JUDGMENT CHITRA VENKATARAMAN, J. : This petition under Section 34 of the Arbitration and Conciliation Act, 1996, is by the borrower availing finance facility from the first respondent herein, against the award passed by the arbitrator, the second respondent herein in respect of the hire purchase agreement dated 18.03.1995 marked as Exhibit C-2. The facts leading to the filing of the proceedings invoking arbitration clause under the agreement are as follows : (a) The petitioner, a company, availed of hire purchase finance facility from the first respondent herein for a sum of Rs. 14,26,680. The parties herein entered into a hire purchase agreement on 18.03.1995 whereby, the first respondent company let on hire machinery described in the schedule annexed to the agreement dated 18.03.1995. In terms of the hire purchase agreement, the first petitioner has to pay a sum of Rs. 39,630 every month towards the monthly re-payment which spread over to a period of 36 months from 18.03.1995. The second petitioner herein stood as a guarantor on behalf of the first petitioner company for due compliance of the terms of the agreement. (b) The first respondent alleged that the first petitioner committed default in payment of the hire charges due to the first respondent herein. Hence, the first respondent issued a notice on 09.12.2002 calling upon the petitioners herein as principal debtor and guarantor to pay a sum of Rs. 17,51,878 due as on 09.12.2002 with interest. It is stated that this court in Application No. 90 of 2003 appointed an Advocate Commissioner to take possession of the machinery. However, according to the first respondent herein, the machinery was not found. In the meantime, the first respondent invoked Clause 26 - the arbitration clause contained in the hire purchase agreement and issued notice to the petitioners herein, to which there was no response. The first respondent filed its claim petition stating that as on 06.09.2003, a sum of Rs. 19,20,181.63 was due and payable by the first petitioner towards hire charges and additional finance charges with further interest at the contracted rate of 36% per annum on a sum of Rs. 10,34,122.46 from 06.09.2003 till the date of payment. Being the guarantor, the second petitioner jointly and severally liable was called upon to pay the said amount. (c) On notice, the petitioners filed their counter. 10,34,122.46 from 06.09.2003 till the date of payment. Being the guarantor, the second petitioner jointly and severally liable was called upon to pay the said amount. (c) On notice, the petitioners filed their counter. The second petitioner herein filed his counter stating that the claim was barred by limitation as the claim itself was made only on 06.09.2003 after a lapse of five years. He pointed out that the claim petition rested on the contention that the first respondent received a cheque on 30.03.2000 towards payment due. The petitioners submitted that neither the first petitioner nor the second petitioner issued any cheque on the date alleged. (d) In the counter filed on 28.11.2003, the second petitioner further alleged that on 18.10.2003, a memo was filed by the petitioner herein to direct the finance company to furnish a copy of the alleged dishonoured cheque. However, the first respondent filed a counter stating that the cheque dated 30.03.2000 was not found in the files of the company and hence if found the same would be filed before the arbitrator in the course of the proceedings. The second petitioner contended that the petitioners did not issue any cheque as alleged on 30.03.2000 and that the first respondent had come out with a false case just to maintain the claim as one within limitation. Consequently, the petition was not maintainable. The first respondent, however, maintained its stand that the claim was not barred by limitation and that the cheque would be filed if found. Hence, the preliminary application was not maintainable. (e) The learned arbitrator passed an order on 19.07.2004 that the question of limitation could be gone into at the time of trial. The learned arbitrator further held that the first respondent had undertaken to produce the cheque as and when found and hence no orders were required at the preliminary stage. Consequently, the initial objection was rejected. Thereafter, the second petitioner filed its affidavit on 27.10.2004 contending that he was not a signatory to the alleged hire purchase agreement. But he had been impleaded as he stood as a guarantor by executing a letter of guarantee dated 18.03.1995. He took the plea that the alleged letter of guarantee did not contain any clause for arbitration nor it formed part of the hire purchase agreement. Consequently, he prayed for dismissal of the petition as against the second petitioner. But he had been impleaded as he stood as a guarantor by executing a letter of guarantee dated 18.03.1995. He took the plea that the alleged letter of guarantee did not contain any clause for arbitration nor it formed part of the hire purchase agreement. Consequently, he prayed for dismissal of the petition as against the second petitioner. (f) On 11.05.2005, the sole arbitrator rejected once again the preliminary objection on jurisdiction, taking