ORDER : REKHA BORANA, J. 1. The present application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act of 1996’) has been preferred for appointment of an independent and impartial sole arbitrator. 2. The facts as submitted are as under: (i) The applicant company (hereinafter referred to as ‘the contractor’) was into a transportation business and vide office order dated 29.01.2013, a work order bearing No.HZ12SLK211/5100013067 for “Zinc Smelter Debari Material Handling in Roaster-3 and Bagging of Calcine into bags, Loading into trucks at R&A Plant” was issued in its favour by non-applicant (hereinafter referred to as ‘the Company’) pursuant to its Notice Inviting Tender having finalised in favour of the contractor. (ii) As per the work order, 3,12,000 M.T. work was to be carried out every year and 90% of the said completed work i.e. 2,80,000 M.T. was payable. But, an amount for only 2,65,000 M.T. work was paid to the contractor which became one of the causes of dispute between the parties. (iii) The work order was stipulated for a period of three years i.e. from 01.02.2013 to 31.01.2016 but the same was terminated four months prior to the stipulated date of completion. As the contractor had spent substantial amount in collecting the assets so as to ensure the completion of contract as per the requirements of the Company, because of the termination of the contract prior to its stipulated period, it suffered huge losses and also suffered loss of profit which it could have gained, if it would have been permitted to complete the work. The same too became a cause of dispute between the parties. (iv) The non-payment of amount qua the extra work got completed by the contractor and further, the extension of maintenance period to 30-45 days, instead of 15 days as agreed upon, also became the cause of dispute. (v) Qua the unpaid amounts and losses occurred, a demand notice dated 02.04.2018 was served by the contractor on the Company requesting for the payment of the same. However, the same was denied by the Company and hence, as the agreement entered into between the parties contained an arbitration clause, vide notice dated 01.04.2022, the same was invoked by the contractor. However, the same was denied by the Company and hence, as the agreement entered into between the parties contained an arbitration clause, vide notice dated 01.04.2022, the same was invoked by the contractor. Vide the notice, the Company was called upon to appoint an arbitrator in terms of the arbitration clause for resolution of the disputes as arisen between the parties. (vi) The notice dated 01.04.2022 having not been responded to/acted upon, the present application under Section 11(6) of the Act of 1996 was preferred on 11.08.2023. 3. A reply to the application has been preferred on behalf of the Company raising a preliminary objection to the effect that the present application is barred by limitation and hence, deserves to be dismissed. It has been submitted that admittedly the demand notice was served in the year 2018 whereas the notice invoking arbitration clause was issued on 01.04.2022 i.e. after a period of more than 3 years and hence, was clearly barred by limitation. (ii) Regarding the termination of the contract before the stipulated date, it has been submitted that the same was permissible as per clause 14.3 of the agreement and hence, cannot be said to be a cause of any dispute. 4. Learned counsel for the non-applicant Company while submitting the preliminary objection on the issue of the limitation relied upon the Hon’ble Apex Court judgment in the case of Bharat Sanchar Nigam Limited and Others Vs. Nortel Networks India Private Limited, (2021) 5 SCC 738 , wherein it has been held that the period of limitation for issuing notice of arbitration would not get extended by mere exchange of letters. Sections 5 to 20 of the Limitation Act do not exclude the time taken on account of settlement discussions. The Hon’ble Apex Court further held 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 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. Learned counsel submitted that the rejection of the claim as raised by the contractor, even as averred by the contractor was on 20.08.2018. There must be a clear notice invoking arbitration 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. Learned counsel submitted that the rejection of the claim as raised by the contractor, even as averred by the contractor was on 20.08.2018. Therefore, the notice invoking arbitration clause could at the best have been served within a period of 3 years from 28.08.2018. Admittedly, the same has been issued on 01.04.2022 and hence, is clearly barred by limitation. The claims as raised by the contractor been raised beyond the period of limitation, cannot be referred to the arbitration. Qua