# Bhookan Saran v. Hindustan Petroleum Corp. Ltd. Thru. Chairman And M.D. & Anr

- **Citation:** (2025) 8 ILRA 397
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-05
- **Case number:** Civil Misc. Arbitration Application No. 61 of 2021
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhookan-saran-v-hindustan-petroleum-corp-ltd-thru-chairman-and-m-d-anr-53689
- **Pages:** 11

## Headnote

Whether the petition under Section 11(6) of the
Arbitration and Conciliation Act, 1996, seeking
appointment of an arbitrator, is maintainable
despite a delay of over nine years from the date
of cause of action.

HEADNOTES
Civil Law - Arbitration and Conciliation
Act, 1996 - Section - 11(6), - Limitation
Act, 1963 - Section - 5- Application under
Section 11(6) of the Act, 1996 - Applicant is a
dealership firm - running dealership of HPCL
- dealership dispute - HPCL terminated the
dealership - as agreement, petitioner invoked
arbitration clause - but failed to respond to
HPCL's proposed arbitrator due to personal
reasons, including his wife's illness and death
- Nearly eight years later, again sought
appointment of an arbitrator - but HPCL
rejected requests as time-barred - Application
under Section 11(6) of the Act, 1996 filed -
initially application was dismissed for nonprosecution
-
but
later
restored
after
condonation of delay, as well as after
substitution of legal heirs of the applicant -
Court finds that, the Application is barred by
limitation and the petitioner has been unable
to explain the cause for delay of over nine
years and the ground shown does not fall
within the exceptional circumstances, which
may persuade this court to entertain the
petition - held - in the light of decision of
Apex Court in case of 'HPCL Bio-Fuels Ltd. v.
Shahaji
Bhanudas
Bhad'
no
case
for
interference is made out - hence, petition is
dismissed as barred by limitation. (Para - 25,
27)
Application Dismissed. (E-11)

CASE LAW CITED
HPCL Bio-Fuels Ltd. v. Shahaji Bhanudas
Bhad, 2024 SCC OnLine SC 3190; Geo Miller
and Company Private Limited v. Chairman,
Rajasthan Vidyut Utpadan Nigam, (2020) 14
SCC 643; Secunderabad Cantonment Board v.
B. Ramachandraiah and others, (2021) 5 SCC
705; B and T AG v. Ministry of Defence, 2023
SCC OnLine SC 657; H. Guruswamy & Ors. v.
A. Krishnaiah, 2025 SCC OnLine SC 54;
Thirunagalingam v. Lingeswaran, 2025 SCC
OnLine SC 1093.

LIST OF ACTS
Arbitration
and
Conciliation
Act,
1996,
Limitation Act, 1963.

LIST OF KEYWORDS
Arbitration - Dismissed for Non-prosecution -
Limitation - Delay Condonation - Substitution
- Dealership - termination - Exceptional
circumstances - Cause of action - barred by
limitation.

CASE ARISING FROM
Termination of dealership agreement dated
09.01.1991
between
Bhookan
Saran
(petitioner)
and
Hindustan
Petroleum
Corporation Ltd. (respondent), followed by
invocation
of
arbitration
clause
and
subsequent delay in pursuing arbitration.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Agendra Sinha.
Counsel for Respondent(s): Shri Shikhar Anand.

## Text

8 All. Bhookan Saran Vs. Hindustan Petroleum Corp. Ltd. Thru. Chairman And M.D. & Anr.
397
statutory mandate of Section 21-B of the
Hindu Marriage Act.
----------
(2025) 8 ILRA 397
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.08.2025

BEFORE

THE HON'BLE JASPREET SINGH, J.

Civil Misc. Arbitration Application No. 61 of 2021

Bhookan Saran ...Applicant
Versus
Hindustan Petroleum Corp. Ltd. Thru.
Chairman And M.D. & Anr. ...Respondents

Counsel for the Applicant:
Archit Mehrotra, Agendra Sinha, Manish
Pandey, Nikhil Mishra

Counsel for the Respondents:
Vikas Budhwar, Shikhar Anand

ISSUE FOR CONSIDERATION
Whether the petition under Section 11(6) of the
Arbitration and Conciliation Act, 1996, seeking
appointment of an arbitrator, is maintainable
despite a delay of over nine years from the date
of cause of action.