the view that the question raised by the second petitioner was one of facts and the detailed trial alone would decide as to whether the second petitioner herein executed the letter of guarantee for the hire purchase agreement. Thereafterwards, the second respondent filed its defence. Upon hearing both parties, sole arbitrator passed his award on 24.11.2006 holding that the petitioners are jointly and severally liable to pay the first respondent a sum of Rs. 19,20,181.63 with interest at the rate of 18% p.a. on the principal sum of Rs. 10,34,122.46 from 06.12.2003 till the realisation along with Rs. 22,500 being the cost of the arbitration proceedings. Aggrieved by the said award passed, the present petition is preferred before this court. Learned counsel appearing for the petitioners herein pointed out that the arbitrator failed to advert to the preliminary objection raised as to maintainability of the claim as a time barred claim. The petitioners state that there was no notice served about arbitration proceedings. Further, according to the second petitioner, he had not executed any guarantee document pertaining to the hire purchase agreement under reference. He also raised the issue of limitation and denied the claim of the first respondent that the petitioner had issued a cheque on 30.03.2000 for a sum of Rs. 5,94,450. In support of his contention, learned counsel for the petitioners took me through the various clauses in the agreement as well as the personal guarantee. He made particular reference to the guarantee agreement relied upon by the first respondent that except blanks it contained no details as to the hire purchase agreement number, the amount financed, etc. Apart from this, the date entered in the agreement by hand itself raised doubt as to the bona fides of the agreement. He did not deny the fact that the signature contained was that of the second petitioner. Apart from this, the date entered in the agreement by hand itself raised doubt as to the bona fides of the agreement. He did not deny the fact that the signature contained was that of the second petitioner. He further pointed out that the first petitioner herein did not issue any cheque on 30.03.2000 as had been stated in the statement of accounts. He particularly pointed out to the undertaking given by the first respondent to file the dishonoured cheque to substantiate the stand of the first respondent that it was in fact issued by the first petitioner. He pointed out that the entire claim was made based on just the statement of accounts and that no evidence was marked to support the claim that it was within the period of limitation. He made particular reference to the inconsistent findings recorded by the arbitrator as regards the non-production of the cheque and submitted that going by the last payment made on 03.01.1997, the claim itself was barred. He submitted that no evidence was let in to substantiate the payment alleged to have been made on 30.03.2000 through cheque for which no details are available. In the absence of any material to substantiate the payment, the arbitrator committed an error and illegality in holding that the claim was not barred by limitation. Since the aspect of limitation goes to the root of the jurisdiction of the arbitrator to decide on the amount due, he submitted that the award itself suffers from illegality and hence void ab initio. Learned counsel also placed reliance on Section 18 of the Limitation Act apart from Section 25(3) of the Contract Act and relied upon decisions of the Supreme Court in Sampuran Singh vs. Niranjan Kaur, AIR 1999 SC 1047 and this court in Kalpana Trading Co. vs. Executive Officer, Town Panchayat, Tiruchirapalli, AIR 1999 Madras 371 and in Kapaleeswarar Temple vs. Tirunavukarasu, AIR 1975 Madras 164 in support of his contention that even an acknowledgement of a liability should be during the subsistence of the period of limitation and any acknowledgement thereafter does not revive the period of limitation. Hence, both on account of total lack of jurisdiction as well as the absence of material to substantiate the stand of the first respondent, the award is illegal and the same is liable to be set aside. Hence, both on account of total lack of jurisdiction as well as the absence of material to substantiate the stand of the first respondent, the award is illegal and the same is liable to be set aside. Learned counsel appearing for the first respondent, supporting the award, submitted that having entered into a contract to pay the finance availed of under the agreement, the petitioners were bound by the terms of the contract and having committed the default, the award could not be faulted with. Heard the learned counsel appearing for the parties and perused the materials placed on record. A reading of the Hire Purchase Agreement No. 510646 dated 18.03.1995, marked as Exhibit C-2, shows that it is an agreement between the first respondent as owner of goods and the first petitioner, principal hirer and second petitioner as guarantor. The total amount financed under the hire purchase agreement was a sum of Rs. 14,26,680 payable in 36 monthly instalments of Rs. 39,630. The first schedule appended to the agreement