# Sri Rajendra Prasad Singh v. M/S Arch Construction & Ors

- **Citation:** (2026) 4 ILRA 1325
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-27
- **Case number:** Writ C No. 10703 of 2025
- **Bench:** Shekhar B. Saraf, Abdhesh Kumar Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-rajendra-prasad-singh-v-m-s-arch-construction-ors-54746
- **Pages:** 22

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4 All. Sri Rajendra Prasad Singh Vs. M/S Arch Construction & Ors.
1325
21. It is, however, directed that any applications filed by the petitioner before the Executing
Court shall be considered and decided expeditiously in accordance with law, without being
influenced by any observation made herein.

22. It is further provided that the petitioner shall be at liberty to avail such other statutory
remedies as may be available in law.

23. No order as to costs.
----------
(2026) 4 ILRA 1325
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.04.2026

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE ABDHESH KUMAR CHAUDHARY, J.

Writ C No. 10703 of 2025

Sri Rajendra Prasad Singh ...Petitioner
Versus
M/S Arch Construction & Ors. ...Respondents

ISSUE FOR CONSIDERATION
Whether the High Court under Article 226 can interfere with the interlocutory order passed by the Arbitral
Tribunal under Section 16 of the Arbitration and Conciliation Act, 1996?

Whether the High Court, while appointing an arbitrator under Section 11(6), is required to adjudicate the
issue of limitation?

Whether the Arbitral Tribunal erred in law by refusing to adjudicate the petitioner's preliminary objection on
limitation under Section 16?

HEADNOTES
Civil Law - Constitution of India - Article 226 - Arbitration and Conciliation Act, 1996 - Sections
5, 11, 16, 34 - Limitation Act, 1963 - Article 137, Section 22 - Contract Act, 1872 - Section 28 -
Code of Civil Procedure, 1908 - Section 9: - Writ Petition under Article 226 - for quashing the impugned
order of the Sole Arbitrator - whereby the learned Arbitral Tribunal rejected the petitioner's application moved
under Section 16 of the Act, 1996 seeking termination of arbitration proceeding on the ground of limitation -
partnership dispute - FIR for forgery - invocation of arbitration clause - appointment of arbitrator under
section 11 of the Act, 1963 by High Court - The Arbitral Tribunal declined to decide limitation objection,
holding that only the High Court could examine limitation at Section 11 stage - doctrine of competencecompetence - The petitioner pleaded that limitation is a jurisdictional issue within the Tribunal's domain -
respondents countered that the Section 11 order is final and res judicata - Court finds that, the Tribunal
abdicated its jurisdiction under Section 16, contrary to competence-competence doctrine - referral court under
Section 11 confined to examining existence of arbitration agreement - Tribunal bound to rule on limitation -
court held that, impugned order is patently illegal and perverse - therefore, impugned order quashed - writ
petition allowed with direction to the Tribunal to adjudicate preliminary objections of limitation on merits
expeditiously.
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
(Para - 29, 30, 32, 34, 35, 36)
WP Allowed. (E-11)

CASE LAW CITED
Bhaven Construction v. Sardar Sarovar Narmada Nigam Ltd., (2022) 1 SCC 75,
Ajay Madhusudan Patel v. Jyotrindra S. Patel, (2025) 2 SCC 147,
Arif Azim Co. Ltd. Vs. Aptech Ltd. - (2024) 5 SCC 313,
BSNL v. Nortel Networks (India) (P) Ltd. - (2021) 5 SCC 738;
Geo Miller & Co. (P) Ltd. v. Rajasthan Vidyut Utpadan Nigam Ltd. - (2020) 14 SCC 643;
SBI General Insurance Co. Ltd. v. Krish Spg. - (2024) 12 SCC 1;
Uttarakhand Purv Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd. - (2020) 2 SCC 455;
S.B.P. & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618,
Duro Felguera, S.A. v. Gangavaram Port Ltd. - (2017) 9 SCC 729;
Ittyavira Mathai v. Varkey Varkey - 1963 SCC OnLine SC 200;
Deep Industries Ltd. v. ONGC, (2020) 15 SCC 706;
Punjab State Power Corpn. Ltd. v. Emta Coal Ltd., (2020) 17 SCC 93;
Interplay Between Arbitration Agreements under Arbitration Act, 1996 & Stamp Act, 1899, In re, (2024) 6 SCC
1;
Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1,
National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267.

