Madras High Court
M/S.Five Star Business Finance Limited vs R.O. Palanisamy on 12 March, 2025
Author: Abdul Quddhose
Bench: Abdul Quddhose
2025:MHC:693
Arb.O.P.(Com. Div.) No.448 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.03.2025
CORAM
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
Arb.O.P.(Com. Div.) No.448 of 2024
M/s.FIVE STAR BUSINESS FINANCE LIMITED
(Formerly known as M/s.Five Star Business Credits Ltd.)
Rep. by its Authorized Signatory,
Mrs.J. Saraswathi W/o.Karthick R,
New No.27, Old No.4, Taylor's Road,
Kilpauk, Chennai - 600 010. ... Petitioner
Vs.
1. R.O. Palanisamy
2. P. Kanammal
3. P. Tharanidharan ... Respondents
PRAYER: Petition filed under Section 11(6) of the Arbitration and
Conciliation Act, 1996 to appoint a sole arbitrator to adjudicate the dispute
between the petitioner and the respondents and to direct the respondents to
pay the cost.
For Petitioner : Mr. R. Ganesan
Mr. M. Ajmal Azzath
For Respondents : Mr. M.S. Sampath
for Ms. Meera Gnanasekar
1/26
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ORDER
This petition has been filed under Section 11 of the Arbitration and
Conciliation Act, seeking for appointment of an arbitrator by this Court.
2. Earlier, the very same petitioner had initiated arbitration against the
respondents as per the arbitration clause contained in the loan contract,
which is the subject matter of the dispute between the parties. The sole
arbitrator appointed by the petitioner had also passed an arbitral award in
favour of the petitioner against the respondents. Aggrieved by the same, the
respondents challenged the arbitral award before this Court by filing an
application under Section 34 of the Arbitration and Conciliation Act in
O.P.Nos.241 and 252 of 2017. By order dated 05.01.2021, the learned
Single Judge set aside the arbitral award dated 21.10.2016 passed in favour
of the petitioner against the respondents.
3. According to the petitioner, the aforesaid arbitral award was not
passed on merits. According to them, the learned Single Judge, while setting
aside the arbitral award on 05.01.2021, had set aside the arbitral award only
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on the ground that exorbitant interest was levied by the petitioner. Instead of
preferring an appeal against the order dated 05.01.2021 passed in
O.P.Nos.241 and 252 of 2017, the petitioner has once again initiated fresh
arbitration. Prior to the filing of this petition under Section 11 of the
Arbitration and Conciliation Act, seeking for appointment of an arbitrator
by this Court, the petitioner had issued once again notices to the
respondents on 24.06.2022 and 27.12.2022, calling upon the respondents to
consent for arbitration.
4. The petitioner also claims that subsequent to the order dated
05.01.2021 passed in O.P.Nos.241 and 252 of 2017, the petitioner had
approached an Arbitral institution for appointment of an arbitrator and the
arbitrator was also appointed by the said institution. According to the
petitioner, despite receiving notice from the arbitrator, appointed by the said
institution, the respondents failed to participate in the said arbitration. Only
under those circumstances, the petitioner claims that they have been
constrained to file this petition under Section 11 of the Arbitration and
Conciliation Act, seeking for appointment of an arbitrator by this Court.
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5. A counter has been filed by the respondents to this petition filed
under Section 11 of the Arbitration and Conciliation Act, stating as follows:
a) The petition filed under Section 11 of the Arbitration and
Conciliation Act is hopelessly barred by law of limitation;
b) In the order dated 05.01.2021, passed by the learned Single Judge
of this Court in O.P.Nos.241 and 252 of 2017, through which the earlier
arbitral award passed in favour of the petitioner against the respondents was
set aside, leave was not granted for the petitioner to initiate fresh arbitration;
c) Order dated 05.01.2021 passed by the learned Single Judge of this
Court in O.P.Nos.241 and 252 of 2017, setting aside the earlier arbitral
award passed in favour of the petitioner against the respondents, is an order
passed on merits and therefore, this petition amounts to res judicata.
6. Heard Mr. R. Ganesan and Mr. M. Ajmal Azzath, learned counsels
for the petitioner and Mr. M.S. Sampath representing Ms. Meera
Gnanasekar, learned counsel for the respondents.