gives the description of the machinery. Clause 26 of the agreement contains the terms for referring a dispute to arbitration. The claim petition of the first respondent referred to the hire purchase agreement dated 18.03.1995 as well as to a deed of guarantee executed by the second petitioner dated 18.03.1995. It based its claim that the first petitioner had failed to pay the hire charges and additional finance charges due to the first respondent and that in spite of several promises, the second petitioner - guarantor also failed to pay the amounts guaranteed. A perusal of the document dated 18.03.1995 signed by the second petitioner shows that it is a personal guarantee executed by the second petitioner herein. But as rightly submitted by the learned counsel for the petitioners, there are no details in the personal guarantee agreement to indicate in respect of which hire purchase agreement the said guarantee was given. It lacks material details as regards the hire purchase agreement number and the date of execution. Apart from this, the details as regard the machinery described therein and the amount for which it was financed are totally different from what had been given under the tripartite agreement of even date marked as Exhibit C-2. It is worthwhile to note that the personal guarantee was for a sum of Rs. Apart from this, the details as regard the machinery described therein and the amount for which it was financed are totally different from what had been given under the tripartite agreement of even date marked as Exhibit C-2. It is worthwhile to note that the personal guarantee was for a sum of Rs. 20,69,250 as against the original tripartite agreement marked as Exhibit C-2 to the tune of Rs. 14,26,680. Hence, on the face of it, one cannot say that the personal guarantee is the same for the hire purchase agreement under which the first petitioner was bound to make the payment. However, leaving aside this personal guarantee for a moment, the agreement dated 18.03.1995 is a tripartite agreement and under Clause 6, the guarantor guaranteed the due performance of the terms of the contract by the first petitioner. The clause reads as follows : "Clause vi - The Guarantor/s, in consideration of the Owner agreeing to let the said Machinery to the Hirer, hereby guarantee/s the due performance by the Hirer of all the clauses and covenants of this agreement and agree/s to pay on demand all monies due or which may become payable to the Owner under this agreement (and not paid by the Hirer) either by way of hire, expenses or damages, repairs, replacements, or other supplies." Going by the terms of this clause, it is clear that the second petitioner had undertaken the obligation of fulfilling the hirer's obligation under the contract in the event of the hirer committing a default. Learned counsel appearing for the petitioner submitted that by so guaranteeing the payment, it could not be said that he had consented for going before the arbitrator on a dispute regarding payment. The guarantee clause appears in the tripartite agreement which carries a clause for referring a dispute to arbitration. Hence, when the guarantor had guaranteed the principal obligation under the contract which carries an arbitration clause, the guarantor is liable in full as much as the principal debtor is liable under the terms of the contract. Hence, the liability of the guarantor on an award passed is co-extensive with that of the principal debtor. However, the liability for its enforceability depends on the aspect of limitation available for making a claim. Hence, the liability of the guarantor on an award passed is co-extensive with that of the principal debtor. However, the liability for its enforceability depends on the aspect of limitation available for making a claim. Learned counsel's contention that the personal guarantee alleged to have been executed by the second petitioner on 18.03.1995 cannot bind the second petitioner on the ground of deficiency in details stands on a different footing; as such, leaving aside the said personal guarantee, the Hire Purchase Agreement No. 510646 certainly binds the second petitioner to the liability of the first petitioner. However, the claim of the petitioners herein on the ground of limitation and on the non-production of the alleged cheque dated 30.03.2000 said to have been issued by the petitioners merit acceptance. A perusal of the statement of accounts on which the claim was made shows that the first respondent received the payment till 03.01.1997. The first respondent claimed the last of payment to have been made on 30.03.2000 through a cheque for a sum of Rs. 5,94,450 for the purpose of sustaining the plea of limitation. However, the statement shows no cheque number and it is stated to have been dishonoured. It is worthwhile to note that the entry as regards this particular cheque dated 30.03.2000 is in contrast to the other cheque payments which were dishonoured but for which cheque numbers were given. A perusal of the claim statement shows that in paragraph 12, the first respondent stated that they had received payment due from the petitioners, the last payment was received through cheque on 30.03.2000 and the same was