the termination of contract prior to stipulated period of completion, learned counsel submitted that the same was firstly, within the terms of the contract and secondly, the same was done taking into consideration the operational needs of the Company and because of lack of experience of the contractor in operation and maintenance of business volume. The said decision of termination enabled the Company to save an estimated amount of Rs.112.68 lacs per year. 5. Responding to the preliminary objection as raised by the counsel for the Company, learned counsel for the contractor, while relying upon the Hon’ble Apex Court’s order passed in Suo Moto Writ Petition (Civil) No. 3 of 2020; (decided on 10.01.2022) submitted that the claims were raised by the contractor very well within the limitation vide demand notice dated 02.04.2018. So far as the notice invoking arbitration clause is concerned, even if it is assumed that the same was beyond the period of 3 years from 02.04.2018, the said period of limitation stood excluded in terms of order dated 10.01.2022 passed by the Hon’ble Apex Court in Suo Moto Petition (supra). Learned counsel submitted that because of covid pandemic, the period from 15.03.2020 to 28.02.2022 was to be excluded while computing the period of limitation and as per the mandate of the Hon’ble Apex Court, if the said period is excluded, the notice dated 01.04.2022 and further, the present application filed on 11.08.2023 are clearly within limitation. So far as the claims are concerned, the same were raised in year 2018 itself and hence, the same cannot be termed to be stale or dead claims and hence, deserves to be referred to arbitration. So far as the claims are concerned, the same were raised in year 2018 itself and hence, the same cannot be termed to be stale or dead claims and hence, deserves to be referred to arbitration. In support of his submissions, learned counsel relied upon the Delhi High Court judgment in Huawei Telecommunications (India) Company Private Limited and Others Vs. Wipro Limited, Arbitration Application No.365/2019 (decided on 24.01.2022). 6. Heard learned counsels and perused the material available on record. 7. The primary issue that emerges for consideration before this Court is whether the application as preferred by the applicant for appointment of arbitrator is within limitation. 8. For proper adjudication of the said issue and to reach to a conclusion on the same, reliance on the latest Hon’ble Apex Court judgment in the case of Arif Azim Co. Ltd. vs. Aptech Ltd., 2024 INSC 155 would be apt. In terms of the ratio as laid down in the said judgment, a two-pronged test needs to be undertaken to determine firstly, whether the arbitration application under Section 11(6) of the Act of 1996 is barred by limitation and secondly, whether the claims sought to be arbitrated are ex-facie dead or time barred on the date of commencement of the arbitration proceedings. 9. Regarding the first aspect as to whether the present arbitration application is within the period of limitation, it is undisputed that Article 137 of the Limitation Act governs application under Section 11 of the Act of 1996 and Article 137 of the Limitation Act provides as under: Description of suit Period of limitation Time from which period begins to run 137. Any other application for which no period of limitation is provided elsewhere in this Division Three years When the right to apply accrues. 10. From a plain reading of the aforesaid provision, it can be inferred that for an application under Section 11 of the Act of 1996, the limitation period would commence from the time when the right to apply accrues. While interpreting ‘right to apply’ under Article 137 of the Limitation Act, the Hon’ble Apex Court in the Arif Azim’s case (Supra) observed as under: “56. The other way of ascertaining the relevant point in time when the limitation period for making a Section 11(6) application would begin is by making use of the Hohfeld's analysis of jural relations. While interpreting ‘right to apply’ under Article 137 of the Limitation Act, the Hon’ble Apex Court in the Arif Azim’s case (Supra) observed as under: “56. The other way of ascertaining the relevant point in time when the limitation period for making a Section 11(6) application would begin is by making use of the Hohfeld's analysis of jural relations. It is a settled position of law that the limitation period Under Article 137 of the Limitation Act, 1963 will commence only after the right to apply has accrued in favour of the applicant. As per Hohfeld's scheme of jural relations, conferring of a right on one entity must entail the vesting of a corresponding duty in another. When an application Under Section 11(6) of the Act, 1996 is made before this Court without exhausting the