled by the owner on 6th March, 2000 the petitioner, however, started disputing the validity of the termination of the development agreement on 22nd June, 2000. The petition under Section 9 was moved in September 2005. Therefore, the development agreement was cancelled by the owner on 6th March, 2000 the petitioner, however, started disputing the validity of the termination of the development agreement on 22nd June, 2000. The petition under Section 9 was moved in September 2005. This Court granted an order of status quo, but the petition was dismissed for default on 25th July, 2005. On application of the petitioner the matter was restored on 14. 11. 2005. The petition was dismissed on merits by the learned Single Judge on 05. 12. 2005. The application under Section 11 of the Arbitration and Conciliation, 1996 was not moved till 6th December, 2005, although the same had been affirmed on 29th November, 2005 and served upon the Advocate of the respondent on 2nd December, 2005. (18) I am satisfied that the application is clearly barred by limitation. The counsel for the petitioner however argued that the tenants could not be evicted as the respondents failed to execute Power of Attorney in favour of the developer. Therefore, it was not possible to pursue any proceedings against the tenants. In fact, a tenancy was created in favour of Monsoon India Pvt. Ltd. on the asking of the owners, to prevent any encroachments on vacant part of the land to be developed. The development also could not be commenced as in a suit filed by Octavious Tea and Industries against monsoon India Pvt. Ltd. , this Court had appointed a Receiver over the vacant portion of the premises. The appeal filed against the order of the learned single Judge appointing receiver is still pending. There were also talks of settlement which only broke down when the application under Section 9 was restored by order dated 14th November, 2005. Therefore, the delay, if any, ought to be condoned. I have considered the submissions made by the learned counsel for the petitioner. I am unable to accept the aforesaid submissions. There is no admission on the part of the respondents that there were any negotiation between the parties. There is also no material-on-record that pendency of civil litigation in respect of part of the premises was, in any way, a prohibition on the petitioner to take out the arbitration petition. In fact the petitioner was in all probability awaiting the decision in the Section 9 petition, as the petition under Section 11 was moved on 06. 11. There is also no material-on-record that pendency of civil litigation in respect of part of the premises was, in any way, a prohibition on the petitioner to take out the arbitration petition. In fact the petitioner was in all probability awaiting the decision in the Section 9 petition, as the petition under Section 11 was moved on 06. 11. 2005, when the Section 9 petition was dismissed on 05. 11. 2005. (19) IN view of the above, I find that petition is barred by limitation and cannot be entertained. (20) ACCORDINGLY, both the applications being A. P. No. 331 of 2005 under section 11 of the Arbitration and Conciliation Act, 1996 and the application being G. A. No. 211 of 2006 under Section 5 of the Limitation Act are dismissed. There will, however, be no order as to costs.