53.IA.1612.2026.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION INTERIM APPLICATION NO.1612 OF 2026 IN ARBITRATION PETITION NO.260 OF 2025 Palm Tree Development Pvt. Ltd. & Anr. ….Applicants IN THE MATTER BETWEEN: Nimit Tapan Ghoshal Thr. its Power of Attorney Holder Mr. Amit Tapan Ghoshal & Ors. ….Petitioners Versus Palm Tree Development Pvt. Ltd. & Ors. ....Respondents Mr. Ghanshyam Upadhyay i/b. Law Juris, for Petitioner. Mr. Nimit Tapan Goshal a/w. Abhishek Kothari & Monish Jain i/b. MJ & Partners, for Respondents. CORAM: SOMASEKHAR SUNDARESAN, J. DATE : JULY 13, 2026 ORDER : 1. This Interim Application has been filed seeking recall of an Order dated December 9, 2025 (“Impugned Order”) passed under Section 11 of the Arbitration and Conciliation Act, 1996 (“the Act”) appointing an Arbitrator. 2. The existence of the arbitration agreement is not denied. However, the core grievance of the Learned Advocate for the Applicants is that the JULY 13, 2026 Aarti Palkar 53.IA.1612.2026.doc Applicants never had an opportunity to present their view before the Section 11 Court and only learnt about the Section 11 proceedings and the Arbitral Tribunal appointed therein, when the Applicants received emails dated December 18, 2025 and December 19, 2025, nearly 10 days after the Impugned Order appointing the Arbitrator had been passed. That email had been served to correct an error in the address of the Arbitral Tribunal that was recorded in the Impugned Order passed on December 9, 2025. 3. Learned Advocate for the Applicant primarily relies on the Supreme Court’s judgement in Arif Azim1 and in particular Paragraph 92 which reads thus:- “92.Thus, from an exhaustive analysis of the position of law on the issues, we are of the view that while considering the issue of limitation in relation to a petition under Section 11(6) of the 1996 Act, the Courts should satisfy themselves on two aspects by employing a two-pronged test — first, whether the petition under Section 11(6) of the 1996 Act is barred by limitation; and secondly, 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. 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.” [Emphasis supplied] 1 Arif Azim Co. Ltd. v. Aptech Ltd. – (2024) 5 SCC 313 JULY 13, 2026 Aarti Palkar 53.IA.1612.2026.doc 4. Learned Advocate for the Respondents tendered across the bar, acknowledgments from India Post which indicate that the attempts to serve the Applicants had indeed been made and the notice issued to the Applicants remained “unclaimed” by the Applicants and that this is the same as refusal of service and is consequently, effective service. Learned Advocate would further submit that Respondent No.3, Mr. Manoj Goenka, who is the third addressee in the notice of service dated September 16, 2025, has indeed been served and is in fact participating in the arbitration and it would stand to reason that Addressee No.1, who is the current Applicant No.1, Palm Tree Developments Pvt. Ltd. (“Palm Tree”), had notice of the Section 11 Application having been filed, particularly considering that Addressee No. 3 was a Director of Palm Tree. 5. Learned Advocate for Addressee No. 3 submits that he is no longer a Director of Palm Tree and therefore, there was no obligation on his part to intimate the Applicants about the receipt of such notice. 6. From the materials tendered across the bar on behalf of the Respondents, it is apparent that Addressee No.2, who is Applicant No.2 in the captioned Interim Application, had shifted to a different address and had not been served, but the Applicant No. 1 was indeed served on the address in the official record, and this was unclaimed. That apart, Mr. Manoj Goenka was indeed, for the period relevant to the dispute, been a director and it would JULY 13, 2026 Aarti Palkar 53.IA.1612.2026.doc stand to reason that a company refusing service and thereby deemed served cannot claim that it was totally unaware of the Section 11 proceedings. 7. That apart, Learned Advocate for the Applicants indicates that while the Section 11 Application may have been filed within three years of the invocation notice, the claim itself is hopelessly barred by limitation. The Applicants’ primary grievance is that this Court did not have an opportunity to examine that the claim being pursued is an entirely dead claim. However, the Applicants state that they would not be able to show from the face of the record that the claim is a dead claim, and instead, they desire to put in a reply to the Section 11 Application in order to demonstrate that the claim is dead. 8. I am afraid this approach is not acceptable. The level of scrutiny by the Section 11 Court is abundantly clear from multiple judgements of the Supreme Court before and after Arif Azim, which is the pivotal point in the minds of the Applicants. A plain reading of Paragraph 92 of Arif Azim makes it clear that the two-pronged test referred to, primarily relates to examining whether the filing of a Section 11 Application is within a period of three years from the expiry of 30 days of receipt of the invocation notice and whether the claim is hopelessly time-barred and stale. The reference to “whether the claims sought to be arbitrated are ex-facie dead claims” in Arif Azim relates to claims that are ex facie time-barred. Since the Applicants are unable to show how the claim is time-barred from the face of the record and instead want this. Court to embark JULY 13, 2026 Aarti Palkar 53.IA.1612.2026.doc upon an exercise of permitting a reply after having refused service, it is clear that the intention is to draw the Section 11 Court back into the domain that the Supreme Court has expressly and clearly prohibited. 9. For the claim to qualify as a dead claim and still fall within the scope of review of the Section 11 Court, the claim should be ex facie dead i.e. on the face of the record it should be possible to demonstrate that it is a dead claim. Even this scope of review has been further clarified by the Supreme Court in subsequent judgements as seen in Patel v. Patel2 and most recently in the case of Bihar Rajya Pul Nirman3 where the Supreme Court has explicitly said that the curtains have fallen in this regard and Section 11 Court must have the discipline to not be drawn into considering evidence about the limitation of the cause of action and must focus solely on the limitation for the filing of the Section 11 Application. 10. 10. In these circumstances, having heard the parties and examining the material presented before me, for the aforesaid reasons, the Interim Application is without merit and is hereby dismissed. 11. At this stage, the Learned Advocate for the Applicants requests that a direction be issued to the Learned Arbitral Tribunal to permit pleadings by the Applicants in the arbitration. I am afraid it would not be appropriate for this 2 Ajay Madhusudan Patel v. Jyotindra S. Patel – 2024 SCC OnLine 2597 3 Hindustan Construction Co. Ltd. v. Bihar Rajya Pul Nirman Nigam Ltd. – (2026) 3 SCC 264 . Page 5 of 6 JULY 13, 2026 Aarti Palkar 53.IA.1612.2026.doc Court to issue directions to the Learned Arbitral Tribunal on how to conduct arbitration. If the Applicants approach the Learned Arbitral Tribunal and make the request, it goes without saying that the Learned Arbitral Tribunal can be trusted to deal with such request in accordance with law, assessing the request on its own merits. It is not for this Court to get into this issue in a review jurisdiction. 12. All actions required to be taken pursuant to this order shall be taken upon receipt of a downloaded copy as available on this Court’s website. [ SOMASEKHAR SUNDARESAN, J.] JULY 13, 2026 Aarti Palkar