JUDGMENT : P.C.: 1. This is an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, “the Act”) whereby the applicant has prayed for appointment of an arbitral tribunal to adjudicate the disputes and differences which have arisen between the parties under the Articles of Agreement dated 29 December, 2014. 2. The relevant facts are: the applicant agreed to sell to the respondent commercial premises bearing Unit No. UGB 81 & 82, collectively admeasuring 506 sq. ft. (carpet area) equivalent to 47.00 sq. mtrs (carpet area) or thereabouts situated on the Upper Ground Floor of the building known as “Phoenix Paragon Plaza” for an amount of Rs.1,92,28,000/-. Although the respondent made some initial part payment, the balance payment was not forthcoming. The applicant, in these circumstances, made various demands as set out in paragraph 10 of the application which are stated to be by the applicant’s demand letters dated 06 June 2014, 21 June 2014, 26 June 2014, 02 July 2014, 12 July 2014, 28 October 2014, 03 December, 2014 and 24 December 2014. The respondent accordingly made a part payment of Rs.39,36,100/-. 3. On such backdrop, the respondent approached the applicant in December, 2014, when it was agreed between the parties that the Articles of Agreement be registered with the Registrar of Sub-Assurances at Kurla, Mumbai. Such agreement dated 20 December, 2014 was accordingly registered on 05 January, 2015. The respondent assured that after execution of such agreement, an amount of Rs.1 Crore shall be paid by the respondent to the applicant, however, the respondent failed to make such payment. The applicant, in these circumstances, by its letter dated 10 January, 2015, requested the respondent to make payment of the balance amounts. As no payment was forthcoming, the applicant by its notice dated 07 February, 2015 as addressed to the respondent, terminated the said agreement. It appears that after having terminated the agreement, the applicant did not take steps to claim any damages, in the event any losses were caused to the applicant by any breach of the agreement caused by the respondent or to seek any other relief as a result of such termination. Thus, the termination having taken place on 07 February, 2015, the cause of action for the applicant to initiate any proceeding arose on 07 February, 2015. Thus, the termination having taken place on 07 February, 2015, the cause of action for the applicant to initiate any proceeding arose on 07 February, 2015. The limitation under Article 55 or 59 of the Limitation Act as the case may be, to seek any relief arising as a consequence of termination would be three years from the date of termination. 4. It needs to be noted that after termination of the agreement, the applicant issued a public notice on 10 July, 2015 as published in the local newspapers i.e. Free Press Journal, Navshakti and a Urdu Newspaper, informing the public at large of termination of the said agreement between the applicant and the respondent. It can even be assumed that the starting point of the limitation is such public notice of termination. 5. Be that as it may, a perusal of the record indicates that almost for a long period of 6 years from the date of termination of the agreement, no steps whatsoever were taken by the applicant to assert/ claim any rights under the agreement which stood terminated on 07 February, 2015 and/or after the public notice dated 10 July, 2015, if the applicant was to be of the opinion, that the applicant had any claim against the respondent or for any other cause of action under the said agreement. 6. On 08 May, 2021 the applicant, for the first time, issued a notice to the respondent invoking the arbitration agreement, as contained in clause 74 of the agreement dated 29 December 2014, purportedly calling upon the respondent to refer the disputes and differences between the parties to arbitration. From a reading of said notice invoking arbitration, it appears that primarily the claim of the applicant was for recovery of an amount of Rs.1,52,91,900/-. This is quite peculiar as the balance amount which was payable under the agreement could only have been claimed and/or called upon to be paid by the respondent, if the agreement was subsisting and not after the agreement was terminated. As this would, in fact, amount to calling upon the respondent to perform the contract. The relevant contents of the said notice are required to be noted which read thus:- “3. As this would, in fact, amount to calling upon the respondent to perform the contract. The relevant contents of the said notice are required to be noted which read thus:- “3. You are aware that as per your request, my client agreed to sell and transfer the right, title and interest with respect to the said premises in your favour on ‘ownership basis’ for total consideration of Rs.1,92,28,000/- (Rupees One Crore Ninety-Two Lakhs and Twenty-Eight Thousand only). The terms of payment as per the said agreement is as follows: Terms of payment as per the Registered Agreement Due Date Amount Due (in Rs.) Status Earnest Money Deposit 39,36,100 Paid 15th June, 2014 18,32,300 Unpaid 7th July, 2014 1,34,59,600 Unpaid Total Consideration 1,92,28,000 4. The present dispute has arisen due to the breach of the said Agreement by you for non-payment of the consideration amount. Out of the Total consideration amount, you have only paid Rs.39,36,100/- (Rupees Thirty-Nine Lakhs Thirty-Six Thousand One Hundred Only) as Earnest Money Deposit to my client before the execution of the said Agreement. 