Jammu & Kashmir High Court
Reserved On: 12.03.2026 vs Union Of India And Ors on 25 March, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
2026:JKLHC-JMU:836
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Arb P No. 98/2025
CM No. 1410/2026 &
Arb P No. 99/2025
CM No. 1456/2026
Reserved on: 12.03.2026
Pronounced on : 25.03.2026
Uploaded on : 25.03.2026
Whether the operative part or full
judgment is pronounced: Full
M/s K.K. Enterprises
....Petitioners
Through:- Mr. Anil Mahajan, Advocate.
V/s
Union of India and Ors.
.....Respondents
Through:- Mr. Sumant Sudan, Advocate vice
Mr. Vishal Sharma, DSGI.
\
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
01. By this common judgment the afore-titled two
arbitration petitions involving identical parties and common
questions of law and fact are proposed to be decided together.
02. The petitioner-firm has filed the present petitions
under Section 11(6) of the Arbitration and Conciliation Act,
1996 (hereinafter to be referred to as “Act”) seeking
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appointment of an arbitrator for adjudication of disputes that
have arisen between the parties.
03. Pleadings of Arb. P No. 98 of 2025
3.1 As per case of the petitioner-firm, pursuant to
tender floated by respondent No. 1 through respondent No. 3,
its bid was declared as successful and vide letter No.
8818/68/E8 dated 23.03.2007, the contract relating to
“repair of internal electrification in certain buildings in
213 Transit Camp at Jammu” for an amount of
Rs. 4,39,311.86 was allotted in his favour. It is case of the
petitioner that an agreement came to be executed between it
and respondent No. 1 through respondent No. 3. The date of
commencement of work was 29.03.2007 with date of
completion as 28.09.2007.
3.2 According to the petitioner, the site was handed
over to it in part on 29.03.2007 whereafter the work was
completed and the building was handed over to the
respondent-department. It has been submitted that because
the respondent did not hand over all the buildings for
execution of work to the petitioner, as such, it was unable to
execute the work at old quoted rates. Accordingly, the
petitioner asked the respondents to execute fresh agreement
as it was not feasible to execute the balance work at old quoted
rates. It has been submitted that payment in respect of the
work, which was already done by the petitioner, has not been
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settled and the respondents have not performed their
contractual obligations relating to handing over of all buildings
for execution of the work.
3.3 It has been averred that vide letter/order dated
24.09.2012, respondent No. 3 constituted a Board of Officers
to ascertain the quantum of work executed by the petitioner
and the Board submitted its report dated 07.03.2013 with the
recommendation that the staff, who has made the payment, be
called and the payment made to the contractor be got recorded
in the measurement book before finalizing the case. However,
respondent No. 3 vide letter dt. 24.09.2012 cancelled the
contract w.e.f., 30.09.2012.
3.4 It has been submitted that vide communications
dated 15.05.2024 and 01.02.2025, the petitioner requested
respondent No. 2, the designated authority, to appoint the
arbitrator to decide the disputes that have arisen between the
parties. The petitioner has given the details of claims that,
according to it, have arisen against the respondents. It has
been submitted that as many as 14 claims have arisen and an
amount of Rs. 92,88,279.64 along with interest @ 18% per
annum is due and payable to the petitioner.
3.5 It has further been submitted that vide
communication dated 09.08.2024 issued by respondent No. 3,
the petitioner was asked to furnish an undertaking that it has
no objection for change in appointing authority so that the
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appointing authority may take a decision in the matter. This
was responded to by the petitioner vide communication dated
02.09.2024 informing that it does not agree to the same. It is
in these circumstances that the petitioner has filed the present
petition seeking appointment of arbitrator.
3.6 The respondents have filed their objections to the
petition in which it has been submitted that the petition is
hopelessly time barred, as such, liable to be dismissed. It has
been contended that the petitioner has suppressed material
facts and that it has not approached the Court with clean
hands. According to the respondents, the petitioner did not
execute the work as per the agreed time schedule and failed to
complete the entire work despite issuance of several slow
progress notices. This ultimately led to cancellation of the
contract on 24.09.2012.
3.7 It has been submitted that the petitioner issued
notice dated 20.06.2013 requesting for appointment of
arbitrator but its request was not acceded to. According to the
respondents, two more communications came to be addressed
by the petitioner to the appointing authority on 05.04.2016
and 09.06.2020 seeking appointment of arbitrator.