dishonoured. On such petition filed, the second petitioner herein filed his defence stating that neither this petitioner nor the company, the first petitioner, issued any cheque on the date alleged. The agreement was terminated on 18.02.1998 and the claim petition before the arbitral tribunal was filed on 06.09.2003. It is seen that the petitioners filed a memo on 18.10.2003 before the tribunal to direct the first respondent to furnish the copy of the dishonoured cheque to which the respondent however filed a memo stating that "the cheque dated 30.03.2000 which has been sought by the respondent is at present not to be found in the files of the claimant. The same if found would be filed before the hon'ble tribunal". The same if found would be filed before the hon'ble tribunal". The first respondent submitted that the petitioners had disclosed the same and admitted the liability in the returns filed before the Income Tax Department and hence defended their action. As a preliminary objection, the learned arbitrator considered the issue of limitation and passed an order dated 19.07.2004 holding that "the question of limitation is a mixed question of law and fact. Based on the affidavits and counter-affidavits, the question cannot be decided". Hence, he rejected the application by the petitioners herein as premature. However, he reserved the liberty of the petitioners herein to raise the question of limitation at the time of trial. The learned arbitrator recorded as a matter of fact that the first petitioner had undertaken to produce the disputed cheque and that "if not produced, the respondents are always entitled to advantage of the same at the time of trial". Thus, while preserving the preliminary objection to be considered at the time of final hearing, while passing the final order, the learned arbitrator accepted the claim of the first respondent by raising the following points for consideration : (1) Whether the present arbitration proceeding is valid in law ? (2) Whether the present arbitration proceeding is barred by limitation ? (3) Whether the 2nd respondent stood as guarantor ? (4) Whether the claimant has proved the claim and entitled for the claim amount ? On the question of limitation, learned arbitrator pointed out that the cheque was presented and encashed by the claimant and as such the question of filing a memo for production of the cheque was meaningless. Apart from that, learned arbitrator held that if really the petitioner had not made any payment on the said day, certainly that would be marked in the bank statement that no payments were made on that day and hence, the burden was on the petitioners to prove that they did not issue the cheque. Learned counsel for the petitioners has serious objection to this line of reasoning of the arbitrator and submitted that the burden is certainly on the first respondent herein to show that the claim was not barred by limitation. The placing of the burden on the petitioners was totally illegal. He pointed out that the proceedings were initiated solely on the statement of accounts unsupported by any documentary evidence. The placing of the burden on the petitioners was totally illegal. He pointed out that the proceedings were initiated solely on the statement of accounts unsupported by any documentary evidence. The grievance of the petitioner is that when the plea of limitation remained a fundamental issue before the arbitrator, the same was not given a proper consideration in terms of the burden of proof not being discharged by the first respondent and hence the arbitrator erred in overlooking the basic issue on jurisdiction as to the arbitrability of the dispute. He pointed out the inconsistency in the reasoning of the learned arbitrator as regards the non-production of the alleged cheque. I find full justification in the submission of the learned counsel for the petitioners. As rightly pointed out by the learned counsel, the assumption of jurisdiction by the arbitrator rested on the enforceability of the claim, which was alive for its enforceability. Contrary to the undertaking given by the first respondent before the arbitrator at the time of considering the preliminary objection, the controversial cheque never surfaced to be seen physically at any point of time before the arbitrator at any stage of the proceeding. The very case of the petitioners rested on the contention that they never issued such a cheque to have the limitation calculated from that date. Thus, the burden is wholly on the first respondent to satisfy that the claim is well within the period of limitation. The burden cannot stand discharged by mere accounts statement filed before the arbitrator. The statement of accounts is a summary of the documents which alone give the details of the payment made. The statement of accounts, per se is not sufficient to substantiate the plea of limitation. For the purpose of limitation, the plea of the first respondent rests on the particular cheque alleged to have been issued by the petitioners. In the absence of supporting material and considering the fact that the first respondent did not produce the alleged cheque as undertaken, it is difficult to accept the reasoning of the arbitrator that