JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. S.N. Mitra, the learned Senior Counsel assisted by advocates Mr. G. Khetan and Mr. M. Choudhury appearing for the petitioner. The respondent is represented by learned Counsel Mr. A. Roy and Mr. V.V.V. Sastri. Through this application under Section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as "the Arbitration Act") the petitioner prays for appointment of Arbitrator to adjudicate the dispute arising out of the agreement dated 14.9.1999 (Annexure-B). Through this agreement executed by the petitioner under its previous name 'M/s. Derby Tea & Industries Limited' and the respondent Rossell Tea Limited', the petitioner had agreed to transfer the Nagrijuli Tea Estate for a total consideration of Rs. 18.00 crores. The consideration amount was payable in a phased manner and after possession of the T.E. is delivered, the respondent was required to bear the expenses for managing the T.E. w.e.f. 11.10.1999 i.e. the date of delivery of possession. The record shows that between 29.9.1999 to 31.3.2000, Rs. 17.5 crores was paid by the respondent but the balance amount of Rs. 50 lakh is not yet paid. 2. Earlier the petitioner filed the Money Suit 3/2003 in the Court of the District Judge, Nalbari for recovery of the balance consideration. But the learned District Judge through his order dated 17.2.2004 (Annexure-J) after considering the objection of the defendant and bearing in mind the forum selection clause in the agreement of 14.9.1999 held that although the subject matter of the suit is situated within the jurisdiction of the Court, the Court at Nalbari has no jurisdiction to try the suit. Accordingly the plaint was returned to the plaintiff under Order 7 Rule 10 of the C.P.C. for presentation in the proper Court. But after this decision the petitioner didn't proceed further to recover the balance consideration. 3. A notice dated 10.4.2012 (Annexure-K) was then issued by the petitioner alleging breach of contract and the respondent was informed about rescinding the contract and they were called upon to return back the possession of the Nagrijuli Tea Estate and on their part, the petitioner agreed to refund Rs. 17.5 Crores to the respondent, on receipt of possession of the T.E. Through a simultaneous letter dated 10.4.2012 (Annexure-L), the petitioner invoked the Arbitration Clause in the agreement dated 14.9.1999 and requested for reference of the dispute for arbitration to the nominated Arbitrator. 4. 17.5 Crores to the respondent, on receipt of possession of the T.E. Through a simultaneous letter dated 10.4.2012 (Annexure-L), the petitioner invoked the Arbitration Clause in the agreement dated 14.9.1999 and requested for reference of the dispute for arbitration to the nominated Arbitrator. 4. In their response of 23.4.2012, the respondent did not agree to the suggested Arbitrator and they took the stand that there is no scope for arbitration since the alleged dispute pertain to a period prior to 2002 and there is no fresh cause of action, after dismissal of the Money Suit 3/2002 by the learned District Judge, Nalbari. 5. After receiving the above reply, previously an application under Section 11 of the Arbitration Act was filed by the petitioner before the Calcutta High Court but as the Calcutta High Court did not have territorial jurisdiction on the matter, the A.P. No. 385/2012 was withdrawn on 9.10.2012 with liberty to file a similar application in the appropriate forum. Consequently the present case is filed in this Court. 6.1 Representing the petitioner Mr. S.N. Mitra, the learned Senior Counsel submits that a valid arbitration agreement was executed by the parties and since a live claim arise out of the said agreement, an Arbitrator should be appointed. 6.2 Projecting that the respondent failed to pay the balance consideration sum of Rs. 50 lakh and had also defaulted in taking steps for execution and registration of the Deed of Conveyance for the Nagrijuli Tea Estate, the petitioner contends that it is entitled to seek recovery of possession, as per their letter(s) of 10.4.2012. 7.1 According to the respondent, the petitioner's application under Section 11 of the Arbitration Act is covered by Article 137 of the Limitation Act, 1963, which provides for a limitation period of 3 years and accordingly it is argued that the application is barred by time. 7.2 Resisting the petition, the respondent's advocate Mr. A. Roy submits that the petitioner's application is barred under Section 53A of the Transfer of Property Act, 1883 (hereinafter referred to as "the T.P. Act") and therefore no order is justified in this case. 7.3 Moreover since the petitioner's Money Suit 3/2003 for recovery of the balance sale consideration was not entertained by the learned District Judge, Nalbari and the plaintiff failed to take any subsequent steps thereafter, the statutory rights have crystallized in favour of the respondents. 8. 7.3 Moreover since the petitioner's Money Suit 3/2003 for recovery of the balance sale consideration was not entertained by the learned District Judge, Nalbari and the plaintiff failed to take any subsequent steps thereafter, the statutory rights have crystallized in favour of the respondents. 8. In order to consider the above arguments, it must be borne in mind that the power of the Court under Section 11(6) of the Arbitration Act is a judicial power and while considering application for appointment of Arbitrator, the Chief Justice or his delegetee is expected to decide on the maintainability of the application. According to the decision in S.B.P. & Co. vs. Patel Engineering Ltd. reported in (2005) 8 SCC 618 , the Court is required to examine whether a valid arbitration agreement is in existence and whether a live claim arise out of such agreement which calls for appointment of Arbitrator. 