LIST OF ACTS
Constitution of India - Arbitration and Conciliation Act, 1996 - Limitation Act, 1963 - Contract Act, 1872 - Code
of Civil Procedure, 1908.

LIST OF KEYWORDS
Writ Petition - Certiorari - arbitrational clause - preliminary objections - opportunity of hearing - ruling -
Competence and jurisdiction - arbitral tribunal - Limitation - Jurisdiction - Section 11(6-A) - Section 16
Application - Minimal Judicial Interference - connotes - appointment of arbitration - mixed question of fact -
jurisdictional issue of limitation - Res Judicata - allowed.

CASE ARISING FROM
Arbitration clause invoked by the respondent no.2 and moved an application under section 11 of the Act, 1963
for appointment of an arbitrator - Petitioner filed Section 16 application challenging jurisdiction on limitation
grounds; rejected by Arbitral Tribunal.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Sri Tejas Singh, Sri Aakched Nath.
Counsel for Respondent(s): Shri Ritesh Kumar Srivastava, Sri Alok Kumar Singh.

(Delivered by Hon'ble Shekhar B. Saraf, J.)

This is a writ petition under Article 226 of the Constitution of India for the issuance of a writ
of certiorari seeking quashing of the order dated October 9, 2025, passed by a Sole arbitrator
(hereinafter also referred to as the Arbitral Tribunal/respondent no.3) whereby the application
filed by the petitioner under Section 16 of the Arbitration and Conciliation Act, 1996 (hereinafter
referred to as the Act) seeking termination of arbitration proceedings was rejected by Arbitral
Tribunal on the ground that once the High Court had appointed an arbitrator under the provisions of
Section 11 of the Act, the Arbitral Tribunal had no jurisdiction to adjudicate on the limitation
aspect for appointing such arbitrator. In furtherance, the petitioner prays for the issuance of a writ
4 All. Sri Rajendra Prasad Singh Vs. M/S Arch Construction & Ors.
1327
in the nature of certiorari terminating the entire arbitration proceedings pending before the Arbitral
Tribunal.

FACTS

2. Factual matrix giving rise to this instant petition is delineated below:

 a. The petitioner and Santosh Kumar Singh (hereinafter referred to as respondent no.
2) entered into a partnership deed dated September 13, 2013 to carry on business in the name of
M/s. Arch Construction. Subsequently, an altercation arose between the petitioner and respondent
no. 2 regarding payment in furtherance of work carried out for the Power Grid Corporation of India
Limited. In this regard, the petitioner wrote a letter dated November 7, 2015, to ICICI bank
informing it of the illegal operation of the account by the respondent no. 2, pursuant to which the
aforesaid account in ICICI Bank bearing account no. 066605000653 was frozen by the bank.

 b. The petitioner alleges that thereafter respondent no.2 opened another account in the
name of Arch Construction in Union Bank of India, Narai Bandh Branch, Mau bearing account no.
4338010042423, by forging the signature of his father, petitioner and Ajay Singh (hereinafter
referred to as respondent no.4). An application was also made before the Power Grid
Corporation to release the payments for the work into the aforesaid account. The petitioner later
discovered that the Power Grid Corporation of India Ltd. had made payment of the outstanding
amounts into the accounts provided by respondent no.2.

 c. Aggrieved by the aforesaid circumstances, the petitioner lodged an FIR No. 0620 of
2017 under Sections 406, 420, 467, 468, 471 and 506 of the Indian Penal Code, 1860 against
respondent no.2. Subsequently, the Investigating Officer filed a charge-sheet against respondent
no.2 under sections 420 and 406 of the Indian Penal Code, 1860 (corresponding to Section 318 and
Section 316 of the Bharatiya Nyaya Sanhita, 2023 (BNS)). Pursuant thereto, respondent no.2 was
arrested by the police.

 d. Respondent no.2 had also issued security cheques of the due amounts to the petitioner,
however, the same were dishonoured and as a result the petitioner filed a Complaint Case number
10531 of 2018 on December 17, 2018 before the Competent Court, Lucknow.

 e. In the meantime, respondent no.2 sent a legal notice dated September 4, 2017 to the
petitioner invoking arbitration clause to which the petitioner replied vide letter dated September 10,
2017 advising respondent no. 2 to approach the High Court seeking appointment of an arbitrator for
settlement of disputes through arbitration.