HEADNOTES
Civil Law - Arbitration and Conciliation
Act, 1996 - Section - 11(6), - Limitation
Act, 1963 - Section - 5- Application under
Section 11(6) of the Act, 1996 - Applicant is a
dealership firm - running dealership of HPCL
- dealership dispute - HPCL terminated the
dealership - as agreement, petitioner invoked
arbitration clause - but failed to respond to
HPCL's proposed arbitrator due to personal
reasons, including his wife's illness and death
- Nearly eight years later, again sought
appointment of an arbitrator - but HPCL
rejected requests as time-barred - Application
under Section 11(6) of the Act, 1996 filed -
initially application was dismissed for nonprosecution
-
but
later
restored
after
condonation of delay, as well as after
substitution of legal heirs of the applicant -
Court finds that, the Application is barred by
limitation and the petitioner has been unable
to explain the cause for delay of over nine
years and the ground shown does not fall
within the exceptional circumstances, which
may persuade this court to entertain the
petition - held - in the light of decision of
Apex Court in case of 'HPCL Bio-Fuels Ltd. v.
Shahaji
Bhanudas
Bhad'
no
case
for
interference is made out - hence, petition is
dismissed as barred by limitation. (Para - 25,
27)
Application Dismissed. (E-11)

CASE LAW CITED
HPCL Bio-Fuels Ltd. v. Shahaji Bhanudas
Bhad, 2024 SCC OnLine SC 3190; Geo Miller
and Company Private Limited v. Chairman,
Rajasthan Vidyut Utpadan Nigam, (2020) 14
SCC 643; Secunderabad Cantonment Board v.
B. Ramachandraiah and others, (2021) 5 SCC
705; B and T AG v. Ministry of Defence, 2023
SCC OnLine SC 657; H. Guruswamy & Ors. v.
A. Krishnaiah, 2025 SCC OnLine SC 54;
Thirunagalingam v. Lingeswaran, 2025 SCC
OnLine SC 1093.

LIST OF ACTS
Arbitration
and
Conciliation
Act,
1996,
Limitation Act, 1963.

LIST OF KEYWORDS
Arbitration - Dismissed for Non-prosecution -
Limitation - Delay Condonation - Substitution
- Dealership - termination - Exceptional
circumstances - Cause of action - barred by
limitation.

CASE ARISING FROM
Termination of dealership agreement dated
09.01.1991
between
Bhookan
Saran
(petitioner)
and
Hindustan
Petroleum
Corporation Ltd. (respondent), followed by
invocation
of
arbitration
clause
and
subsequent delay in pursuing arbitration.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Agendra Sinha.
Counsel for Respondent(s): Shri Shikhar Anand.

(Delivered by Hon'ble Jaspreet Singh, J.)
398 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Shri Agendra Sinha, learned
counsel for the petitioner and Shri Shikhar
Anand, learned counsel appearing for the
respondent.

2. At the outset, it may be noticed that
the instant petition under Section 11(6) of
the Arbitration & Conciliation Act of 1996
(hereinafter referred to Act of 1996) was
dismissed for want of prosecution by
means of order dated 26.09.2023.

3. The petitioner has moved an
application for recall of the said order
alongwith
an
application
seeking
condonation of delay. While the said
application was pending the petitioner has
moved another application for substitution
informing that the sole petitioner Bhookan
Saran expired and his legal heirs are to be
brought on record.

4. The Court has considered the
application for recall as well as the
application seeking condonation of delay in
doing so and finds that the cause shown is
sufficient. Accordingly the application for
recall as well as the application seeking
condonation of delay are allowed. The
order dated 26.09.2023 is recalled. The
petition stands restored after codonation of
delay.

5. The Court has thereafter considered
the application for substitution alongwith
the application seeking condonation for
delay and the ground shown therein is
found
sufficient.
Accordingly,
the
application for condonation of delay and
substitution are allowed. Learned counsel
for the appellant shall carry out the
necessary amendment and file an amended
memo of the parties with the office of the
Court in e-format within a week. It is also
made clear that the office shall ensure
carrying out the amendment before issuing
the certified copy of this order.

On merits

6. Shri Agendra Sinha, learned counsel
appearing for the petitioner submitted that
the parties had entered in a dealership
agreement dated 09.01.1991. The said
agreement in clause 68 contained a dispute
resolution mechanism. It was provided that
in case of any dispute between the parties,
the same shall be referred to the Sole
Arbitration of Managing Director of the
Corporation or some other officer of the
Corporation, who may be nominated by the
Managing Director to Act as the Sole
Arbitrator.

7. In the aforesaid backdrop, it was
stated that the petitioner was running his
dealership under the name and style of M/s
Kumar Filling Station. Certain disputed
accrued between the parties arising out of
the said agreement. As a consequence, the
respondent issued a show cause to the
petitioner dated 13.07.2010. The petitioner
furnished his reply to the said show cause
on 07.10.2010 wherein all the allegations
made against the petitioner were disputed.