3.8 It has been contended that limitation period for
filing a petition under Section 11(6) of the Act would start
running against the petitioner from thirty days after the
issuance of notice dated 20.06.2013 for invocation of the
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arbitrator clause and the present petition has been filed in
November, 2025, as such, the same is hopelessly time barred.
3.9 It has been submitted that communication dated
09.08.2024 issued by respondent No. 3 is a routine official
letter and does not have any consequence and bearing upon
the limitation period for filing of the petition under Section
11(6) of the Act. It has been further submitted that
respondent No. 3 is not the appointing authority, as such, it is
not competent to appoint the arbitrator.
3.10 When the objection with regard to maintainability of
the petition on the ground of limitation was taken by the
respondents, the petitioner came up with application bearing
CM No. 1410 of 2026 and placed on record a copy of
communication dated 02.11.2023 addressed by it to
Commander Works Engineer, Jammu and also a copy of
communication dated 29.08.2023 addressed by respondent
No. 3 to the petitioner.
04. Pleadings in Arb. P No. 98 of 2025
4.1 As per case of the petitioner-firm pursuant to tender
floated by respondent No. 1 through respondent No. 3, it was
declared as successful bidder in terms of communication No.
8818/59/30/E8 dated 07.12.2006 and the contract relating to
“repair of internal electrification work and replacement of
GLS lamps at Satwari” was allotted in its favour. The cost of
the contract was Rs. 7,95,210.54/-. Pursuant to the allotment
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letter, an agreement came to be executed between the
petitioner and respondent No. 3. The date of commencement
of work was fixed as 11.12.2006 with date of completion as
10.06.2007.
4.2 It has been submitted that the site was handed over
to the petitioner only in part on 11.12.2006 and the entire site
was never handed over to it for execution of the contract. The
petitioner executed the work and informed the respondents
that all the buildings have not been handed over to it, as such,
the petitioner is unable to execute the work at old quoted
rates. Accordingly, the petitioner requested the respondents
for execution of a fresh agreement. It has been submitted that
respondent-department did not have material in store, as
such, there was delay in execution of the work. It has been
further submitted that final bill has not been settled and paid
to the petitioner as yet. It has been alleged that the
respondents have not performed their contractual obligation
relating to handing over of all buildings to the petitioner.
4.3 It has been averred that vide letter dated
24.09.2012, respondent No. 3 constituted a Board of Officers
to ascertain the quantum of work carried out by the petitioner
and the Board, vide its report dated 07.03.2013, recommended
that the staff, who has made the payment be called and the
payment made to the contractor be got recorded in the
measurement book before finalizing the case. However,
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respondent No. 3, vide its letter No. 24.09.2012, cancelled the
contract w.e.f., 30.09.2012.
4.4 It has been submitted that the petitioner vide its
communications dated 15.05.2024 and 01.02.2025, has
invoked the arbitration clause and requested respondent
No. 2, the designated authority, to appoint the arbitrator to
decide the disputes that have arisen between the parties.
According to the petitioner, as many as 15 claims are
outstanding against the respondents which amount to
Rs. 1,08, 90,547.40/- along with interest @ 18% per annum.
4.5 It has further been submitted that vide
communication dated 09.08.2024, respondent No. 3 called
upon the petitioner to furnish an undertaking that it has no
objection to change in appointing authority to which the
petitioner responded vide its communication dated 02.09.2024
informing that it does not agree to change in the designated
authority. Accordingly, the present petition seeking
appointment of arbitrator has been filed by the petitioner.
4.6 The Respondents in their reply to the petition have
raised preliminary objection to the maintainability of the
petition on the ground that the same is hopelessly time barred.
It has been further submitted that the petitioner has
suppressed material facts from this court and has not
approached the Court with clean hands. It has been alleged
that the petitioner could not complete the work within the
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agreed time schedule despite issuance of several slow progress
notices. This ultimately led to cancellation of the contract in
terms of communication dated 24.09.2012.
4.7 It has been submitted that vide notice dated
19.06.2013, the petitioner made a request for appointment of
arbitrator before the designated authority by invoking the
arbitration clause but its request was not acceded to. Another
communication to the same effect was addressed by the
petitioner on 05.04.2016. It has been contended that limitation
period for approaching the Court for appointment of arbitrator
started to run against the petitioner after one month of
issuance of notice dated 19.06.2013, as such, the present
petition is hopelessly time barred.