mechanism prescribed under the said Sub-section, including that of invoking arbitration by issuance of a formal notice to the other party, this Court is not duty bound to appoint an arbitrator and can reject the application for being premature and non-compliant with the statutory mandate. However, once the procedure laid down Under Section 11(6) of the Act, 1996 is exhausted by the applicant and the application passes all other tests of limited judicial scrutiny as have been evolved by this Court over the years, this Court becomes duty-bound to appoint an arbitrator and refer the matter to an arbitral tribunal. Thus, the "right to apply" of the Applicant can be said to have as its jural correlative the "duty to appoint" of this Court only after all the steps required to be completed before instituting a Section 11(6) application have been duly completed. Thus, the limitation period for filing a petition Under Section 11(6) of the Act, 1996 can only commence once a valid notice invoking arbitration has been sent by the applicant to the other party, and there has been a failure or refusal on part of that other party in complying with the requirements mentioned in such notice.” 11. The Hon’ble Supreme Court, while dilating on the issue of limitation qua arbitration application in the case of Bharat Sanchar Nigam Ltd (supra) held as under: “11. The Hon’ble Supreme Court, while dilating on the issue of limitation qua arbitration application in the case of Bharat Sanchar Nigam Ltd (supra) held as under: “11. It is now fairly well-settled that the limitation for filing an application Under Section 11 would arise upon the failure to make the appointment of the arbitrator within a period of 30 days' from issuance of the notice invoking arbitration. In other words, an application Under Section 11 can be filed only after a notice of arbitration in respect of the particular claim(s)/dispute(s) to be referred to arbitration [as contemplated by Section 21 of the Act] is made, and there is failure to make the appointment. 12. The period of limitation for filing a petition seeking appointment of an arbitrator/s cannot be confused or conflated with the period of limitation applicable to the substantive claims made in the underlying commercial contract. The period of limitation for such claims is prescribed under various Articles of the Limitation Act, 1963. The limitation for deciding the underlying substantive disputes is necessarily distinct from that of filing an application for appointment of an arbitrator. This position was recognized even Under Section 20 of the Arbitration Act 1940. Reference may be made to the judgment of this Court in C. Budhraja v. Chairman, Orissa Mining Corporation Ltd., (2008) 2 SCC 444 wherein it was held that Section 37(3) of the 1940 Act provides that for the purpose of the Limitation Act, an arbitration is deemed to have commenced when one party to the arbitration agreement serves on the other party, a notice requiring the appointment of an arbitrator. Paragraph 26 of this judgment reads as follows: 26. Section 37(3) of the Act provides that for the purpose of the Limitation Act, an arbitration is deemed to have been commenced when one party to the arbitration agreement serves on the other party thereto, a notice requiring the appointment of an arbitrator. Such a notice having been served on 4-6-1980, it has to be seen whether the claims were in time as on that date. If the claims were barred on 4-6-1980, it follows that the claims had to be rejected by the arbitrator on the ground that the claims were barred by limitation. The said period has nothing to do with the period of limitation for filing a petition Under Section 8(2) of the Act. If the claims were barred on 4-6-1980, it follows that the claims had to be rejected by the arbitrator on the ground that the claims were barred by limitation. The said period has nothing to do with the period of limitation for filing a petition Under Section 8(2) of the Act. Insofar as a petition Under Section 8(2) is concerned, the cause of action would arise when the other party fails to comply with the notice invoking arbitration. Therefore, the period of limitation for filing a petition Under Section 8(2) seeking appointment of an arbitrator cannot be confused with the period of limitation for making a claim. The decisions of this Court in Major (Retd.) Inder Singh Rekhi v. DDA [ (1988) 2 SCC 338 ], Panchu Gopal Bose v. Board of Trustees for Port of Calcutta [ (1993) 4 SCC 338 ] and Utkal Commercial Corporation. v. Central Coal Fields Ltd. [ (1999) 2 SCC 571 ] also make this position clear. ……………………………… 18. Applying the aforesaid law to the facts of the present case, we find that the application Under Section 11 was filed within the limitation period prescribed Under Article 137 of the Limitation Act. Nortel issued the notice of arbitration vide letter dated 29.04.2020, which was rejected by BSNL vide its reply dated 09.06.2020. The application Under Section 11 was filed before the High Court on 24.07.2020 i.e. within the period of 3 years of rejection of the request for appointment of the arbitrator.” 