12.03.2026 vs Union Of India And Ors on 25 March, 2026

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    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

    SPONSORED

    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

    Arb P Nos. 98/2025 & 99/2025 Page 1 of 15
    2026:JKLHC-JMU:836

    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

    Arb P Nos. 98/2025 & 99/2025 Page 2 of 15
    2026:JKLHC-JMU:836

    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

    Arb P Nos. 98/2025 & 99/2025 Page 3 of 15
    2026:JKLHC-JMU:836

    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

    Arb P Nos. 98/2025 & 99/2025 Page 4 of 15
    2026:JKLHC-JMU:836

    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

    Arb P Nos. 98/2025 & 99/2025 Page 5 of 15
    2026:JKLHC-JMU:836

    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,

    Arb P Nos. 98/2025 & 99/2025 Page 6 of 15
    2026:JKLHC-JMU:836

    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

    Arb P Nos. 98/2025 & 99/2025 Page 7 of 15
    2026:JKLHC-JMU:836

    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

    Arb P Nos. 98/2025 & 99/2025 Page 8 of 15
    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

    Arb P Nos. 98/2025 & 99/2025 Page 9 of 15
    2026:JKLHC-JMU:836

    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

    Arb P Nos. 98/2025 & 99/2025 Page 10 of 15
    2026:JKLHC-JMU:836

    “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

    Arb P Nos. 98/2025 & 99/2025 Page 11 of 15
    2026:JKLHC-JMU:836

    the 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:836

    in 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

    Arb P Nos. 98/2025 & 99/2025 Page 13 of 15
    2026:JKLHC-JMU:836

    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

    Arb P Nos. 98/2025 & 99/2025 Page 14 of 15
    2026:JKLHC-JMU:836

    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

    Arb P Nos. 98/2025 & 99/2025 Page 15 of 15



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