7. Learned counsel for the petitioner drew the attention of this Court
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to the order of the learned Single Judge dated 05.01.2021 passed in
O.P.Nos.241 and 252 of 2017 through which the earlier arbitral award was
set aside and would submit that as seen from paragraph No.25 of the said
order, there is a reference to a decision rendered by the Honourable
Supreme Court in the case of McDermott International Inc. Vs. Burn
Standard Co. Ltd., reported in (2006) 11 SCC 181. According to the
petitioner, as per the said judgment, if an arbitral award is set aside in case
of fraud or bias by the arbitrators, violations of natural justice, etc., the
parties are at liberty to seek for fresh arbitration. According to him, since
the learned Single Judge while deciding O.P.Nos.241 and 252 of 2017 on
05.01.2021, has followed the decision of McDermott International Inc. Vs.
Burn Standard Co. Ltd., (2006) 11 SCC 181 referred to supra, an implied
leave has been granted to the petitioner to initiate fresh arbitration.
8. Learned counsel for the petitioner would submit that as per Article
141 of the Constitution of India, the law declared by the Honourable
Supreme Court is the law of the land and therefore, it is clear that an implied
leave has been granted to the petitioner to initiate fresh arbitration.
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9. Learned counsel for the petitioner also drew the attention of this
Court to the following authorities:
i. Shree Ram Mills Ltd., Vs. Utility Premises (P) Ltd., reported in
MANU/SC/1999/2007;
ii. Aakash Educational Services Ltd., Vs. Lotus Education and
Others reported in 2024 SCC Online Del 1223;
iii. GOQII Technologies Private Ltd., Vs. Sokrati Technologies Pvt.
Ltd. reported in 2025 (2) SCC 192.
10. The aforesaid decisions have been relied upon to support the
following propositions:
a) Limitation is a mixed question of fact and law. Therefore, once
there exists an arbitration clause in the subject matter of the contract, this
Court while deciding an application under Section 11 of the Arbitration and
Conciliation Act, has to necessarily appoint an arbitrator as this Court will
have to only look into the prima facie existence of arbitration clause;
b) The primary intention behind amending Section 11 of the
Arbitration and Conciliation Act is to reduce the extent of judicial
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intervention with the exception of situations in which there appears to be no
legitimate arbitration agreement. While deciding an application under
Section 11 of the Arbitration and Conciliation Act, the referral Court cannot
delve into the issue of limitation as the same can be agitated before the
arbitral tribunal.
c) The scope of Section 11 (6) is limited. There is no necessity for the
referral Court to adjudicate on merits by undertaking a detailed examination
of the factual matrix.
11. Relying upon the aforesaid decisions, the learned counsel for the
petitioner would submit that both the limitation issue as well as the issue
raised by the respondents that no leave was granted by the learned Single
Judge while passing the order dated 05.01.2021 can be reserved for the
arbitrator to decide.
12. On the other hand, the learned counsel for the respondents would
submit that the petition filed before this Court under Section 11 of the
Arbitration and Conciliation Act is hopelessly barred by the law of
limitation. He would submit that the order setting aside the earlier arbitral
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award passed in favour of the petitioner under Section 34 of the Arbitration
and Conciliation Act was passed on 05.01.2021. However, this petition was
filed under Section 11 of the Arbitration and Conciliation Act only on
26.04.2024 beyond the period of three years from the date of the said order
passed by the learned Single Judge, setting aside the arbitral award under
Section 34 of the Arbitration and Conciliation Act.
13. Learned counsel for the respondents would also submit that the
dispute as raised by the petitioner arose in the year 2014 itself, when the
petitioner had invoked arbitration by issuing notice to the respondents to
comply with the requirement of Section 21 of the Arbitration and
Conciliation Act. According to him, eventhough the petitioner had sent one
more notice to the respondents, subsequent to the arbitral award being set
aside by the learned Single Judge of this Court, the said notice has no
bearing for the facts of the instant case since the cause of action for filing
the arbitral claim against the respondents arose in the year 2014 itself.
According to him, issuance of fresh notice invoking arbitration in the year
2022 by the petitioner will not save limitation.
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14. Learned counsel for the respondents also submitted that in the
order dated 05.01.2021 passed by the learned Single Judge by this Court,
setting aside the arbitral award, no leave was granted for the petitioner to
initiate fresh arbitration. He would submit that the reference to the
McDermott International Inc. Vs. Burn Standard Co. Ltd., (2006) 11 SCC
181 decision rendered by the Honourable Supreme Court in the order dated
05.01.2021 passed by the learned Single Judge of this Court will not imply
that leave was granted to the petitioner to initiate fresh arbitration. He
would also submit that the order dated 05.01.2021 passed by the learned
Single Judge of this Court setting aside the earlier arbitral award passed in
favour of the petitioner against the respondents is an order passed on merits.