 f. In pursuance thereof, respondent no.2 filed an arbitration application under Section 11
of the Act on May 31, 2023 before the High Court for the appointment of an arbitrator in which this
Court vide order dated December 7, 2023 has ex-parte proposed respondent no.3 as the sole
arbitrator.
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
 g. Aggrieved by order dated December 7, 2023, the petitioner filed a recall application
before the High Court and on the date of hearing, the petitioner's counsel was unavailable,
therefore, the High Court rejected the recall application vide order dated July 11, 2025.

 h. Upon receiving the consent of respondent no.3, the High Court allowed the arbitration
application vide order dated August 5, 2025 whereby respondent no.3 was appointed as the sole
arbitrator and arbitration proceedings commenced. During the course of the arbitration, the
petitioner was granted time to file preliminary objections with regard to the maintainability of the
arbitration proceedings.

 i. Accordingly, the petitioner filed an application under Section 16 of the Act challenging
the jurisdiction on the ground of limitation in filing the application under Section 11 of the Act for
appointment of an arbitrator which was disposed of vide impugned order dated October 9, 2025 by
the Arbitral Tribunal. The Arbitral Tribunal came to the finding that he had no jurisdiction to
decide the said issue of limitation since the High Court had referred the matter to arbitration and as
such it was concluded that the High Court had already decided on the said issue of limitation.

 j. Aggrieved by the aforesaid order passed by the respondent no.3 rejecting the
application filed under Section 16 of the Act the petitioner has now approached this Court.

 CONTENTIONS OF PETITIONER:

2. Sri Tejas Singh and Sri Aakched Nath appearing on behalf of petitioner have made the
following submissions:

 a. Since the appointment of an arbitrator under Section 11(6) of the Act by the High
Court is not specifically barred by the Limitation Act, 1963 (hereinafter referred to as Act,
1963) the residuary provision namely Article 137 to Schedule I of the Act, 1963 applies which
bars the initiation of proceedings in the court after the lapse of three years from the date on which
the cause of action arises.

 b. The cause of action arose on or before September 4, 2017, that is, from the date of
invocation of arbitration by sending legal notice by respondent no. 2, and therefore the bar of
limitation of three years commenced from that date.

 c. Respondent no. 1 ought to have filed the application under Section 11 of the Act within
the prescribed period of three years; however, the same was filed after approximately six years,
rendering it highly time-barred. Consequently, the substantive claims of the respondents are also
barred by limitation.

 d. Since both the application under Section 11 of the Act and the underlying claim are
time-barred, the continuation of arbitration proceedings is illegal and unsustainable.

 e. Under Section 16(2) of the Act a plea regarding the lack of jurisdiction of the Arbitral
Tribunal may be raised even if a party has participated in the appointment of the arbitrator.
4 All. Sri Rajendra Prasad Singh Vs. M/S Arch Construction & Ors.
1329
 f. The learned sole arbitrator erred in rejecting the petitioners application under Section
16 of the Act on the ground that, post appointment of the arbitrator by the High Court, the Tribunal
has no jurisdiction to examine limitation aspects even though the Arbitral Tribunal is empowered to
rule on its own jurisdiction under Section 16 of the Act including issue of limitation, which is a
preliminary issue before proceeding to adjudicate the claim.

 g. The issue of limitation involves mixed questions of facts and law, which cannot be
conclusively determined by the High Court at the stage of proceeding under Section 11 of the Act.

 h. Arbitral Tribunal, observed that the respondents plea of a continuing cause of action
lacks merit, yet rejected the petitioners application solely on jurisdictional grounds. Hence the
impugned order is self-contradictory.

 i. The finding of the Arbitral Tribunal that it can examine whether the claim is timebarred or not but cannot determine as to whether the application under Section 11 is time-barred or
not is contrary to settled law and renders the impugned order illegal and perverse.

 j. The High Court may exercise its writ jurisdiction against an order passed under Section
16 in cases where a party is left remediless or where bad faith/illegality is evident.