4.8 In so far as communication dated 09.08.2024
issued by respondent No. 3, it has been contended by the
respondents that the same is a routine official letter and
because the said communication has not been issued by the
designated authority, as such, the same does not have bearing
upon the limitation period for approaching this Court for
appointment of the arbitrator.
4.9 When the respondents raised the objection with
regard to maintainability of the petition on the ground of
limitation, the petitioner came up with application bearing CM
No. 1456 of 2026 and placed on record a copy of the
communication dated 30.10.2023 addressed by it to the
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2026:JKLHC-JMU:836
Commander Works Engineer, Jammu. The other documents,
which have been placed on record, are copy of the
communication dt. 21.09.2023 addressed by respondent No. 3
to the petitioner, copy of communication dated 16.11.2023
addressed by the Commander Works Engineer, Jammu to the
petitioner, copy of Communication dated 02.12.2023
addressed by the Commander Works Engineer, Jammu to the
petitioner and copy of Communication dated 24.11.2023
addressed by the petitioner to the Commander Works
Engineer, Jammu.
05. Discussion and Legal Analysis
5.1 I have heard learned counsel for the parties and
perused record of the case.
5.2 The main objection that has been raised by the
respondents to the maintainability of both the afore-titled
petitions is that the same are hopelessly barred by time
inasmuch as the arbitration clause has been invoked by the
petitioner in the year 2013 whereas, the present petitions have
been filed after a lapse of more than twelve (12) years. The
petitioner, on the other hand, has contended that the matter
relating to settlement of dispute between the parties has
always remained under consideration of the respondents and
the petitioner has invoked the arbitration clause in the year
2024/2025 to which respondent No. 3 has responded in terms
of communication dated 09.08.2024 whereby the petitioner
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was asked to furnish an undertaking expressing its no
objection to the change in the designated authority, which was
not acceded to by the petitioner and conveyed vide
communication dated 02.09.2024.
5.3 Before dealing with the merits of the rival
contentions of the parties, it would be appropriate to analyze
the legal position as regards the limitation period for filing a
petition under Section 11(6) of the Act.
5.4 The issue whether Limitation Act, 1963 is
applicable to an application for appointment of an arbitrator
under Section 11(6) of the Act came up for consideration
before the Supreme Court in the case of Arif Azim Company
Ltd Vs. Aptech Limited, (2024) 5 SCC 313. The Supreme
Court observed that a petition under Section 11(6) of the Act of
1996 would be covered under Article 137 of the Limitation Act,
which prescribes a limitation period of three years from the
date when the right to apply accrues. It was further observed
by the Supreme Court that limitation period for filing an
application seeking appointment of an arbitrator was to
commence only after a valid notice, invoking arbitration, had
been issued by one of the parties to the other party and there
had been either a failure or refusal on the part of the other
party to comply with the requirement of the said notice.
5.5 The ratio laid down in the aforesaid decision was
further explained by the Supreme Court in the case of
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“Aslam Ismail Khan Deshmukh Vs. Asap Fluids Pvt. Ltd.,
(2025) 1 SCC 520″. After noticing the ratio laid down in Arif
Azim‘s case (supra), the Supreme Court observed as under:
39. Therefore, while determining the issue of limitation in the
exercise of powers under Section 11(6) of the Act, 1996, the
referral court must only conduct a limited enquiry for the
purpose of examining whether the Section 11(6) application
has been filed within the limitation period of three years or
not. At this stage, it would not be proper for the referral court
to indulge in an intricate evidentiary enquiry into the
question of whether the claims raised by the petitioner are
time barred. Such a determination must be left to the decision
of the arbitrator. After all, in a scenario where the referral
court is able to discern the frivolity in the litigation on the
basis of bare minimum pleadings, it would be incorrect to
assume or doubt that the arbitral tribunal would not be able
to arrive at the same inference, especially when they are
equipped with the power to undertake an extensive
examination of the pleadings and evidence adduced before
them.