9. On the issue of a valid claim, it would be relevant to consider when the breach occurred, giving rise to a cause of action for the petitioner. The impact of the order passed by the learned District Judge, Nalbari, when it returned the plaint in the Money Suit 3/2003 to the plaintiff will also have a bearing on the issue. 10. Here the parties don't dispute that out of the total consideration of Rs. 18 Crores, the respondent is yet to pay Rs. 50 Lakh to the petitioner. Under Clause 3(c) of the agreement, the balance Rs. 50 Lakh is payable after receipt of sale permission and it was provided by Clause 8 that the purchaser is responsible for obtaining the permission at their own cost. Here the petitioner through their letter of 10.4.2012 informed the respondent that as per the agreement of 14.9.1999, the possession of the T.E. was handed over on 11.10.1999 and thereafter Income Tax Clearance Certificate was obtained and furnished to the respondent. The application for sale permission was also signed by the petitioner and delivered to the purchaser, to enable them to pursue and obtain permission from the Deputy Commissioner. Alleging various breach of the agreement clauses, the petitioner rescinded the contract and requested return of possession of the T.E. In their 2nd letter of 10.4.2012 (Annexure-L), the petitioner invoked the Arbitration Clause and nominated the arbitrator. Alleging various breach of the agreement clauses, the petitioner rescinded the contract and requested return of possession of the T.E. In their 2nd letter of 10.4.2012 (Annexure-L), the petitioner invoked the Arbitration Clause and nominated the arbitrator. Only thereafter in response to the petitioner's two letters of 10.4.2012, the respondent in their reply of 23.4.2012 indicated that sale permission for conveyance of the T.E. was obtained by the purchaser but even at that stage, the date of permission is not reflected in the respondent's letter. 11. If the permission to execute the sale deed was indeed obtained by the respondents as far back as on 21.11.2000, they should have arranged for execution by paying the balance consideration by informing the petitioner. But the respondent never informed until 10.4.2012 that the office of the Nalbari Deputy Commissioner had accorded Sale permission on 21.11.2000 Such delayed information suggests that the respondent after taking possession of the T.E. were in no hurry to formalise the sale. From this an adverse inference on the negative role of the respondent in execution of agreement can be drawn. 12. Of course since the possession of the T.E. was handed over to the purchaser on 11.10.1999 in pursuant to the agreement of 14.9.1999, the respondent may reasonably object to recovery of possession, under Section 53A of the T.P. Act. However the obligation of the transferee to perform his part of the bargain can't also be overlooked because it was for the purchaser to discharge few specific obligations under the agreement. The possession of the T.E. was given on the understanding that the purchaser will perform their part of the bargain set out in the agreement. But although the petitioner signed the application form for sale permission and furnished the Income Tax Clearance Certificates, until they issued the Termination letter and invoked the arbitration clause, the respondent hadn't given any information on discharging their obligation under the agreement. Therefore in the face of breach of agreement by the possessor, I hold that respondent's are disentitled to protection under Section 53A of the T.P. Act and consequently the petitioner's action can't be rejected on this score. 13. Therefore in the face of breach of agreement by the possessor, I hold that respondent's are disentitled to protection under Section 53A of the T.P. Act and consequently the petitioner's action can't be rejected on this score. 13. In this case the petitioner's main claim is for recovery of possession of the T.E. and since breach of condition is made the basis to reclaim possession, I am of the view that Article 66 of the Limitation Act is attracted and the action is not barred by limitation. 14. On the impact of the District Court's order of 17.2.2004, it is apparent that the plaint in the Money Suit 3/2003 was returned for filing in the appropriate forum under Order 7 Rule 10 of the C.P.C. Therefore petitioner's claim for recovery of the balance consideration wasn't adjudicated on merit by the learned District Judge. Therefore, I hold that the petitioner can't be non-suited on this count. 15. In this application under Section 11 of the Arbitration Act, the jurisdiction of this Court is not an issue. Moreover there is a valid arbitration agreement between the parties. Therefore bearing in mind that the claim is not time barred and is a live dispute, I am of the view that arbitrator should be appointed in this case. 16. As was held in S.B.P. & Co. (supra) the arbitrator has the power to decide on evidence whether the live claim is capable of being arbitrated upon. The merit of the claim is also entirely within the domain of the arbitrator. 17. In view of above the petitioner is found to have made out a case for appointment of arbitrator under Section 11 of the Arbitration Act. Consequently their prayer is granted. Post this case on 30.8.2013 for naming the arbitrator.