 k. To buttress his argument counsel has placed reliance on the following cases:-

 (i) Bhaven Construction v. Sardar Sarovar Narmada Nigam Ltd.1

 (ii) Ajay Madhusudan Patel v. Jyotrindra S. Patel2

 (iii) Arif Azim Co. Ltd. v. Aptech Ltd.3

 (iv) BSNL v. Nortel Networks (India) (P) Ltd.4

 (v) Geo Miller & Co. (P) Ltd. v. Rajasthan Vidyut Utpadan Nigam Ltd.5

 (vi) SBI General Insurance Co. Ltd. v. Krish Spg.6

 (vii) Uttarakhand Purv Sainik Kalyan Nigam Ltd. v. Northern Coal Field Ltd.7

 CONTENTIONS OF RESPONDENTS:-

3. Sri Ritesh Kumar Srivastava and Sri Alok Kumar Singh appearing on behalf of the
respondents have made the following submissions:

 a. An order passed by the High Court under Section 11 of the Act appointing an arbitrator
is a judicial order having statutory finality under Section 11(7) of the Act. No appeal, including
Letters Patent Appeal, lies against such an order and the only remedy against such an order is by
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
way of a Special Leave Petition under Article 136 of the Constitution of India before the Supreme
Court.

 b. Post the 2015 amendment, brought in force on the recommendation of Law
Commission Report No. 246, the scope of judicial intervention under Section 11 has been curtailed;
however the nature of power exercised and the order passed by the High Court under Section 11
continues to remain a judicial function.

 c. Law Commission Report No. 246 refers to the role of the High Court in appointing
arbitrators as a form of judicial intervention.

 d. The order passed by the High Court appointing the arbitrator operates as res judicata
between the parties and cannot be re-agitated or reviewed in subsequent proceedings.

 e. The Arbitral Tribunal, being a creation of the High Court's order, cannot examine or sit
in appeal over the validity of the High Court's judicial order, including on the issue of limitation.

 f. Even assuming that the High Court passed the order under Section 11 of the Act
without examining the issue of limitation, an order or decree passed beyond limitation is not a
nullity and remains binding unless set aside by a Superior court. Since the order appointing the
arbitrator has not been challenged before the Supreme Court, it has attained finality and remains
legally valid.

 g. Section 37 of the Act envisages remedy in the form of an appeal for a party aggrieved
by an order accepting a plea that the arbitrator has no jurisdiction but a combined reading of
Sections 16(5) and 16(6) of the Act enunciates that if a plea of lack of jurisdiction is rejected, the
arbitral tribunal must continue with the proceedings and render an award, as the judicial
interference at this stage is barred by Section 5 of the Act.

 h. There are continuing breaches of contractual obligations hence, by virtue of Section 22
of the Act, 1963 the cause of action is continuous and the disputes remain alive.

 i. The respondent has dissolved the partnership firm by notice, thereby, giving rise to
fresh and subsisting disputes requiring adjudication. Post-dissolution, the respondent is entitled to
seek rendition of accounts, examination of financial records, and winding up of the firm through
arbitration. The cause of action for rendition of accounts has arisen during the pendency of
arbitration and is intrinsically connected with the existing disputes.

 j. It is in consonance with the objective of speedy and efficient dispute resolution that all
disputes, including those that have subsequently arisen, be adjudicated by the same arbitral
tribunal.

 k. In view of the statutory bar and scheme of the Act, the present petition challenging the
order passed under Section 16 of the Act is not maintainable.
4 All. Sri Rajendra Prasad Singh Vs. M/S Arch Construction & Ors.
1331
 l. To buttress his arguments, counsel has placed reliance on the following cases:

 (i) S.B.P. & Co. vs Patel Engineering Ltd.8

 (ii) Duro Felguera, S.A. v. Gangavaram Port Ltd.9

 (iii) Ittyavira Mathai v. Varkey Varkey10.

ANALYSIS

4. After hearing the arguments canvassed by the learned counsel appearing on behalf of
both the parties and scrutinizing the materials placed on record, the following issues arises for our
consideration:

 I. Whether the High Court under Article 226 of the Constitution of India exercising its
writ jurisdiction can interfere in the interlocutory order passed by the sole arbitrator under Section
16 of the Act?

 II. Whether the High Court before appointing the arbitrator under Section 11(6) of the
Act is required to adjudicate on the jurisdictional issue of limitation?

 III. Whether the Arbitral Tribunal erred in law by not adjudicating the preliminary
objection as raised by the petitioner relating to its jurisdiction under Section 16 of the Act on the
aspect of limitation of the application filed under Section 11 of the Act before the High Court?