the burden is on the petitioner to prove that the amount was not paid on that particular date. It may also be noted that the respondent stated that the cheque alleged to have been issued by the petitioner was dishonoured and was not encashed as had been noted by the learned arbitrator. It may also be noted that the respondent stated that the cheque alleged to have been issued by the petitioner was dishonoured and was not encashed as had been noted by the learned arbitrator. The non-production of the cheque certainly speaks adversely on the first respondent. In paragraph 12 of the claim petition, the first respondent admitted that the cheque alleged to have been issued on 30.03.2000 was dishonoured, which resulted in the first respondent issuing a notice on 09.12.2002. It is not the case of the first respondent that the cheque was encashed. On the other hand, the first respondent pleaded that the cheque was dishonoured, if that be so, the first respondent has the legal obligation to produce the dishonoured cheque to substantiate their claim made on the basis of statement of accounts. In the circumstance, I hold that there is absolutely no basis for holding that the cheque was encashed. The claim made just on the statement of accounts without any supportive material fails to prove the question of limitation. There is no question of the petitioner not producing any statement either to prove that the cheque was dishonoured or to disprove the encashment, as had been held by the learned arbitrator. Quite apart from this, the said finding runs contra to what was undertaken by the first respondent in the affidavit before the arbitrator. On the question of limitation, learned counsel appearing for the petitioner submitted that Article 113 of the Limitation Act applied to the present case, as such, the claim being one of recovery of money, the period of limitation cannot extend beyond three years. He pointed out the arbitration notice Exhibit C-7 was issued on 29.03.2003. There was no admission by the petitioner as regards any liability at any point of time. Even the claim based on the cheque referred to by the respondents dated 30.03.2000 as the last payment itself was beyond the period of limitation; hence, even going by the alleged cheque, the claim under Exhibit C-7 notice dated 29.03.2003 is totally hit by the period of limitation. Per contra, learned counsel appearing for the respondent referred to the reasoning of the learned arbitrator that the agreement was a hire purchase agreement and that Article 55 alone applied for the breach of a contract. Per contra, learned counsel appearing for the respondent referred to the reasoning of the learned arbitrator that the agreement was a hire purchase agreement and that Article 55 alone applied for the breach of a contract. The limitation period as per Article 55 of the Schedule to the Limitation Act is three years when the contract is broken. As per the statement of accounts marked as Exhibit C-8, the last payment was made on 30.03.2000 and hence the arbitration reference made on 29.03.2003 was within three years. Consequently, learned counsel appearing for the first respondent submitted that the claim was well within the limitation. Learned arbitrator agreed with the first respondent that Article 55 alone was applicable for breach of contract. We had already seen that the first respondent did not produce the dishonoured cheque. The learned arbitrator although originally noted the undertaking and held that the petitioner could deal with this contention as well as the point of limitation at the time of hearing, however, held that the burden was on the petitioner and took no notice of the fact that first respondent did not produce the alleged cheque to substantiate the plea on limitation. The findings to that extent run contra to what had been held by him while considering the preliminary objection. The perusal of the claim petition before the arbitrator shows that the first petitioner sought for the recovery of Rs. 19,20,181.63 being the hire charges and additional finance charges with interest at the contracted rate on a sum of Rs. 10,34,122.46 from 06.09.2003 till the date of payment in full. Admittedly, the claim petition is not by way of a compensation for breach of any contract. The scope of Article 55 of the Schedule in the Limitation Act denotes payment which a party is entitled to claim on account of loss or damage arising from breach of contract. The claim herein is made on the strength of the hire purchase agreement and consequently, the said article has no relevance for the purpose of this case. As to the contention of the petitioners that Article 113 of the Limitation Act alone apply, the decision relied on by the learned counsel for the petitioners need to be noted. The claim herein is made on the strength of the hire purchase agreement and consequently, the said article has no relevance for the purpose of this case. As to the contention of the petitioners that Article 113 of the Limitation Act alone apply, the decision relied on by the learned counsel for the petitioners need to be noted. In Sampuran Singh vs. Niranjan Kaur (supra), the Apex Court pointed out that an acknowledgement of a