5. As per clause 5 of the said Agreement, you were also liable to pay on or before registration of the said Agreement an amount of Rs.5,47,240/- (Rupees Five Lakhs Forty Seven Thousand Two Hundred Forty Only) towards mandatory ancillary charges. Further you were also liable to pay an amount of Rs.1,92,280/- as VAT charges and an amount of Rs.7,16,833/- as Service tax which amounts were statutory payments to be paid at the time of registration of the said Agreement. You have failed to pay all of the above amounts. Further as per Clause 36 of the said Agreement, you are also liable to pay an interest of 21% per annum with respect to the delay in the payment of outstanding dues. The said clause is reproduced herein below for ready reference ………………….. 6. My client further states that you have repeatedly failed to make balance payment in terms of the said Agreement despite repeated reminders made by my client. In view thereof, my client was constrained to terminate the said Agreement and issued Notice dated 07th February 2015 for Termination due to the continuous breach of the terms of the said Agreement entered between you and my client and the Earnest Money Deposit stands forfeited as per the terms of the said Agreement. In view thereof, my client was constrained to terminate the said Agreement and issued Notice dated 07th February 2015 for Termination due to the continuous breach of the terms of the said Agreement entered between you and my client and the Earnest Money Deposit stands forfeited as per the terms of the said Agreement. The Termination Notice was sent in accordance with Clause 37 of the said Agreement and the said clause is being reproduced herein below for ready reference …………… 7. As per the terms of the said Agreement, you were contractually bound to execute and register a Deed of Termination / Cancellation on termination of the said Agreement, which you have failed to do so till date and have thus breached the terms of the said Agreement and after repeated requests to execute a Termination / Cancellation Deed, you have failed to abide by the same. 8. In view of the disputes and differences that have arisen between the parties and for determination of the disputes, the Agreement stipulates for invocation of the Arbitration clause as per terms of the said Agreement. As per clause 74 of the said Agreement, it is clearly stated that if any dispute arises out of the Agreement, it shall be referred to arbitration and the said clause has been reproduced herein for ready reference ……… 9. In view of the terms of the said Agreement, it is notified that we are hereby invoking the Arbitration clause as per terms of the said Agreement to be adjudicated as per the provisions of the Arbitration and Conciliation Act, 2015 and are proposing appointment of Mr. Vishal Kanade as the Arbitrator whose decision shall be final and binding on both the parties. 10. By virtue of the same you may confirm to the appointment of Mr. Vishal Kanade as the Arbitrator or you may nominate/suggest another person to adjudicate the dispute, in case, you are not agreeable to appointment of the said Mr. Vishal Kanade to adjudicate the dispute, you are requested to reply to this letter within a period of 15 days from receipt of the said Notice, failing which we shall be constrained to approach the Hon’ble Court for the appointment of the Arbitrator.” (emphasis supplied) 7. Vishal Kanade to adjudicate the dispute, you are requested to reply to this letter within a period of 15 days from receipt of the said Notice, failing which we shall be constrained to approach the Hon’ble Court for the appointment of the Arbitrator.” (emphasis supplied) 7. As the respondent failed to reply to the notice dated 08 May, 2021 of the applicant’s advocates which according to the applicant amounted to a refusal of the respondent to refer the disputes to arbitration, the present application has been filed under Section 11 of the Act. 8. Despite service of notice, the respondent has never appeared in the present proceedings. The order dated 16 November, 2021 passed by this Court (B.P. Colabawalla, J.) would indicate that the applicant stated that it was exploring a possibility of a settlement. However, as observed in the subsequent order dated 25 November, 2021 passed by this Court (B.P. Colabawalla, J.), a statement made on behalf of the applicant, that the settlement had broken down, came to be recorded. The Court had, thus, issued directions to serve the respondent. Accordingly, the respondent was served, however, he has failed and/or has refused to appear. 