5. The petitioner contends that the impugned order passed by the Arbitral Tribunal is
perverse and illegal as the Tribunal while disposing of the application filed under Section 16 of the
Act observed that the preliminary issue with regard to limitation cannot be adjudicated by the
Tribunal before proceeding with the arbitration proceeding as only the High Court has jurisdiction
to decide on the limitation aspects before appointing the arbitrator and once the High Court has
found the dispute as live and subsisting, has appointed arbitrator in furtherance of it, the issue of
limitation for appointment of arbitrator cannot be further adjudicated upon by the Tribunal.
Moreover, the observation by the Arbitral Tribunal that only the issue of limitation with respect to
the claim is required to be adjudicated by the Tribunal is perverse.

6. Per contra, the learned counsel appearing on behalf of respondents contends that the
order appointing the arbitrator, passed by the High Court under Section 11 of the Act is a final
judicial order by virtue of Section 11(7) of the Act, and the only remedy against such an order lies
before the Supreme Court by way of a Special Leave Petition under Article 136 of the Constitution
of India. The amendment of 2015, merely curtailed the scope of judicial intervention without
altering the judicial nature of the order. Since the said order was never challenged before the
Supreme Court, it has attained finality, operates as res judicata, and cannot be treated as a nullity
merely on account of limitation. The respondent further contends that since Sections 16(5) and
16(6) of the Act mandate that upon rejection of a jurisdictional plea, the Arbitral Tribunal shall
continue with the proceedings and make an award, no judicial interference at this interlocutory
1332 INDIAN LAW REPORTS ALLAHABAD SERIES
stage is permissible under Section 5 of the Act, and the present writ petition is therefore not
maintainable. Additionally, the respondent submits that the disputes are still live and subsisting by
virtue of continuing contractual breaches attracting Section 22 of the Limitation Act, 1963.
Moreover, since that the respondent has dissolved the partnership firm by notice dated December
18, 2025, gives rise to a fresh cause of action for rendition of accounts which has accrued during
the pendency of the arbitration proceedings and which, in the interest of expeditious resolution,
ought also to be adjudicated in the ongoing arbitration proceedings making it neither expedient nor
legally permissible to terminate the pending arbitral proceedings.

7. One may keep in mind the fact that arbitration is one of the methods of alternative
dispute resolution where parties themselves agree to refer their disputes to a neutral third party
known as the arbitrator. The objective of arbitration is to provide speedy, efficient and binding
resolution of disputes that have arisen between the parties with regard to their substantive
obligations. Redfern and Hunter on International Arbitration encapsulated arbitration law
succinctly as it is to be expeditious where the law is slow, cheap where the law is costly, simple
where the law is technical, a pacemaker instead of stirrer-up of strife. Arbitration acts as an elixir
to disputes.

8. The Act was enacted to consolidate and amend the law relating to domestic arbitration,
international commercial arbitration and enforcement of foreign arbitral awards as also to define
the law relating to the conciliation and for matters connected therewith or incidental thereto. It also
brought orchestration to domestic as well as international commercial arbitration with the Model
Law, the New York Convention and the Geneva Convention.

9. The Act replaced the pre-colonial as well as post-colonial laws such as Arbitration Act,
1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition
and Enforcement) Act, 1961. The United Nations Commission on International Trade Law
(UNCITRAL) adopted the Model Law in 1985 to foster the development of a unified legal
framework for fair and efficient settlement of disputes arising in international commercial
arbitration. In pursuance, the General Assembly of the United Nations recommended all states to
give due consideration to the Model Law in view of the desirability of achieving uniformity of the
law in arbitration procedure and the specific needs of International Commercial arbitration practice.

10. The principle of arbitration autonomy is an indelible element of the burgeoning domain
of arbitration law. Arbitral tribunals function in an autonomous way in the sense that they are
constituted to give effect to the mutual intention of the parties to settle their disputes through a
neutral and expert authority of their choice. Section 9 of the Code of Civil Procedure, 1908 bars the
jurisdiction of Court from trying suits of civil nature of which the cognizance is either expressly or
impliedly barred. However, Section 5 of the Act has an overriding effect as it ousts the judicial
intervention in arbitration matters except where it is provided. Section 28 of the Contract Act, 1872
makes an agreement void if it restricts a party to a contract absolutely from enforcing their rights
under or in respect of any contract by way of usual legal proceedings, but exception 1 to Section 28
of the Contract Act, 1872 provides an exception allowing parties to an agreement for enforcing
their rights by way of legal proceeding by referring to arbitration instead of litigating in regular
courts. Furthermore, Section 19 of the Act also liberated the Arbitral Tribunal from the clutches of
4 All. Sri Rajendra Prasad Singh Vs. M/S Arch Construction & Ors.
1333
the procedure laid down in the Code of Civil Procedure Code, 1908 or the Evidence Act, 1872
thereby exhibiting the principle of judicial non interference and autonomy of Arbitral Tribunals.