8. The respondent considering the
reply of the petitioner issued a termination
letter dated 09.05.2011 citing infringement
of clauses 9, 44, 46, 47(ii) and 58 of the
dealership agreement.

9. The petitioner being aggrieved
against the unilateral termination of the
dealership invoked the arbitration clause. In
reply to the same, the respondent issued a
letter dated 31.10.2011 proposing the name
of a retired officer of HPCL as the
Arbitrator and requested the petitioner to
give is consent.
8 All. Bhookan Saran Vs. Hindustan Petroleum Corp. Ltd. Thru. Chairman And M.D. & Anr.
399

10. It appears to be the watershed
moment in the litigation as the petitioner
states that he did not give his consent in
response to the letter issued by the
respondent dated 31.10.2011 on the ground
that his wife Hosiyari Devi fell seriously ill
and on account of her illness the petitioner
could not peruse the matter. Later his wife
expired on account of prolonged illness and
thereafter the petitioner sent a letter to the
respondent
on
25.09.2019
seeking
appointment of an Arbitrator which was
rejected by the respondent by means of
their letter dated 20.03.2020 stating that the
claims of the petitioner were barred by
limitation.

11. It is further stated that thereafter
on account of COVID-19 Pandemic, the
courts remained shut and once again the
petitioner vide letter dated 23.11.2020 sent
another letter to the respondent seeking
appointment of a Sole Arbitrator which too
was dismissed vide letter dated 11.01.2021
citing the earlier ground that it was barred
by limitation.

12. It is in the aforesaid backdrop that
the petitioner has filed the instant petition
under Section 11(6) of the Act of 1996 and
in support of his submissions, learned
counsel for the petitioner has relied upon
the decision of the Apex Court in HPCL
Bio-Fuels Ltd. v. Shahaji Bhanudas
Bhad, 2024 SCC OnLine SC 3190.

13.
Learned
counsel
for
the
respondent, HPCL Shri Shikhar Anand has
vehemently
opposed
the
aforesaid
submissions and stated that once the
dealership of the petitioner was terminated
on 09.05.2011, the cause of action accrued
to the petitioner. Once the cause of action
had accrued and the time began to run then
the same would not stop.

14. It is urged that the petitioner had
invoked the arbitration clause by means of
his letter and the respondent accepted the
same and proposed the name of a retired
officer of the HPCL. However, the
petitioner did not give his consent.

15. It is further submitted that
thereafter the petitioner remained silent
from 2011 and only in 2019 i.e. after eight
years, he moved another letter with the
request to appoint an Arbitrator which was
rejected by the respondent on 20.03.2020.
In the aforesaid circumstances where the
petitioner was aware that the respondent
had taken a stand that the claims of the
petitioner were barred yet again he kept
quite for few months and then again by
means of his letter dated 23.11.2020 sought
the same relief of appointment of an
Arbitrator which was again rejected on
11.01.2021 and thereafter the petitioner had
approached this Court by means of the
instant petition which is not maintainable
as the same is barred by limitation.

16. Learned counsel for the respondent
has relied upon the decision of the Apex
Court in Geo Miller and Company Private
Limited v. Chairman, Rajasthan Vidyut
Utpadan Nigam, (2020) 14 SCC 643,
Secunderabad Cantonment Board v. B.
Ramachandraiah and others, (2021) 5
SCC 705 and B and T AG v. Ministry of
Defence, 2023 SCC OnLine SC 657.

17. The Court has heard the learned
counsel for the parties and also perused the
material on record.

18. The issue before this Court is
whether the petition under Section 11(6) of
the Act of 1996 dated 28.07.2021 could be
entertained
in
the
given
facts
and
circumstances relating to a cause of action
400 INDIAN LAW REPORTS ALLAHABAD SERIES
which
accrued
to
the petitioner
on
09.05.2011 when his dealership agreement
was terminated.

19. Considering the submissions of the
learned counsel for the parties and from the
perusal of the material on record, it is not
disputed that the dealership agreement was
entered
between
the
parties
which
contained in an arbitration clause. It is also
not disputed that the said dealership was
terminated vide letter dated 09.05.2011. It
is also not disputed that the petitioner had
invoked the arbitration clause and in
furtherance thereof the respondent vide
their letter dated 31.10.2011 had proposed
the name of a retired officer of the
Corporation to act as a Sole Arbitrator and
the consent of the petitioner was sought and
admittedly the petitioner did not respond to
the said letter.