9. It is on this backdrop, the matter was listed before this Court on 28 February, 2022 when the applicant was heard. This Court, in the above circumstances, being prima-facie of the opinion, that the claim of the applicant itself being evidently time barred, passed the following order:- “1. Prima-facie, in my opinion, the present proceedings are time barred. Agreement in question dated 29 December 2014 was terminated by the applicant on 07 February, 2015. No steps whatsoever were taken within the prescribed period of limitation, from the date of termination of the agreement, either seeking specific performance and/or any other reliefs arising under and as a consequence of such termination. 2. The invocation notice dated 08 May, 2021 indicates that concern of the applicant is in relation to an outstanding payment of Rs.1,92,28,000/- from the respondent as seen from paragraphs 3, 4 and 5 of the invocation notice. Incidentally, there appears to be another contention in regard to the respondent being contractually bound to execute and register a Deed of Termination/Cancellation on termination of the said agreement which according to the applicant, the respondent has failed to undertake. In regard to the same, the invocation letter states as under:- “7. Incidentally, there appears to be another contention in regard to the respondent being contractually bound to execute and register a Deed of Termination/Cancellation on termination of the said agreement which according to the applicant, the respondent has failed to undertake. In regard to the same, the invocation letter states as under:- “7. As per the terms of the said Agreement, you were contractually bound to execute and register a Deed of Termination / Cancellation on termination of the said Agreement, which you have failed to do so till date and have thus breached the terms of the said Agreement and after repeated requests to execute a Termination / Cancellation Deed, you have failed to abide by the same.” 3. Admittedly, there is nothing on record that within the prescribed period of limitation after the termination, the respondent was called upon to execute any deed of cancellation and the respondent has failed to execute the same. Such a request appears to have been raised for the first time in the invocation notice. Thus, it prima facie, appears that what has been stated in paragraph 7 is nothing more than what the applicant could have asked on the date of termination and was a cause of action which could have been asserted, as per the prescribed limitation. It is for such reason, it appears that the proceedings are absolutely time barred. 4. Mr. Khandeparkar would intend to take instructions to make further submissions despite being pointed out the above position as also that there are no pleadings whatsoever in the application on any issue of limitation. The emphasis of the petitioner is only to the invocation notice which is issued almost after about 6 years of the date of termination which is dated 08 May, 2021. 5. In my opinion, however, it is in the interest of justice that one more opportunity be given to the applicant to point out as to how the present application would be maintainable. 6. Accordingly, stand over to 02 March, 2022 (H.O.B.).” 10. Today learned counsel for the applicant states that apart from the monetary relief, as being sought by the applicant, the applicant intends to assert that the respondent should enter into a deed of cancellation, as set out in paragraph 7 of the invocation notice, as already noted above. 11. The contention on limitation as urged on behalf of the applicant is quite peculiar. 11. The contention on limitation as urged on behalf of the applicant is quite peculiar. The contention is to the effect that the limitation of three years for the applicant’s claim to be considered not barred by limitation, as also for filing the present application shall recon only after the limitation under Article 58, for the respondent to claim any relief, lapses. The applicant contends that the respondent has not taken recourse to any proceedings within a period of three years from the date of termination of the agreement, which was permissible to him under Article 58 of the Limitation Act. It is hence the applicant’s contention that the limitation for the applicant to assert its rights under the termination would commence, only after such limitation of three years under Article 58, available to the respondent had lapsed, so as to entitle the applicant to seek a relief of the nature as set out in Article 59. The relevant articles are required to be noted which reads thus:- Description of suit Period of limitation Time from which period begins to run 55 For compensation for the breach of any contract, express or implied not herein specially provided for. Three years When the contract is broken or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs or (where the breach is continuing) when it ceases. 58 To obtain any other declaration Three years When the right to sue first accrued. 