11. A plethora of decisions have deliberated upon the scope of the intervention of the writ
court with respect to the orders passed by the arbitral tribunal. The principle of minimal judicial
interference denounces the writ court from intervening in the interlocutory order passed by an
Arbitral Tribunal. Section 5 of the Act contains a non-obstante clause mandating that no judicial
authority shall intervene in matters governed by Part I of the Act except where expressly provided.
The Supreme Court in Deep Industries Ltd. v. ONGC11 while dealing with an order of the High
Court against the dismissal of an application filed under Section 16 of the Act by arbitral tribunal
has categorically observed that dismissal of Section 16 application by Tribunal cannot be interfered
with unless there is patent illegality in the inherent jurisdiction exercised by the Tribunal.

12. However, the writ court can interfere with the order passed by the arbitrator under
Section 16 of the Act when the perversity in the order stares on the face. The dictum enunciated
with regard to the aforesaid principles find place in Punjab State Power Corpn. Ltd. v. Emta Coal
Ltd.12 The relevant paragraph of the judgment is delineated below:

 "4. We are of the view that a foray to the writ court from a Section 16 application being
dismissed by the arbitrator can only be if the order passed is so perverse that the only possible
conclusion is that there is a patent lack in inherent jurisdiction. A patent lack of inherent
jurisdiction requires no argument whatsoever it must be the perversity of the order that must
stare one in the face."

13. The Supreme Court in Bhaven Construction (Supra) laid down a two-pronged test for
warranting interference by writ court under Article 226 of the Constitution of India. Firstly, one of
the parties is left remediless under the statute; secondly, a clear bad faith is shown by one of the
parties. The relevant paragraph of the judgment is quoted hereinbelow:

 "18. In any case, the hierarchy in our legal framework, mandates that a legislative
enactment cannot curtail a constitutional right. In Nivedita Sharma v. COAI [Nivedita Sharma v.
COAI, (2011) 14 SCC 337 : (2012) 4 SCC (Civ) 947] , this Court referred to several judgments and
held : (SCC p. 343, para 11)

 "11. We have considered the respective arguments/submissions. There cannot be any
dispute that the power of the High Courts to issue directions, orders or writs including writs in the
nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of
the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary
legislation L. Chandra Kumar v. Union of India [L. Chandra Kumar v. Union of India, (1997) 3
SCC 261 : 1997 SCC (L&S) 577] . However, it is one thing to say that in exercise of the power
vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition
against any order passed by or action taken by the State and/or its agency/instrumentality or any
public authority or order passed by a quasi-judicial body/authority, and it is an altogether different
thing to say that each and every petition filed under Article 226 of the Constitution must be
entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has
1334 INDIAN LAW REPORTS ALLAHABAD SERIES
an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by
law for redressal of grievances, a writ petition should not be entertained ignoring the statutory
dispensation."

(emphasis supplied)

 It is therefore, prudent for a Judge to not exercise discretion to allow judicial interference
beyond the procedure established under the enactment. This power needs to be exercised in
exceptional rarity, wherein one party is left remediless under the statute or a clear bad faith
shown by one of the parties. This high standard set by this Court is in terms of the legislative
intention to make the arbitration fair and efficient.'

14. Drawing from Punjab State Power Corporation Ltd. (Supra) to Bhaven
Construction (Supra) three conditions for warranting interference by writ court may be culled out:
the party challenging the order is completely without remedy under the Arbitration Act; one of the
parties has acted in clear bad faith; the order of tribunal under Section 16 is completely perverse on
its face meaning that the perversity is so manifest and so glaring that it stares the court on the face
and requires immediate intervention to prevent a gross miscarriage of justice.