12. Applying the above ratio to the present case, the demand notice was issued by the contractor on 02.04.2018. As averred in the notice dated 01.04.2022, the claims as raised vide notice dated 02.04.2018 were denied by the Company on 28.08.2018. Even if the date of denial as alleged by the contractor is ignored and it is assumed that the cause for arbitration arose on 02.04.2018 i.e. the date when the demand notice was issued, the limitation of 3 years from the said date would expire on 01.04.2021. In terms of the order of the Hon’ble Apex Court in Suo Moto Petition (Supra), the period from 15.03.2020 to 28.02.2022 (715 days) would stand excluded for the purposes of computation of limitation and the balance period as available on 15.03.2020 would become available from 01.03.2022. In terms of the order of the Hon’ble Apex Court in Suo Moto Petition (Supra), the period from 15.03.2020 to 28.02.2022 (715 days) would stand excluded for the purposes of computation of limitation and the balance period as available on 15.03.2020 would become available from 01.03.2022. In the present case, the balance period of limitation as available on 15.03.2020 till 01.04.2021 was one year and one month which would now be available from 01.03.2022. Meaning thereby, the last date of limitation, that is, 01.04.2021, would stand extended first by 715 days and then, further for a period of thirteen months. Applying the said extended period to 01.04.2021, the present application filed on 11.08.2023 is hence, clearly within limitation. 13. Regarding the second aspect as to whether the claims sought to be referred to arbitration are ex facie dead or time barred on the date of commencement of the arbitration proceedings, the first consideration would be the date of commencement of the arbitral proceedings. As per Section 20 of the Act of 1996, the arbitration proceedings commenced from the date of receipt of notice invoking arbitration clause. In the present matter, the notice invoking arbitration clause is of 01.04.2022. As the date of receipt of the said notice is not decipherable from the record, this Court would proceed with the date of notice i.e. 01.04.2022 itself, to be the date of commencement of the arbitral proceedings in terms of Section 20 of the Act of 1996. The Hon’ble Apex Court in the case of Bharat Sanchar Nigam Limited (Supra) while dealing with a matter wherein the claims were barred by limitation on the day when notice for arbitration was invoked, observed as under: “48. Applying the law to the facts of the present case, it is clear that this is a case where the claims are ex facie time-barred by over 5½ years, since Nortel did not take any action whatsoever after the rejection of its claim by BSNL on 4-8-2014. The notice of arbitration was invoked on 29-4-2020. There is not even an averment either in the notice of arbitration, or the petition filed Under Section 11, or before this Court, of any intervening facts which may have occurred, which would extend the period of limitation falling within Sections 5 to 20 of the Limitation Act. The notice of arbitration was invoked on 29-4-2020. There is not even an averment either in the notice of arbitration, or the petition filed Under Section 11, or before this Court, of any intervening facts which may have occurred, which would extend the period of limitation falling within Sections 5 to 20 of the Limitation Act. Unless, there is a pleaded case specifically adverting to the applicable section, and how it extends the limitation from the date on which the cause of action originally arose, there can be no basis to save the time of limitation. 49. The present case is a case of deadwood/no subsisting dispute since the cause of action arose on 4-8-2014, when the claims made by Nortel were rejected by BSNL. The Respondent has not stated any event which would extend the period of limitation, which commenced as per Article 55 of the Schedule of the Limitation Act (which provides the limitation for cases pertaining to breach of contract) immediately after the rejection of the final bill by making deductions. …………………………………………………… 52. In the present case, the notice invoking arbitration was issued 5½ years after rejection of the claims on 4-8-2014. 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.” 