59 To cancel or set aside an instrument or decree or for the rescission of a contract. Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. Thus, the contention of the applicant is that the limitation for ‘the respondent’ to institute proceedings would end three years from the date of termination, that is three years from 7 February 2015, and only thereafter the limitation under Article 59 for the applicant to make his claim, as also to institute the present application would commence. In other words the applicant asserts that the period of limitation under Article 59 is dependent or linked to the expiry of the limitation under Article 55 or 58 coming to an end as the case may be. 12. In other words the applicant asserts that the period of limitation under Article 59 is dependent or linked to the expiry of the limitation under Article 55 or 58 coming to an end as the case may be. 12. The above submission as urged on behalf of the petitioner is ex-facie untenable to say the least. Learned counsel for the applicant is not in a position to support such contention by any authority, and rightly so, as such a proposition, that the limitation as prescribed under Article 59 would depend upon the expiry of limitation for ‘the respondent’, to institute proceedings within the limitation as prescribed under Article 58 of the Limitation Act would not only amount to an incorrect reading of the plain provisions, but lead to an absurdity. 13. It is quite clear that once the agreement was terminated on 07 February, 2015, the cause of action to both the parties, to assert the rights under the agreement had arisen on such termination. The applicant for a period of more than 6 years had not taken any steps to assert any rights, much less to claim any damages, which is certainly not the claim of the applicant as seen in the invocation notice. The invocation notice demands the balance amount as if the agreement was not terminated. 14. Be that as it may, even considering as to what the applicant had stated in paragraph 7 of the invocation notice that on the termination of the agreement on 07 February, 2015, the respondent was under an obligation to execute a deed of termination/cancellation of the agreement, in my opinion, even to assert such right, the cause of action had certainly accrued to the applicant, as on the date of termination of the agreement, for which the applicant could have instituted proceeding within the limitation as prescribed under Article 58 read with Article 59 of the Limitation Act. Thus the claim of the applicant is ex-facie a dead claim, being barred by limitation. 15. The Court in exercise of its jurisdiction under Section 11 of the Act would certainly be required to consider whether the claim being made by the applicant is manifestly time barred, so that such jurisdiction is not exercised. The law in this regard is well settled. The Supreme Court in Vidya Drolia & Ors. Vs. 15. The Court in exercise of its jurisdiction under Section 11 of the Act would certainly be required to consider whether the claim being made by the applicant is manifestly time barred, so that such jurisdiction is not exercised. The law in this regard is well settled. The Supreme Court in Vidya Drolia & Ors. Vs. Durga Trading Corporation (2021) 2 SCC 1 has clearly held that the Court at the referral stage can refuse to interfere only when it is manifest that the claims are ex facie time barred or dead or there is no subsisting dispute. 16. In Bharat Sanchar Nigam Ltd. & Anr. Vs. M/s. NORTEL Networks India Pvt. Ltd. (2021) 5 SCC 738 , the issue which fell for consideration of the Supreme Court was as to whether the claim being made by the respondent NORTEL Networks India Pvt. Ltd. was time barred, inasmuch as the claims made by the Nortel were rejected by the appellant – BSNL on 4 August 2014. Nortel had invoked the arbitration agreement by its notice dated 29 April 2020, which was after a period of five and half years after rejection of its claim by the BSNL, which was quite similar to the case in hand. It is in such context, the Supreme Court held that, once there was no vestige of doubt that the claim was ex facie time barred, then the Court may decline to make the reference to arbitration, for the reason that such case would be required to be categorised as a deadwood, having no subsisting disputes between the parties. The Supreme Court also observed that by issuing a notice of arbitration would not extend the limitation which had started running from the date of rejection of the Nortel’s claim by BSNL on 4 August 2014. It was also observed that Sections 5 to 20 of the Limitation Act do not exclude the time taken on account of settlement/discussion. The Supreme Court also observed that by issuing a notice of arbitration would not extend the limitation which had started running from the date of rejection of the Nortel’s claim by BSNL on 4 August 2014. It was also observed that Sections 5 to 20 of the Limitation Act do not exclude the time taken on account of