15. To answer the first issue one may look into the impugned order passed by the Arbitral
Tribunal. The relevant part of the order is extracted hereinbelow:

 ................In the case in hand the respondents are challenging the limitation to file
application under Section 11 of the Act and not the limitation to file claim which is yet to be filed.
The High Court while passing order on the petition under Section 11(6) on 7.12.23, observed that
there are live and subsisting disputes between the parties, which means that the court was satisfied
that the petition under Section 11(6) of the Act, was within time. Thus, there is no occasion for this
tribunal to go into the same issue again. The issue of limitation to file claim, is well within the
jurisdiction of this tribunal but so far as the limitation to file application under Section 11 of the
Act is concerned, the same has become final when the High Court found that there was live and
subsisting dispute between the parties.

 I am therefore of the considered opinion that this tribunal while exercising jurisdiction
under section 16 of the Act, cannot examine as to whether the High Court had jurisdiction under
Section 11 to appoint arbitrator or not. However, this tribunal would be competent enough to see as
to whether the claim referred by the claimants is within time and is maintainable. If this tribunal
comes to the conclusion that the claim is barred by limitation, it would have no jurisdiction to
proceed with the matter, that this can be done only after filing of the claim and objection by the
respondents.

 In the result the application of the respondents for terminating the arbitration proceedings
on the ground of limitation to file application under Section 11 of the Act before the High Court, is
rejected. However, it will be open for the respondents to raise issue of limitation to file claim, when
the same is filed by the claimants."
4 All. Sri Rajendra Prasad Singh Vs. M/S Arch Construction & Ors.
1335
16. As per Section 16 of the Act, the Arbitral Tribunal has power to rule on its own
jurisdiction. Section 16 of the Act is delineated below:

 "Section 16: Competence of arbitral tribunal to rule on its jurisdiction.

 (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any
objections with respect to the existence or validity of the arbitration agreement, and for that
purpose,

 (a) an arbitration clause which forms part of a contract shall be treated as an agreement
independent of the other terms of the contract; and

 (b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso
jure the invalidity of the arbitration clause.

 (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than
the submission of the statement of defence; however, a party shall not be precluded from raising
such a plea merely because that he has appointed, or participated in the appointment of, an
arbitrator.

 (3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised
as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral
proceedings.

 (4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or subsection (3), admit a later plea if it considers the delay justified.

 (5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section
(3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral
proceedings and make an arbitral award.

 (6) A party aggrieved by such an arbitral award may make an application for setting aside
such an arbitral award in accordance with section 34.

17. In the aforesaid order Arbitral Tribunal has abnegated to exercise jurisdiction under
Section 16(2) of the Act on the ground that it does not have jurisdiction to decide with respect to
the issue of limitation for filing application under Section 11(6) of the Act before the High Court on
the reasoning that the above issue of limitation is the sole jurisdiction of the High Court which
cannot be re-visited by the Tribunal.

18. The raison detre of the Tribunal cannot be countenanced in law as the same will make
one of the parties to arbitration remediless as there is no remedy against the rejection order passed
by the arbitrator under Section 16(5) of the Act and the party shall be left with no remedy but to
wait till the passing of the final award and file an application for setting aside of the award under
Section 34 of the Act.
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
19. The doctrine of competence-competence enshrined under Section 16 of the Act
empowers an arbitral tribunal to rule on its own jurisdiction which makes it crystal clear that all the
issues of jurisdiction which includes the issue of deciding its jurisdiction on the ground of
limitation for appointing an arbitrator should be adjudicated upon by the Tribunal and the Tribunal
cannot shrug off from its own jurisdiction merely with the reasoning that once the reference court
has appointed an arbitrator, the jurisdiction of limitation for appointment of arbitrator has already
been adjudicated upon which need not be reagitated during the arbitration proceedings as being
barred by res judicata. One may look into the very recent judgment of the Supreme Court in
Interplay Between Arbitration Agreements under Arbitration Act, 1996 & Stamp Act, 1899,
In re13 wherein the Court has observed that Section 16 of the Act is intended to give effect to the
doctrine of competence-competence. The relevant paragraphs of the judgment are quoted
hereinbelow:

 '130. This position has now undergone a complete metamorphosis in the present
legislation. Section 16 of the Arbitration Act, which is based on Article 16 of the Model Law,
recognises the doctrine of competence-competence in Indian arbitration law.