14. Applying the above ratio to the present case, the issue would be whether the claims as raised by the petitioner were dead or time barred on 01.04.2022. Admittedly, the demand notice was issued by the contractor on 02.04.2018, the same has been averred by the petitioner to have been denied by the Company on 28.08.2018. Applying the period of exclusion of 715 days (15.03.2020 – 28.02.2022), as directed by the Hon’ble Apex Court, the claims were definitely alive on 01.04.2022 i.e. the date on which the notice invoking arbitration clause was issued. Hence, it cannot be said that the claims sought to be raised by the applicant were ex facie time-barred or dead claims on the date of the commencement of arbitration. 15. In an overall conclusion, this Court is of the opinion that the present application filed on 11.08.2023 is within limitation in terms of both the aspects pertaining to the issue of limitation qua an application under Section 11(6) of the Act of 1996. 16. 15. In an overall conclusion, this Court is of the opinion that the present application filed on 11.08.2023 is within limitation in terms of both the aspects pertaining to the issue of limitation qua an application under Section 11(6) of the Act of 1996. 16. Clause 52 of the arbitration as entered into between the parties reads as under : “52. Arbitration : 52.1. In the event of any dispute or difference arising out of relating to, under or in respect of this contract between the parties the same shall be referred at the written request of either party to the arbitral tribunal constituted for the adjudication of the dispute or difference as provided hereunder : (a) Where the claim is up to Rs.50 Lacs: to a sole arbitrator to be nominated by the CEO/COO of Hindustan Zinc Limited, Udaipur (Rajasthan). (b) Where the claim exceeds Rs.50 Lacs: to a Board of three Arbitrators comprising one nominee each of the Owner and the Contractor and the Third to be appointed by the two arbitrators by the mutual agreement in writing before entering upon the reference. The party while making request for referring the dispute for arbitration shall appoint his Arbitrator nominee and request the other party to appoint his Arbitrator nominee. 52.2 The Arbitration shall be subject to and in accordance with the provisions of the Indian Arbitration and Conciliation Act 1996 (No.26 of 1996) and the Rules if any made there-under any statutory modification or re-enactment thereof. 52.3 The venue of the arbitration proceedings shall be Udaipur, Rajasthan, India. The Arbitrators shall give a speaking, reasoned and claim wise award. Any arbitration award made in such arbitration proceedings shall be final and binding on the parties and shall be enforceable in any court of competent jurisdiction. 52.4 During the course of arbitration proceedings, the parties hereto shall continue to execute their respective obligations. 52.5 The requirement of appointing arbitrator to settle the dispute is not binding on the insurance company and insurance company is free to take legal proceedings for realization of its claim against the carrier, if any. 52.6 Both parties agree that any ex-employee of the HZL or the seller shall not be nominated as arbitrator. 52.7 The above arbitration provisions will stand terminated/determined as soon as letter of discharge as referred in Clause No.21 (i.e. Final Bill/Discharge Letter is submitted by the contractor)”. 17. 52.6 Both parties agree that any ex-employee of the HZL or the seller shall not be nominated as arbitrator. 52.7 The above arbitration provisions will stand terminated/determined as soon as letter of discharge as referred in Clause No.21 (i.e. Final Bill/Discharge Letter is submitted by the contractor)”. 17. It is clear on record that the process provided vide Clause 52 of the agreement has failed and hence, a sole arbitrator deserves to be appointed by this Court for resolving the dispute as has arisen between the parties and as raised vide notice dated 02.04.2018 and 01.04.2022. Learned counsel for the applicant suggested that Shri Shiv Singh Chouhan, a retired District Judge of Rajasthan be appointed as an arbitrator to which counsel for the respondent also did not seriously object to. 18. In view of the above, the application under Section 11(6) of the Act of 1996 is allowed. Shri Shiv Singh Chouhan, Former District Judge, is appointed as the sole arbitrator to adjudicate upon the disputes as raised vide notice dated 01.04.2022. 19. The arbitration fee and the costs shall be in accordance with the Fourth Schedule of the Act of 1996. The above appointment shall be subject to the necessary disclosure being made under Section 12 of the Act of 1996. 20. The intimation of the appointment as aforesaid be given by the Registry to Shri Shiv Singh Chouhan, Former District Judge, Chitrakoot Nagar, Udaipur (Mobile No.9414796970). The parties would also be at liberty to intimate Shri Shiv Singh Chouhan and to call upon appropriate date for necessary directions.