liability merely extends the period of limitation and hence, it has to be prior to the expiration of the limitation period. Thus, for an acknowledgement to be effective legally the liability must exist as on the date of acknowledgement. If the period had already expired, any acknowledgement thereafter would not revive under Section 18 of the Act. In so holding, the Supreme Court held in paragraph 9 that : "Section 18, sub-section (1) itself starts with the words "where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made ....". Thus, the acknowledgement, if any, has to be prior to the expiration of the prescribed period for filing the suit in other words, if the limitation has already expired, it would not revive under this section. It is only during subsistence of a period of limitation, if any, such document is executed, the limitation would be revived afresh from the said date of acknowledgement." The petitioner also placed reliance on the decision in Kalpana Trading Co. vs. Executive Officer, Town Panchayat, Tiruchirapalli (supra). This decision is also on the same line of reasoning. It is only during subsistence of a period of limitation, if any, such document is executed, the limitation would be revived afresh from the said date of acknowledgement." The petitioner also placed reliance on the decision in Kalpana Trading Co. vs. Executive Officer, Town Panchayat, Tiruchirapalli (supra). This decision is also on the same line of reasoning. The said decision was considered and approved by the Division Bench of this court in Bharat Heavy Electricals Limited vs. Dowel Erectors, (2005) 1 MLJ 532 , wherein this court held that : "a letter sent by the Collector's office to the defendants asking them to settle the dues, under intimation to the office, does not constitute acknowledgement of liability and sending letter by the higher authorities to settle the accounts, does not constitute acknowledgement of liability." Learned counsel for the petitioners referred to Section 25(3) of the Contract Act that where there is an acknowledgement of the time barred debt it would only be a fresh obligation to the debtor to pay the liability and the said application hence has to comply with the conditions of Section 25(3). The said section came up for consideration in the decision reported in Kapaleeswarar Temple vs. Tirunavukarasu (supra). This related to a case where the tenant resisted the claim for recovery of rent arrears on the ground of limitation. Dealing with the acknowledgement of the liability by the tenant in a letter written long after the period of limitation, this court considered the scope of Section 25(3) of the Contract Act and held : "The reason for the legislature having enacted a provision as Section 25(3) of the Indian Contract Act is not far off to see. It is no doubt true that the Limitation Act provides a certain period during which alone a creditor is entitled to institute action against the debtor for recovery of the debt and if the creditor fails to institute the action within the time allowed to him by law, the debtor gets a vested right and is afforded opportunity to resist the action of the plaintiff on the ground that the claim is barred by limitation. However, it is equally open to the debtor to renounce or waive the right conferred on him by the law of limitation and bind or obligate himself afresh to discharge the debt incurred by him irrespective of the fact the debt had become barred by limitation on the date he gives the fresh undertaking to the creditor to pay off the debt. The principle is now well-known that a person may renounce a benefit of law made for his own protection. Inasmuch as Section 25 clearly lays down that in all the cases referred to in sub-clauses (1) to (3) of Section 25 there is a contract, a creditor who has the benefit of such a contract as is contemplated in sub-clauses (1) to (3) of Section 25 from the debtor is entitled in law to enforce the contract against the obliger and seek recovery of the amount agreed to be paid by the debtor under the contract." This court also referred to the decision of this court in Varadaraja Appa Rau vs. Suryaprakasa Rau, (1899) 9 MLJ 330, which made a reference to the decision in C. Simon vs. M. G. Arogiasami Pillai, AIR 1915 Madras 242. This court further held "while Section 18 of the Limitation Act deals with an acknowledgement made by a debtor, within the period of limitation, the contractual obligation which a debtor enters into under the terms of Section 25(3) has no reference whatsoever to the acknowledged debt being within time or not. In that sense, the provision contained in Section 25(3) is far wider in scope than the acknowledgement in Section 18 of the Limitation Act. The contract entered into under Section 25(3) is an independent and enforceable contract and has no reference to the debt acknowledged under the contract being a live one in the sense that it had not become barred under the law of limitation". In the face of the categorical pronouncement of this court, in order to have the plea of limitation to work in favour of the first respondent, unless there are materials to show that there has been an acknowledgement of debt in the year 2000 to come under