However, the same is disputed by the learned counsel for the petitioner.
According to the learned counsel for the respondents since the order was
passed on merits, the present petition filed under Section 11 of the
Arbitration and Conciliation Act, seeking for appointment of an arbitrator
by this Court will amount to res judicata.
15. Learned counsel for the respondents drew the attention of this
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Court to the following authorities:
a) A decision of the Honourable Supreme Court in the case of
M/s.ARIF Azim Co. Ltd. Vs. M/s.APTECH Ltd. reported in AIR 2024 SC
1347. Relying upon the aforesaid decision, the learned counsel for the
respondents would submit that the referral Court under Section 11(6) of the
Arbitration and Conciliation Act 1996 is empowered to dismiss the petition
under Section 11 of the Arbitration and Conciliation Act if the claim of the
petitioner is barred by limitation. In particular, he referred to paragraph
No.89 of the aforesaid decision of the Honourable Supreme Court, wherein
the Honourable Supreme Court has made it clear that the referral Courts
should satisfy themselves on two aspects by employing a two-pronged test
viz., (a) whether the petition under Section 11(6) of the Arbitration and
Conciliation Act is barred by limitation; and (b) whether the claims sought
to be arbitrated are ex-facie dead claims and are thus barred by limitation on
the date of commencement of arbitration proceedings. According to the
learned counsel for the respondents, the Honourable Supreme Court has
held that if either of these issues are answered against the party seeking
referral of disputes to arbitration, the Court may refuse to appoint an arbitral
Tribunal.
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16. Learned counsel for the respondents also relied upon a decision
rendered by the Delhi High Court in the case of Tarun Kumar Jain Vs.
Municipal Corporation of Delhi (MCD) reported in 2011 (2) Arbitration
LR 397. According to the learned counsel for the respondents, as seen from
the said decision it is clear that the petitioner ought to have approached this
Court within a period of three years from the date of the order passed by the
learned Single Judge of this Court, setting aside the earlier arbitral award
passed against the petitioner. Having filed this petition only on 26.04.2024,
beyond the period of three years, this petition has to be dismissed on the
ground of limitation.
17. Discussion:
The following are the undisputed facts:
a) The cause of action for initiating arbitration against the
respondents by the petitioner arose in the year 2014 itself;
b) The petitioner had earlier invoked arbitration in accordance with
the arbitration clause contained in the contract, which is the subject matter
of the dispute between the parties by appointing a sole arbitrator in the year
2014 itself through its arbitration invocation notice which is dated
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03.05.2014;
c) The sole arbitrator appointed by the petitioner also passed an
arbitral award against the respondents on 21.10.2016, directing the
respondents to pay certain sums of money to the petitioner which was found
to be due under the loan contract, which is the subject matter of the dispute
between the parties;
d) The respondents challenged the arbitral award dated 21.10.2016 by
filing an application under Section 34 of the Arbitration and Conciliation
Act before this Court through O.P.Nos.241 and 252 of 2017;
e) By order dated 05.01.2021, a learned Single Judge of this Court
allowed O.P.Nos.241 and 252 of 2017 filed by the respondents by setting
aside the arbitral award dated 21.10.2016;
f) No appeal was filed by the petitioner as against the order dated
05.01.2021 passed in O.P.Nos.241 and 252 of 2017;
g) Earlier, the petitioner had invoked arbitration when the cause of
action for the dispute arose by issuing notice to the respondents on
03.05.2014 to comply with the requirements of Section 21 of the Arbitration
and Conciliation Act, 1996;
h) A second arbitration invocation notice, subsequent to the passing
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of the order dated 05.01.2021 passed by the learned Single Judge through
which the earlier arbitral award was set aside, was sent by the petitioner to
the respondents on 24.06.2022;
i) This petition was filed under Section 11 of the Arbitration and
Conciliation Act seeking for appointment of an arbitrator only on
26.04.2024, which is beyond the period of 3 years from the date of the order
passed by the learned Single Judge of this Court, i.e., on 05.01.2021 setting
aside the earlier arbitral award passed in favour of the petitioner against the
respondents.