20.
In
the
aforesaid
admitted
backdrop, the contention of the petitioner is
that he could not give his consent as his
wife fell seriously ill in the year 2011. In
this context, the petitioner has filed several
photocopies of documents cumulatively as
annexure no.10. The said documents at
running page 72 indicate that it relates to
year 1997, similarly, the document page
no.73
of
the
year
1996.
Certain
pathological reports brought on record are
also of the year 1996 (running page 76 to
77). Certain other documents have been
brought on record which relate to the year
February 2015 onwards, then there are
certain documents relating to the year 2017.
Few documents have been brought on
record relating to August 2020.

21. The fact remains that neither in the
pleading it has been indicated as to what
disease or illness inflicted the wife of the
petitioner and how he was handicapped from
continuing the proceedings. Apparently, the
documents relate to the year 1996-97 which
have no relevance at all to the cause of action
accruing in the year 2011. There are no
documents of the year 2011 which can
indicate that the wife of the petitioner fell
seriously ill. It appears that deliberate attempt
has been made to introduce the document
with an intend to cover a span of nine years.
This Court upon examining the said
documents and the contention of the
petitioner is unable to accept the explanation
as offered for seeking condonation of delay
of more than nine years.

22. It is now too well settled to be
disputed that it is not the length of delay
which is material rather it is the sufficiency of
cause which is important. Even a short delay
if not adequately explained can be fatal
whereas even if the delay is huge but
adequately explained then the same can also
be condoned. It is also to be kept in mind that
even though the concept of sufficient cause
may be liberally construed yet it has to be
borne in mind that it may not work injustice
to the other side as condonation of delay is
not an act of generosity. In H. Guruswamy &
Ors. v. A. Krishnaiah, 2025 SCC OnLine SC
54 the Apex Court had the occasion to
consider the issue of condonation of delay
and it held as under:-

"13. We are at our wits end to
understand
why
the
High
Court
overlooked all the aforesaid aspects. What
was the good reason for the High Court to
ignore all this? Time and again, the
Supreme Court has reminded the District
judiciary as well the High courts that the
concepts such as "liberal approach",
"Justice oriented approach", "substantial
justice" should not be employed to
frustrate or jettison the substantial law of
limitation.
8 All. Bhookan Saran Vs. Hindustan Petroleum Corp. Ltd. Thru. Chairman And M.D. & Anr.
401

14.
We
are
constrained
to
observe that the High Court has exhibited
complete absence of judicial conscience
and restraints, which a judge is expected to
maintain while adjudicating a lis between
the parties.

15. The rules of limitation are not
meant to destroy the rights of parties. They
are meant to see that the parties do not
resort to dilatory tactics but seek their
remedy promptly.

16. The length of the delay is
definitely a relevant matter which the court
must
take
into
consideration
while
considering whether the delay should be
condoned or not. From the tenor of the
approach of the respondents herein, it
appears that they want to fix their own
period of limitation for the purpose of
instituting the proceedings for which law
has prescribed a period of limitation. Once
it is held that a party has lost his right to
have the matter considered on merits
because of his own inaction for a long, it
cannot be presumed to be non-deliberate
delay and in such circumstances of the
case, he cannot be heard to plead that the
substantial justice deserves to be preferred
as against the technical considerations.
While considering the plea for condonation
of delay, the court must not start with the
merits of the main matter. The court owes a
duty to first ascertain the bona fides of the
explanation offered by the party seeking
condonation. It is only if the sufficient
cause assigned by the litigant and the
opposition of the other side is equally
balanced that the court may bring into aid
the merits of the matter for the purpose of
condoning the delay.

17. We are of the view that the
question of limitation is not merely a
technical consideration. The rules of
limitation are based on the principles of
sound public policy and principles of
equity. No court should keep the 'Sword of
Damocles' hanging over the head of a
litigant for an indefinite period of time."

23. Recently, the Apex Court in
Thirunagalingam v. Lingeswaran, 2025
SCC OnLine SC 1093 held as under :-

"31. It is a well-settled law that
while considering the plea for condonation
of delay, the first and foremost duty of the
court is to first ascertain the bona fides of
the explanation offered by the party seeking
condonation rather than starting with the
merits of the main matter. Only when
sufficient cause or reasons given for the
delay by the litigant and the opposition of
the other side is equally balanced or stand
on equal footing, the court may consider
the merits of the main matter for the
purpose of condoning the delay.