 131. Section 16 empowers the Arbitral Tribunal to rule on its own jurisdiction, including
ruling on any objections with respect to the existence or validity of arbitration agreement.
Importantly, the parties have a right under Sections 16(2) and 16(3) to challenge the jurisdiction of
the Arbitral Tribunal on grounds such as the non-existence or invalidity of the arbitration
agreement. The Arbitral Tribunal is obligated to decide on the challenge to its jurisdiction, and
where it rejects the challenge, it can proceed with the arbitral proceedings and make an arbitral
award. It is the principle of procedural competence-competence which recognises the power of an
Arbitral Tribunal to hear and decide challenges to its jurisdiction. Once the Arbitral Tribunal makes
an arbitral award, Section 16(6) allows the aggrieved party to make an application for setting aside
the award under Section 34. Sections 16(5) and 16(6) further show that Parliament has completely
ousted the jurisdiction of Courts to interfere during the arbitral proceedings courts can intervene
only after the tribunal has made an award. Thus, Section 16 is intended to give full effect to the
procedural and substantive aspects of the doctrine of competence-competence."

(Emphasis added)

20. Moreover, Section 16(2) of the Act does not preclude a party from raising any
jurisdictional plea merely because he has participated in the appointment of an arbitrator or he
himself has appointed an arbitrator.

21. In our view, the reasoning of the arbitrator that once the High Court had referred the
matter to the arbitrator, the Arbitral Tribunal cannot examine the jurisdictional issue with regard to
application filed under Section 11 of the Act being time barred goes against the settled principles of
law that even if the High Court referred the matter to arbitration, the Arbitral Tribunal under
Section 16 of the Act had the power to decide on its own jurisdiction. The Arbitral Tribunal is the
forum for deciding all issues that the parties may raise including the issues of limitation that may
have not been raised by the parties at the time of order passed by the High Court under Section 11
of the Act. Keeping in mind Section 11(6-A) of the Act that is still operational, the duty of the High
4 All. Sri Rajendra Prasad Singh Vs. M/S Arch Construction & Ors.
1337
Court is restricted to examining the existence and validity of the arbitration agreement and nothing
more. Even if the High Court refers the matter to the Arbitral Tribunal under Section 11 of the Act,
the Tribunal has the power under Section 16 of the Act to hold that there is no valid and subsisting
arbitration agreement. The issue of limitation being a jurisdictional point can be raised at any point.
In the present case the jurisdictional point with regard to limitation vis-a-vis the time barred
application under Section 11(6) of the Act was required to be adjudicated upon by the Tribunal.
The logic of the Tribunal that since the matter has been referred by the High Court, the point of
limitation cannot be re-looked into by the Tribunal is without any basis in law and against the
principle of competence-competence as well as the provisions of Section 16(2) and Section 16(3)
of the Act.

22. Before finally deciding on the issue as to whether the writ court shall have jurisdiction
to intervene in the present matter, one may look into a neoteric position of law as laid down in a
three-judge bench judgment of the Supreme Court in Ajay Madhusudan Patel (Supra) wherein the
Court has meticulously observed the transition brought into effect by the amendment of 2015 with
the addition of Section 11(6-A) of the Act that limits the scope of reference court to decide the
preliminary issue and leaves all issues open to be decided by the Arbitral Tribunal. The relevant
paragraphs of the judgment are quoted hereinbelow:

 "76. The position of law that emerges from the aforesaid discussion can be summarised
as follows:

 76.1.SBP & Co. [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618 : (2005) 128 Comp
Cas 465] expanded the scope of the Court's power under Section 11 while empowering the referral
courts to decide several preliminary issues. Boghara Polyfab [National Insurance Co. Ltd. v.
Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civ) 117] went to the extent of
identifying three categories of preliminary issues that may arise for consideration in an application
under Section 11. Of these, in the first category which had to be mandatorily decided by the referral
court, the question whether there was an arbitration agreement and whether the party who has
applied under Section 11 of the 1996 Act is a party to such an agreement, was also included.

 76.2. The insertion of Section 11(6-A) through the 2015 Amendment to the 1996 Act
stipulated that the courts under Section 11 shall confine their examination to the existence of an
arbitration agreement. It legislatively overruled the decisions in SBP & Co. [SBP & Co. v. Patel
Engg. Ltd., (2005) 8 SCC 618 : (2005) 128 Comp Cas 465] and Boghara Polyfab [National
Insurance Co. Ltd. v.