18. In this petition, the petitioner has stated through their averments
that leave was obtained from the learned Single Judge of this Court through
the order dated 05.01.2021 passed in O.P.Nos.241 and 252 of 2017 for
initiating fresh arbitration. However, as seen from the order dated
05.01.2021 passed by the learned Single Judge, no leave was granted by the
learned Single Judge to initiate fresh arbitration.
19. As seen from the aforesaid facts, it is clear that this petition has
been filed beyond the period of 3 years from the date of the order passed by
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the learned Single Judge of this Court, setting aside the earlier arbitral
award passed in favour of the petitioner. The cause of action for initiating
arbitration by the petitioner against the respondents arose in the year 2014
itself. The petitioner had also invoked arbitration earlier by issuing notice to
the respondents in the year 2014 itself (03.05.2014), as per the provisions of
Section 21 of the Arbitration and Conciliation Act. Pursuant to the same, the
petitioner had also appointed an arbitrator unilaterally and the said arbitrator
had also passed an arbitral award in favour of the petitioner against the
respondents.
20. It is also seen from the order dated 05.01.2021 passed by the
learned Single Judge of this Court, setting aside the earlier arbitral award,
that no specific leave was granted for the petitioner to initiate fresh
arbitration against the respondents. However, the learned counsel for the
petitioner during the course of his submissions would submit that since the
learned Single Judge has followed the decision rendered by the Honourable
Supreme Court in McDermott International Inc. Vs. Burn Standard Co.
Ltd., (2006) 11 SCC 181 case, it is implied that leave was granted to the
petitioner to initiate fresh arbitration.
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21. In McDermott International Inc. Vs. Burn Standard Co. Ltd.,
(2006) 11 SCC 181 case which was relied upon by the learned Single Judge,
while setting aside the arbitral award, it has also been made clear that only
in few circumstances like, in case of fraud or bias, violation of natural
justice, etc., the Court can quash the award, leaving the parties free to begin
the arbitration again if it is desired. In the case on hand, the respondents
categorically contends that the order dated 05.01.2021 passed in
O.P.Nos.241 and 252 of 2017 is an order passed on merits. However, the
same is disputed by the learned counsel for the petitioner. Eventhough the
learned Single Judge of this Court while passing the order dated 05.01.2021
in O.P.Nos.241 and 252 of 2017 has followed McDermott International
Inc. Vs. Burn Standard Co. Ltd., (2006) 11 SCC 181 rendered by
Honourable Supreme Court, no leave has been granted for the petitioner to
initiate fresh arbitration.
22. As seen from the order dated 05.01.2021 passed by the learned
Single Judge of this Court in O.P.Nos.241 and 252 of 2017, it is not a
cryptic order. A detailed reasoning has been given by the learned Single
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Judge for setting aside the arbitral award passed in favour of the petitioner
against the respondents. In the operative portion of the order dated
05.01.2021 passed in O.P.Nos.241 and 252 of 2017, the following
observations have been made by the learned Single Judge, which will reveal
that the order has been passed on merits and no leave was granted to the
petitioner to initiate fresh arbitration:
"owing to the trajectory of the matter, this Court deems it
appropriate to extract Paragraph 52 of McDermott case [McDermott
International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181], which
reads as follows:
'52. The 1996 Act makes provision for the
supervisory role of courts, for the review of the arbitral
award only to ensure fairness. Intervention of the court
is envisaged in few circumstances only, like, in case of
fraud or bias by the arbitrators, violation of natural
justice, etc. The court cannot correct errors of the
arbitrators. It can only quash the award leaving the
parties free to begin the arbitration again if it is
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desired. So, the scheme of the provision aims at
keeping the supervisory role of the court at minimum
level and this can be justified as parties to the
agreement make a conscious decision to exclude the
court's jurisdiction by opting for arbitration as they
prefer the expediency and finality offered by it.'
Owing to the discussion and dispositive reasoning thus
far both captioned OPs are allowed. To be noted,
though the prayer talks about setting aside the awards
on several grounds, it will suffice to say that this Court
by saying that the OPs are allowed means that
impugned awards are set aside. This shall be borne in
mind while drafting process is done by Registry qua
this order. Consequently A.Nos.1760 of 2017 and
A.No.1821 of 2017 stand closed. Owing to the
trajectory of the hearing today, there shall be no order
as to costs.