32. Further, this Court has
repeatedly emphasised in several cases that
delay should not be condoned merely as an
act of generosity. The pursuit of substantial
justice must not come at the cost of causing
prejudice to the opposing party. In the
present case, the respondents/defendants
have failed to demonstrate reasonable
grounds of delay in pursuing the matter,
and this crucial requirement for condoning
the delay remains unmet."

24. In the aforesaid backdrop, now if
the decision of the Apex Court in HPCL
Bio-Fuels Ltd. (supra) is seen, it would
reveal that the Apex Court in para 117 has
held as under:-

"117.
As
discussed
in
the
foregoing parts of this judgment, the period
402 INDIAN LAW REPORTS ALLAHABAD SERIES
of limitation to file an application under
Section 11(6) of the Act, 1996 is governed
as provided in Article 137 of the Schedule
to the Limitation Act, that is, three years.
We have observed that the benefit available
under Section 14 of the Limitation Act will
also be available in respect of applications
made under Section 11(6) of the Act, 1996.
Thus, in the absence of any specific
statutory exclusion, there is no good reason
to hold that the benefit under Section 5 of
the Limitation Act cannot be availed for the
purpose of condonation of delay caused in
filing a Section 11(6) application."

However, after considering the
various decisions of the Apex Court on the
aforesaid point, it laid the ratio in paras 123
and 124 as under:-

"123. The primary intent behind
Section 5 of the Limitation Act is not to
permit litigants to exploit procedural
loopholes and continue with the legal
proceedings in multiple forums. Rather, it
aims to provide a safeguard for genuinely
deserving applicants who might have
missed a deadline due to unavoidable
circumstances. This provision reflects the
intent of the legislature to balance the
principles of justice and fairness, ensuring
that procedural delays do not hinder the
pursuit of substantive justice. Section 5 of
the Limitation Act embodies the principle
that genuine delay should not be a bar
access to justice, thus allowing flexibility in
the interest of equity, while simultaneously
deterring abuse of this leniency to prolong
litigation unnecessarily.

124. The legislative intent of
expeditious dispute resolution under the
Act, 1996 must also be kept in mind by the
courts while considering an application for
condonation of delay in the filing of an
application for appointment of arbitrator
under Section 11(6). Thus, the court should
exercise its discretion under Section 5 of
the Limitation Act only in exceptional cases
where a very strong case is made by the
applicant for the condonation of delay in
filing a Section 11(6) application."

25. Thus, it is clear that the scheme of
the Arbitration & Conciliation Act of 1996
is such that the Court while examining its
powers to condone the delay can do so only
in exceptional cases, where a strong case is
made out for condonation of delay in filing
an application under Section 11(6) of the
Act of 1996. Needless to say in light of the
averments which have been made in the
petition i.e. paras 15 to 20, this Court does
not find that cause for delay of nine years
has been adequately explained.

26. Insofar as the decision cited by the
learned counsel for the respondents are
concerned, suffice to state that the Apex
Court in B and T AG (supra) has
considered the other decisions as cited by
the respondent hence, it will be appropriate
to consider the relevant paras of B and T
AG (supra) which notices the law on the
subject.

"31. Since a petition under
Section 11(6) of the 1996 Act for seeking
appointment
of
Arbitral
Tribunal
is
required to be filed before the High Court
or the Supreme Court, as the case may be,
Article 137 of the Schedule to the 1963 Act
would apply.

32. Article 137 reads thus:

"Description
of suit

Period
of
limitation

Time from
when
period
begins
to
8 All. Bhookan Saran Vs. Hindustan Petroleum Corp. Ltd. Thru. Chairman And M.D. & Anr.
403
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."

33. A plain reading of the
aforesaid Article would indicate that the
period of limitation in cases covered by
Article 137 is three years and the said
period would begin to run when the right to
apply accrues.

34.
The
starting
point
of
limitation under Article 137 according to
third column of the Article is the date when
"the right to apply arises". This being a
residuary Article to be adopted to different
classes of applications, the expression "the
right to apply" is an expression of a broad
common law principle and should be
interpreted according to the circumstances
of each case. "The right to apply" has been
interpreted to mean "the right to apply first
arises".
(See
:
Merla
Ramanna
v.
Nallaparaju
[Merla
Ramanna
v.
Nallaparaju, 1955 SCC OnLine SC 116 :
(1955) 2 SCR 938 : AIR 1956 SC 87] .)