5.6 From the foregoing analysis of the legal position, it
is clear that an application under Section 11(6) of the Act has
to be filed within three years from the date of failure or refusal
on the part of the adverse party to respond to the letter of
invocation of arbitration agreement. Thus, the breaking point,
which gives rise to commencement of cause of action in favour
of a party approaching the court under Section 11(6) of the
Act, is the refusal/neglect on the part of the adverse party or
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2026:JKLHC-JMU:836the designated authority to respond to the letter invoking
arbitration agreement. The cause of action would start running
against the party approaching the court from that date and
once it starts running, it would not stop running against the
party approaching the court thereafter. Section 9 of the
Limitation Act, which is applicable to the arbitration
proceedings, makes it clear that once time has begun to run,
no subsequent disability or inability to institute a suit or make
an application stops it.
5.7 Coming to the facts of the present case, according
to the petitioner, it has invoked the arbitration clause only on
15.05.2024 read with communication dated 01.02.2025 in
both the cases. However, the respondents, in their reply, have
pleaded and placed on record communications dated
19.06.2013/20.06.2013 addressed by the petitioner to the
designated authority, namely, Chief Engineer, Pathankot Zone
praying for reference of disputes to sole arbitration. The
respondents have also placed on record communication dated
05.04.2016 whereby the petitioner has repeated its request for
reference of disputes to the arbitration. Both these
communications have been suppressed by the petitioner while
filing the petitions. It is not the case of the petitioner that
these communications were not addressed by it to the
designated authority, therefore, it can safely be stated that the
petitioner has invoked the arbitration clause in both the cases
Arb P Nos. 98/2025 & 99/2025 Page 12 of 15
2026:JKLHC-JMU:836in June, 2013 itself. The present petitions have been filed in
November, 2025, which is more than twelve and a half years
after invocation of the arbitration clause by the petitioner.
5.8 Learned counsel for the petitioner has laid much
emphasis on the subsequent correspondence, which has been
exchanged by the parties after the invocation of the arbitration
clause by the petitioner in the year 2013. Much emphasis has
been laid on communication dated 09.08.2024 addressed by
respondent No. 3 to the petitioner whereby the petitioner was
asked to file an undertaking that it has no objection to the
change in the designated authority so that arbitrator can be
appointed. The said communication in the opinion of this
Court does not extend the period of limitation, firstly, because
the said communication has not been addressed by the
appointing authority and secondly because the time for
commencement of the limitation period against the petitioner
had started to run immediately upon service of notice of
invocation of arbitration clause upon the designated authority
and the same would not stop in any circumstances
whatsoever. All the subsequent developments that have taken
place after the invocation of arbitration clause would not save
the period of limitation from running against the petitioner.
Mere reiteration and repetition of letters, invoking arbitration
agreement emanating from the petitioner, would not extend
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the period of limitation for approaching this Court in
connection with appointment of arbitrator.
5.9 Merely because the respondents may not have
taken any action or responded to the request of the petitioner
for appointment of arbitrator made in June, 2013, would not
defer the date from which the cause of action would arise in
favour of the petitioner. Once the petitioner had asserted its
claim and the respondents had failed to respond to the claim
relating to appointment of an arbitrator, such failure has to be
treated as denial of request of the petitioner and, therefore, the
cause of action for filing petition under Section 11(6) of the Act
would arise after waiting for a reasonable time which, in the
circumstances, cannot be more than one month of service of
notice of invocation of letter upon the respondents.
5.10 Apart from the above, the petitioner is guilty of
suppression of material facts from this Court and it has
conveniently suppressed the previous invocation letters of
June, 2013 and April, 2016 so as to give an impression to the
Court that it was only in the year 2024/2025 that arbitration
clause was invoked by it. Even when the respondents brought
the invocation letters of June, 2013 and April, 2016 to the
notice of this Court, the petitioner did not amend the petition
so as to explain the circumstances under which the aforesaid
letters and events were suppressed by it from this Court.
Unless it is pleaded as to in what circumstances and on what
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facts period of limitation is sought to be extended from the
date on which the cause of action originally arose, there
cannot be any basis to save the period of limitation from
running against the petitioner. In the present cases, the
petitioner, instead of pleading anything to this effect, has
suppressed the material facts from the Court.
06. Conclusion:
6.1 From the foregoing discussion, it is clear that the
present petitions are hopelessly barred by time and as such,
the same are liable to be dismissed on that ground alone.
6.2 Accordingly, both the petitions are dismissed being
barred by limitation.
(SANJAY DHAR)
JUDGE
JAMMU
25.03.2026
Naresh/Secy.
Whether the judgment is speaking: Yes
Whether the judgment is reportable: Yes
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