settlement/discussion. The Court referred to Section 9 of the Limitation Act, which provides that “where once the time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.” It was observed that there must be a clear notice invoking arbitration setting out a particular dispute (including claims/amounts) which must be received by the other party within a period of three years, (in that case from the rejection of the final bill) failing which the time bar would prevail. It was thus held that as the notice invoking arbitration was issued five and half years after rejection of the claim (on 4 August 2014), the notice invoking arbitration was ex facie time barred and the disputes between the parties could not be referred to arbitration in the facts of the case. The law as laid down in the said decision is clearly applicable in the facts of the present case. The relevant observations of the Supreme Court are required to be noted which reads thus:- “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 5 1/2 years, since Nortel did not take any action whatsoever after the rejection of its claim by BSNL on 04.08.2014. The notice of arbitration was invoked on 29.04.2020. 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 5 1/2 years, since Nortel did not take any action whatsoever after the rejection of its claim by BSNL on 04.08.2014. The notice of arbitration was invoked on 29.04.2020. 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 04.08.2014, 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. .. .. .. …. 51. The period of limitation for issuing notice of arbitration would not get extended by mere exchange of letters, or mere settlement discussions, where a final bill is rejected by making deductions or otherwise. Sections 5 to 20 of the Limitation Act do not exclude the time taken on account of settlement discussions. Section 9 of the Limitation Act makes it clear that : “where once the time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.” There must be a clear notice invoking arbitration setting out the “particular dispute”21 (including claims / amounts) which must be received by the other party within a period of 3 years from the rejection of a final bill, failing which, the time bar would prevail. 52. In the present case, the notice invoking arbitration was issued 5 1/2 years after rejection of the claims on 04.08.2014. 52. In the present case, the notice invoking arbitration was issued 5 1/2 years after rejection of the claims on 04.08.2014. Consequently, the notice invoking arbitration is ex facie time barred, and the disputes between the parties cannot be referred to arbitration in the facts of this case.” (emphasis supplied) 17. Also in a recent decision of the Supreme Court in Secunderabad vs. B. Ramachandriah & Ors., AIR 2021 SC 1391 the Supreme Court held that the claim of the appellant therein was ex facie time barred. It was held that the High Court was in clear error in referring the disputes to arbitration exercising jurisdiction under Section 11 of the Act. The Supreme Court in such context has observed as under:- “20. Applying the aforesaid judgments to the facts of this case, so far as the applicability of Article 137 of the Limitation Act to the applications under Section 11 of the Arbitration Act is concerned, it is clear that the demand for arbitration in the present case was made by the letter dated 07.11.2006. This demand was reiterated by a letter dated 13.01.2007, which letter itself informed the Appellant that appointment of an arbitrator would have to be made within 30 days. At the very latest, therefore, on the facts of this case, time began to run on and from 12.02.2007. The Appellant’s laconic letter dated 23.01.2007, which stated that the matter was under consideration, was within the 30-day period. On and from 12.02.2007, when no arbitrator was appointed, the cause of action for appointment of an arbitrator accrued to the Respondent and time began running from that day. Obviously, once time has started running, any final rejection by the Appellant by its letter dated 10.11.2010 would not give any fresh start to a limitation period which has already begun running, following the mandate of Section 9 of the Limitation Act. This being the case, the High Court was clearly in error in stating that since the applications under Section 11 of the Arbitration Act were filed on 06.11.2013, they were within the limitation period of three years starting from 10.11.2020. On this count, the applications under Section 11 of the Arbitration Act, themselves being hopelessly time barred, no arbitrator could have been appointed by the High Court.” 18. On this count, the applications under Section 11 of the Arbitration Act, themselves being hopelessly time barred, no arbitrator could have been appointed by the High Court.” 18. As a result of the above discussion, there is no vestige of doubt, that in the facts of the present case, the claim of the applicant is ex facie time barred and is a deadwood. The application is accordingly rejected. No costs.