35.
Further,
it
would
be
necessary to refer to Section 9 of the 1963
Act which reads thus:

"9.
Continuous
running
of
time.-Where once time has begun to run,
no subsequent disability or inability to
institute a suit or make an application stops
it:

Provided that, where letters of
administration to the estate of a creditor
have been granted to his debtor, the
running of the period of limitation for a suit
to recover the debt shall be suspended
while the administration continues."

(emphasis supplied)

********

48. In BSNL v. Nortel Networks
(India) (P) Ltd. [BSNL v. Nortel Networks
(India) (P) Ltd., (2021) 5 SCC 738 : (2021)
3 SCC (Civ) 352] , this Court undertook a
comprehensive analysis of the relevant
provisions and held that in cases where
claims are ex facie time-barred, the Court
may refuse to make reference under Section
11 of the 1996 Act. This decision assumes
importance and we should look into the
same in little details. The appellant BSNL
issued a tender notification inviting bids for
planning, engineering, supply, insulation,
testing and commissioning of GSM based
cellular mobile network in the Southern
region. The respondent company was
awarded
the
purchase
order.
On
completion of the project, the appellant
withheld an amount of Rs 99.70 crores
towards the liquidated damages and other
levies. The respondent raised a claim on
13-5-2014 for payment of the abovesaid
amount from the appellant who rejected the
claim on 4-8-2014.

49. The respondent in Nortel
Networks [BSNL v. Nortel Networks (India)
(P) Ltd., (2021) 5 SCC 738 : (2021) 3 SCC
(Civ) 352] , after a period of over 5.5 years
invoked
the
arbitration
clause
and
requested for the appointment of an
independent arbitrator on 29-4-2020. It
was also contended that the dispute of
withholding the said amount, would fall
404 INDIAN LAW REPORTS ALLAHABAD SERIES
within the ambit of arbitrable disputes
under the agreement. The appellant on 9-62020
replied
that
the
request
for
appointment of an arbitrator could not be
entertained since the case had already been
closed and the notice invoking arbitration
was time-barred.

********

58. In Secunderabad Cantonment
Board v. B. Ramachandraiah & Sons
[Secunderabad Cantonment Board v. B.
Ramachandraiah & Sons, (2021) 5 SCC
705 : (2021) 3 SCC (Civ) 335] , while
taking note of both Nortel Networks case
[BSNL v. Nortel Networks (India) (P) Ltd.,
(2021) 5 SCC 738 : (2021) 3 SCC (Civ)
352] and Geo Miller [Geo Miller & Co. (P)
Ltd. v. Rajasthan Vidyut Utpadan Nigam
Ltd., (2020) 14 SCC 643] , it is held as
under : (Secunderabad Cantonment Board
case [Secunderabad Cantonment Board v.
B. Ramachandraiah & Sons, (2021) 5 SCC
705 : (2021) 3 SCC (Civ) 335] , SCC pp.
722-23, para 19)

"19.
Applying
the
aforesaid
judgments to the facts of this case, so far as
the applicability of Article 137 of the
Limitation Act to the applications under
Section 11 of the Arbitration Act is
concerned, it is clear that the demand for
arbitration in the present case was made by
the letter dated 7-11-2006. This demand
was reiterated by a letter dated 13-1-2007,
which letter itself informed the appellant
that appointment of an arbitrator would
have to be made within 30 days. At the very
latest, therefore, on the facts of this case,
time began to run on and from 12-2-2007.
The appellant's laconic letter dated 23-12007, which stated that the matter was
under consideration, was within the 30-day
period. On and from 12-2-2007, when no
arbitrator was appointed, the cause of
action for appointment of an arbitrator
accrued to the respondent and time began
running from that day. Obviously, once
time has started running, any final
rejection by the appellant by its letter dated
10-11-2010 would not give any fresh start
to a limitation period which has already
begun running, following the mandate of
Section 9 of the Limitation Act. This being
the case, the High Court was clearly in
error in stating that since the applications
under Section 11 of the Arbitration Act
were filed on 6-11-2013, they were within
the limitation period of three years starting
from 10-11-2020. On this count, the
applications under Section 11 of the
Arbitration
Act,
themselves
being
hopelessly time-barred, no arbitrator could
have been appointed by the High Court."