Section 25(3) of the Indian Contract Act, learned counsel for the petitioners is right in his contention that the debt was already time barred as on 2000. The claim made by the first respondent invoking the arbitration clause has no life under the Limitation Act to have its maintainability for resolution. There are no materials on record to support the plea of the first respondent that there was an acknowledgement of liability after 1997 and going by the very documents, namely, the statement of accounts, it is clear that after 03.01.1997, no payments had been made and the alleged cheque said to have been issued, but dishonoured on 30.03.2000 itself remain a time barred debt. As to the burden of proof, admittedly when the first respondent offered to produce the cheque, but failed to produce the same in the course of the proceedings before the arbitrator it is difficult to accept the case of the first respondent just by the very entries in the statement of accounts filed before the arbitrator. So long as the entries in the statement remain unproved, the plea of limitation hence remains not proved. Learned counsel for the petitioners pointed out that the guarantee document said to have been executed by the second petitioner contained only blanks and there was no clause for arbitration. It may be noted that as rightly pointed out by the learned counsel for the petitioners that in the order passed by the learned arbitrator on 11.05.2005, the learned arbitrator pointed out that the first respondent had to prove his claim against the guarantor independent of the hire purchase agreement. It was also pointed out that the respondent was to prove why the guarantee document was executed with blanks. He held that since prima facie there was mention about the hire purchase agreement, the second petitioner could not be discharged from the above proceeding. It may also be noted that the learned arbitrator pointed out that the second petitioner had not stated anywhere in the affidavit filed in support of his contention as to the circumstances under which the letter of guarantee was executed and that there was no mention that the letter of guarantee was not for hire purchase agreement, but to some other agreement. A reading of the guarantee agreement as already noted contains no reference to the agreement number or to the date of the agreement. A reading of the guarantee agreement as already noted contains no reference to the agreement number or to the date of the agreement. A comparison of the guarantee agreement Exhibit C-3 with Exhibit C-2, the hire purchase agreement, reveals that the amount mentioned in the guarantee agreement and the machineries given therein have no correlation with the one given under the hire purchase agreement. In any event, the liability of the guarantor depends on the validity of the claim vis-a-vis the principal borrower. In the decision in Syndicate Bank vs. Channaveerappa Beleri, AIR 2006 SC 1874 the Supreme Court held that "when the demand is made by the creditor on the guarantor, under a guarantee which requires a demand, as a condition precedent for the liability of the guarantor, such demand should be for payment of a sum which is legally due and recoverable from the principal debtor. If the debt had already become time barred against the principal debtor, the question of creditor demanding payment thereafter for the first time, against the guarantor would not arise. When the demand is made against the guarantor, if the claim is a live claim (that is, a claim which is not barred) against the principal debtor, limitation in respect of the guarantor will run from the date of such demand and refusal/non-compliance. Where guarantor becomes liable in pursuance of a demand validly made in time, the creditor can sue the guarantor within three years, even if the claim against the principal debtor gets subsequently time barred". As already pointed out, the reading of the personal guarantee agreement carries no details as regards the hire purchase agreement and there are blanks to that effect. There are no materials to link this personal guarantee agreement executed for a sum of Rs. 20,69,250 in respect of machinery, which is totally different from the one disclosed in the schedule to the agreement dated 18.03.1995 with the hire purchase agreement. The mere chance of the second petitioner being a guarantor in the personal guarantee agreement on the alleged date, i.e. 18.03.1995 cannot be a ground for reading the same as relatable to the hire purchase agreement dated 18.03.1995. The mere chance of the second petitioner being a guarantor in the personal guarantee agreement on the alleged date, i.e. 18.03.1995 cannot be a ground for reading the same as relatable to the hire purchase agreement dated 18.03.1995. In the light of the above said decision of the Supreme Court and having regard to the fact that after 1997, there was no acknowledgement of the liability before the expiry of the time limit and the issuance of the cheque on 30.03.2000 itself coming after three years from the last payment date, namely, 31.01.1997, I do not find any legal basis in the submission of the respondents to sustain the plea on limitation. A reading of the