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23. Being an order passed on merits, the petitioner instead of
preferring an appeal against the said order, has chosen to initiate fresh
arbitration that too belatedly beyond the period of limitation. This petition
filed under Section 11 of the Arbitration and Conciliation Act, is hopelessly
barred by the law of limitation due to the following reasons:
a) No leave was obtained by the petitioner from the learned Single
Judge when he had set aside the earlier arbitral award through his order
dated 05.01.2021 passed in O.P.Nos.241 and 252 of 2017 to initiate fresh
arbitration. Neither did the petitioner seek such a leave.
b) The cause of action for the dispute arose in the year 2014 itself.
Unless and until the petitioner was granted leave to initiate fresh arbitration,
the question of calculating limitation from the date of the fresh arbitration
invocation notice, subsequent to the order dated 05.01.2021 passed by the
learned Single Judge in O.P.Nos.241 and 252 of 2017 i.e., in the year 2022,
does not arise;
c) The cause of action for initiating arbitration arose in the year 2014
itself and the petitioner had also invoked arbitration by issuing notice to the
respondents on 03.05.2014 itself in compliance with Section 21 of the
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Arbitration and Conciliation Act. Pursuant to the said notice, arbitration was
also initiated and an arbitral award was also passed. However, the said
arbitral award was set aside by a learned Single Judge of this Court. The
period of limitation for filing an application under Section 11 of the
Arbitration and Conciliation Act will commence from 03.05.2014 when the
petitioner had invoked the arbitration clause. Since the arbitral award was
set aside by a learned Single Judge of this Court, this Court is of the
considered view that even if the said arbitral award was not passed on
merits and an implied leave was granted to the petitioner to initiate fresh
arbitration, the issuance of fresh arbitral invocation notices on 24.06.2022
and 27.12.2022 will not save limitation as the cause action for initiating
arbitration arose in the year 2014 itself. Even if the time spent by the
petitioner before the arbitral proceedings and before this Court which
culminated in the arbitral award being set aside by a learned Single Judge of
this Court on 05.01.2021 is excluded as per Section 14 of the Limitation Act
for the purpose of saving limitation, the present petition is hopelessly barred
by law of limitation since this petition was filed only on 26.04.2024 beyond
the period of three years from 05.01.2021 as the cause of action for
initiating arbitration arose in the year 2014 itself which was also initiated by
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the petitioner through their arbitration invocation notice dated 03.05.2014.
Fresh arbitration invocation notices sent by the petitioner subsequent to the
order passed by the learned Single Judge on 05.01.2021 setting aside the
arbitral award will not save limitation as the cause of action for invoking
arbitration arose in the year 2014 itself and only the time spent in the earlier
arbitration and the time spent before this Court in the Section 34 petition
can be excluded for the purpose of saving limitation;
c) In this petition filed before this Court, an averment has been made
that since the learned Single Judge has followed McDermott International
Inc. Vs. Burn Standard Co. Ltd., (2006) 11 SCC 181 the decision of the
Honourable Supreme Court, leave has been granted to the petitioner to
initiate fresh arbitration. However, as seen from the order dated 05.01.2021
passed by the learned Single Judge in O.P.Nos.241 and 252 of 2017,
eventhough the learned Single Judge had followed McDermott
International Inc. Vs. Burn Standard Co. Ltd., (2006) 11 SCC 181
decision of the Honourable Supreme Court, he has thought it fit not to grant
leave to the petitioner to initiate fresh arbitration. Orders of Courts cannot
be interpreted through implication and if the said practice is followed,
litigation will never attain finality. When the order of the learned Single
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Judge makes it clear that no leave was granted for the petitioner to initiate
fresh arbitration, the matter ends there. Instead of challenging the order
passed by the learned Single Judge, the petitioner for reasons best known to
them have initiated fresh arbitration, which is also hopelessly barred by the
law of limitation.
24. McDermott International Inc. Vs. Burn Standard Co. Ltd.,
(2006) 11 SCC 181 decision also states that the parties will have to agree
for fresh arbitration. In the instant case, the respondents have not agreed for
initiation of fresh arbitration by the petitioner. Therefore, the contention of
the respondents that no leave was granted for the petitioner to initiate fresh
arbitration has to be accepted by this Court.
25. For a cause of action, which arose in the year 2014, the petitioner
seeks to revive the claim by initiating fresh arbitration in the year 2022 and
by filing this petition on 26.04.2024, beyond the period of 3 years from
05.01.2021 when the learned Single Judge of this Court through his order
passed in O.P.Nos.241 and 252 of 2017 set aside the arbitral award, which
was earlier passed in favour of the petitioner against the respondents.