(emphasis supplied)

********

67. In Law of Arbitration by
Justice Bachawat at p. 549, commenting on
Section 37, it is stated that subject to the
1963 Act, every arbitration must be
commenced within the prescribed period.
Just as in the case of actions the claim is
not to be brought after the expiration of a
specified number of years from the date
when the cause of action accrues, so in the
case of arbitrations the claim is not to be
put forward after the expiration of a
specified number of years from the date
when the claim accrues. For the purpose of
Section 37(1) "action" and "cause of
arbitration"
should
be
construed
as
arbitration and cause of arbitration. The
cause of arbitration arises when the
claimant becomes entitled to raise the
question, that is, when the claimant
acquires the right to require arbitration. An
8 All. Bhookan Saran Vs. Hindustan Petroleum Corp. Ltd. Thru. Chairman And M.D. & Anr.
405
application under Section 11 of the 1996
Act is governed by Article 137 of the
Schedule to the 1963 Act and must be made
within 3 years from the date when the right
to apply first accrues. There is no right to
apply until there is a clear and unequivocal
denial of that right by the respondent. It
must, therefore, be clear that the claim for
arbitration must be raised as soon as the
cause for arbitration arises as in the case
of cause of action arisen in a civil action.

68. Whether any particular facts
constitute a cause of action has to be
determined with reference to the facts of
each case and with reference to, the
substance, rather than the form of the
action. If an infringement of a right
happens at a particular time, the whole
cause of action will be said to have arisen
then and there. In such a case, it is not
open to a party to sit tight and not to file an
application for settlement of dispute of his
right, which had been infringed, within the
time provided by the Limitation Act, and,
allow his right to be extinguished by lapse
of time, and thereafter, to wait for another
cause of action and then file an application
under Section 11 of the 1996 Act for
establishment of his right which was not
then alive, and, which had been long
extinguished because, in such a case, such
an application would mean an application
for revival of a right, which had long been
extinguished under the 1963 Act and is,
therefore, dead for all purposes. Such
proceedings would not be maintainable and
would obviously be met by the plea of
limitation under Article 137 of the 1963
Act.

*********

75. The observations made by this
Court in Panchu Gopal [Panchu Gopal
Bose v. Port of Calcutta, (1993) 4 SCC
338] in paras 10, 11, 12, 13, 14 and 15
respectively,
are
also
relevant.
The
observations read as under : (SCC pp. 34547, paras 10-15)

"10. In West Riding County
Council v. Huddersfield Corpn. [West
Riding County Council v. Huddersfield
Corpn., (1957) 1 QB 540 : (1957) 2 WLR
428 : (1957) 1 All ER 669] the Queen's
Bench Division, Lord Goddard, C.J. (as he
then was) held that the Limitation Act
applies to arbitrations as it applies to
actions in the High Court and the making,
after a claim has become statute-barred, of
a submission of it to arbitration, does not
prevent the statute of limitation being
pleaded. Russel on Arbitration, 19th Edn.,
reiterates the above proposition. At p. 4 it
was further stated that the parties to an
arbitration agreement may provide therein,
if they wish, that an arbitration must be
commenced within a shorter period than
that allowed by statute; but the court then
has power to enlarge the time so agreed.
The period of limitation for commencing an
arbitration runs from the date on which the
cause of arbitration accrued, that is to say,
from the date when the claimant first
acquired either a right of action or a right
to require that an arbitration takes place
upon the dispute concerned.

11. Therefore, the period of
limitation for the commencement of an
arbitration runs from the date on which,
had there been no arbitration clause, the
cause of action would have accrued. Just
as in the case of actions the claim is not to
be brought after the expiration of a
specified number of years from the date on
which the cause of action accrued, so in the
case of arbitrations, the claim is not to be
put forward after the expiration of the
406 INDIAN LAW REPORTS ALLAHABAD SERIES
specified number of years from the date
when the claim accrued.

12. In Russell on Arbitration, at
pp. 72 and 73 it is stated thus:

'Disputes under a contract may
also be removed, in effect, from the
jurisdiction of the court, by including an
arbitration
clause
in
the
contract,
providing that any arbitration under it must
be commenced within a certain time or not
at all, and going on to provide that if an
arbitration is not so commenced the claim
concerned shall be barred. Such provisions
are not necessarily found together. Thus
the contract may limit the time for
arbitration without barring the claim
depriving a party who is out of time of his
right to claim arbitration but leaving open
a right of action in the courts. Or it may
make compliance with a time-limit a
condition of any claim without limiting the
operation of the arbitration clause, leaving
a party who is out of time with the right to
claim arbitration but so that it is a defence
in the arbitration that the claim is out of
time and barred. Nor, since the provisions
concerned are essentially separate, is there
anything to prevent the party relying on the
limitation clause waiving his objection to
arbitration whilst still relying on the clause
as barring the claim.'