final award and the preliminary order passed certainly are in conflict with each other. It is no doubt true that the parties had decided as to the procedure under Section 19 of the Limitation Act. However, that has nothing to do as regards the validity of the claim to be considered in accordance with law. The first respondent made its claim on the basis of the statement of accounts and relied on the cheque alleged to have been issued by the petitioner on 30.03.2000. The initial burden is on the respondents to prove that the claim was made within the period of limitation. The cheque on which the claim of the respondents rested for the purposes of limitation was not produced as undertaken at the time of passing the preliminary order and hence, the fact remains that the respondent had not discharged his burden that the claim was well within time. Going by the very statement, it is not too difficult to hold that the debt is a time barred one. There are no materials produced to save the limitation as prescribed either under Section 18 of the Limitation Act or under Section 25(3) of the Indian Contract Act. Consequently, the award of the tribunal holding the first petitioner liable and that the second petitioner stood as a guarantor to be made jointly and severally liable with the first petitioner lacks legal support. Leaving aside this personal guarantee agreement, the first agreement dated 18.03.1995 is a tripartite agreement. So too, the agreement dated 25.05.1995. Consequently, the award of the tribunal holding the first petitioner liable and that the second petitioner stood as a guarantor to be made jointly and severally liable with the first petitioner lacks legal support. Leaving aside this personal guarantee agreement, the first agreement dated 18.03.1995 is a tripartite agreement. So too, the agreement dated 25.05.1995. Hence, even going by the first agreement dated 18.03.1995 wherein the second petitioner stood as a guarantor unless and until the claim is within the period of limitation, it is difficult to uphold the order of the learned arbitrator. It is no doubt true that in the decision in Oil & Natural Gas Corporation Ltd. vs. Saw Pipes Ltd., AIR 2003 SC 2629 = 2003 (2) Arb. LR 5 (SC), the Apex Court held that the jurisdiction of the court under Section 34 is not that of an appellate court. The contours of jurisdiction under Section 34 is a well prescribed one. In the decision reported in McDermott International Inc. vs. Burn Standard Co. Ltd. and others, (2006) 11 SCC 181 = 2006 (2) Arb. LR 498 (SC) the Apex Court held thus : "53. The 1996 Act makes provision for the supervisory role of courts, for the review of the arbitral award only to ensure fairness. Intervention of the court is envisaged in few circumstances only, like, in case of fraud or bias by the arbitrators, violation of natural justice, etc. The court cannot correct errors of the arbitrators. It can only quash the award leaving the parties free to begin the arbitration again if it is desired. So, the scheme of the provision aims at keeping the supervisory role of the court at minimum level and this can be justified as the parties to the agreement make a conscious decision to exclude the court's jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it. 60. .... The arbitral award can be set aside if it is contrary to - (a) fundamental policy of Indian Law; (b) the interests of India; (c) justice or morality; or (d) if it is patently illegal or arbitrary. Such patent illegality, however, must go to the root of the matter. The public policy violation, indisputably, should be so unfair and unreasonable as to shock the conscience of the court. Such patent illegality, however, must go to the root of the matter. The public policy violation, indisputably, should be so unfair and unreasonable as to shock the conscience of the court. Lastly, where the arbitrator, however, has gone contrary to or beyond the expressed law of the contract or granted relief in the matter not in dispute, would come within the purview of Section 34 of the Act. ...." In a recent decision of the Supreme Court in O.N.G.C. Limited vs. Garware Shipping Corporation Ltd., AIR 2008 SC 456 = 2007 (4) Arb. LR 179 (SC), the Supreme Court, however, held that "there is no proposition that the courts could be slow to interfere with the arbitrator's award, even if the conclusions are perverse, and even when the very basis of the arbitrator's award is wrong". A reading of the award clearly shows that it was concerned with a time barred debt and that the respondent had not substantiated its claim that it was within the period of limitation. The initial burden cast on the respondent had not been discharged in the manner known to law. Since the question of limitation gets at the very root of assumption of jurisdiction, the award suffers from legal infirmity; consequently, I have no hesitation in setting aside the award and thereby allow the petition. In the circumstances, the original petition is allowed and the award dated 24.11.2006 made in Arbitration No. Y.K.R.T.V.S.F. and S/4 of 2003 is set aside. No costs. Consequently, connected applications are closed.

PANDIYAN GRAPHITES INDIA LTD. v. T. V. S. FINANCE AND SERVICES LTD.