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26. The improper conduct of the petitioner is also to be taken note of.
The petitioner subsequent to the order dated 05.01.2021 passed in
O.P.Nos.241 and 252 of 2017 had once again appointed another arbitrator
through an Arbitral institution. They have also named an arbitrator.
According to the petitioner, since the respondents had raised objections with
regard to the appointment of the arbitrator by the Arbitral institution, they
are constrained to file this petition under Section 11 of the Arbitration and
Conciliation Act. They have chosen to file this petition under Section 11 of
the Arbitration and Conciliation Act, which is hopelessly barred by the law
of limitation for the reasons stated supra.
27. The Honourable Supreme Court in the case of M/s.ARIF Azim
Co. Ltd. Vs. M/s.APTECH Ltd. reported in AIR 2024 SC 1347 has held
that a referral Court should satisfy itself that the petition is within the period
of limitation and that the claim is not an exfacie dead claim. The
Honourable Supreme Court in paragraph No.89 of the aforesaid decision
has held that while considering the issue of limitation in relation to the
petition under Section 11(6) of the Arbitration and Conciliation Act, the
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Court should satisfy themselves on two aspects by employing two-pronged
tests: viz
a) Whether the petition under Section 11 (6) of the Arbitration and
Conciliation Act is barred by limitation;
b) Whether the claims sought to be arbitrated are ex-facie dead claims
and are thus barred by limitation on the date of commencement of arbitral
proceedings.
28. The Honourable Supreme Court has held that if either of these
issues are answered against the party seeking referral of disputes to
arbitration, the Court may refuse to appoint an arbitral Tribunal. The case on
hand is a case, which is hopelessly barred by the law of limitation as seen
from the discussion referred to supra. Therefore, when it is abundantly clear
that the claim of the petitioner is hopelessly barred by the law of limitation,
the need for appointment of an arbitrator by this Court does not arise.
29. The decisions relied upon by the learned counsel for the petitioner
viz., i. Shree Ram Mills Ltd., Vs. Utility Premises (P) Ltd., reported in
MANU/SC/1999/2007;
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ii. Aakash Educational Services Ltd., Vs. Lotus Education and
Others reported in 2024 SCC Online Del 1223;
iii. GOQII Technologies Private Ltd., Vs. Sokrati Technologies Pvt.
Ltd. reported in 2025 (2) SCC 192
have no bearing for the facts of the instant case. Since those decisions did
not deal specifically with an arbitral claim, which is hopelessly barred by
the law of limitation, they are not applicable to the facts of the instant case,
where the arbitral claim is hopelessly barred by law of limitation. Only
when there is a doubt with regard to whether the claim of the petitioner is
barred by limitation or not, an in-depth analysis need not be made by the
referral Court and the said issue will have to be left open for the arbitrator to
decide since the limitation issue will then become a mixed question of fact
and law. The case on hand is a case where it is undoubtedly clear that the
arbitral claim of the petitioner against the respondents is hopelessly barred
by the law of limitation.
30. For the foregoing reasons, this Court does not find any merit in
this petition since the petition is hopelessly barred by the law of limitation.
However, the learned counsel for the petitioner would submit that the
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Arb.O.P.(Com. Div.) No.448 of 2024
respondents had mortgaged their properties in favour of the petitioner to
secure the loan and therefore, the petitioner's right to pursue a mortgage
claim against the respondents by filing a Civil Suit should not be defeated.
For a mortgage claim, the limitation is 12 years from the date when the
cause of action arose. Mortgage claims are also non arbitrable disputes since
the said claim is an action in rem. If so advised, the petitioner can approach
a Civil Court to redress their mortgage remedy, if any. Therefore, liberty is
granted to the petitioner to approach a Civil Court by filing a mortgage
claim against the respondents. The respondents are also granted liberty to
raise all objections as and when such a Civil Suit is filed by the petitioner
which includes raising the defence of limitation.
31. Accordingly, this petition is dismissed. No Costs.
12.03.2025
Index : Yes/No
Speaking Order : Yes / No
Neutral Citation Case: Yes
ab
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Arb.O.P.(Com. Div.) No.448 of 2024
ABDUL QUDDHOSE. J.,
ab
Arb.O.P.(Com. Div.) No.448 of 2024
12.03.2025
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