At p. 80 it is stated thus:

'An extension of time is not
automatic and it is only granted if "undue
hardship" would otherwise be caused. Not
all
hardship,
however,
is
"undue
hardship"; it may be proper that hardship
caused to a party by his own default should
be borne by him, and not transferred to the
other party by allowing a claim to be
reopened after it has become barred. The
mere fact that a claim was barred could not
be held to be "undue hardship".'

13. The Law of Arbitration by
Justice Bachawat in Chapter 37 at p. 549 it
is stated that just as in the case of actions
the claim is not to be brought after the
expiration of a specified number of years
from the date when the claim accrues, so
also in the case of arbitrations, the claim is
not to be put forward after the expiration of
a specified number of years from the date
when the claim accrues. For the purpose of
Section 37(1) "action" and "cause of
action" in the Limitation Act should be
construed as arbitration and cause of
arbitration. The cause of arbitration,
therefore,
arises
when
the
claimant
becomes entitled to raise the question i.e.
when the claimant acquires the right to
require arbitration. The limitation would
run from the date when cause of arbitration
would have accrued, but for the agreement.

14. Arbitration implies to charter
out timeous commencement of arbitration
availing the arbitral agreement, as soon as
difference or dispute has arisen. Delay
defeats
justice
and
equity
aid
the
promptitude and resultant consequences.
Defaulting party should bear the hardship
and should not transmit the hardship to the
other party, after the claim in the cause of
arbitration was allowed to be barred. The
question, therefore, as posed earlier is
whether the court would be justified to
permit a contracting party to rescind the
contract or the court can revoke the
authority
to
refer
the
disputes
or
differences to arbitration. Justice Bachawat
in his Law of Arbitration, at p. 552 stated
that 'in an appropriate case leave should
be given to revoke the authority of the
arbitrator'. It was also stated that an
ordinary
submission
without
special
8 All. Pradeep Mishra Vs. State of U.P.
407
stipulation limiting or conditioning the
functions of the arbitrator carried with it
the implication that the arbitrator should
give effect to all legal defences such as that
of limitation. Accordingly the arbitrator
was entitled and bound to apply the law of
limitation. Section 3 of the Limitation Act
applied by way of analogy to arbitration
proceedings, and like interpretation was
given to Section 14 of the Limitation Act.
The proceedings before the arbitration are
like civil proceedings before the court
within the meaning of Section 14 of the
Limitation Act. By consent the parties have
substituted the arbitrator for a court of law
to arbiter their disputes or differences. It is,
therefore, open to the parties to plead in
the proceedings before him of limitation as
a defence.

15.
In
Mustiu
and
Boyd's
Commercial Arbitration (1982 Edn.) under
the heading "Hopeless Claim" in Chapter
31 at p. 436 it is stated thus:

'There
is
undoubtedly
no
jurisdiction
to
interfere
by
way
of
injunction to prevent the respondent from
being harassed by a claim which can never
lead to valid award for example in cases
where claim is brought in respect of the
alleged arbitration agreement which does
not really exist or which has ceased to
exist. So also where the dispute lies outside
the scope of arbitration agreement.' "

(emphasis supplied)

27. Considering the consistent dictum
of the Apex Court as noticed hereinabove,
this Court is of the clear view that the
petitioner has been unable to explain the
cause for delay of over nine years and the
ground shown does not fall within the
exceptional circumstances, which may
persuade this Court to entertain the petition.
Even if Section 5 of the Limitation Act is
considered as suggested by the learned
counsel for the petitioner yet in light of
paras 123 and 124 of HPCL Bio-Fuels Ltd.
(supra) no case for interference is made
out, hence, the said decision does not come
to the aid of the petitioner.

28. For the aforesaid reasons, the
petition
is
dismissed
as
barred
by
limitation. There shall be no order as to
costs.
----------
(2025) 8 ILRA 407
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.08.2025

BEFORE

THE HON'BLE DR. GAUTAM CHOWDHARY, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 8077 of 2024

Pradeep Mishra ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Kartikey Mishra, Nitin Sharma, Sarvesh

Counsel for the Opposite Party:
G.A., Manish Singh, Sushma Singh

ISSUE FOR CONSIDERATION
Whether
the
applicant,
against
whom
proceedings under Section 82 Cr.P.C. have been
initiated and who is alleged to be absconding, is
entitled to anticipatory bail?

HEADNOTES
Civil Law - Code of Criminal Procedure,
1973 - Section - 82, 83, 438 - Indian Penal
Code, 1860 - Section - 420, 467, 468, 471,
120-B - Anticipatory Bail Application - filed
under Section 482 B.N.S.S. (equivalent to
Section 438 Cr.P.C.) by the applicant - in a