OCD- 11 ORDER SHEET IN THE HIGH COURT AT CALCUTTA COMMERCIAL DIVISION ORIGINAL SIDE AP-COM/383/2026 CHHANDA SARKAR AND ANOTHER VS LUMIERE REALITY INNOVATIONS PVT LTD BEFORE: The Hon’ble JUSTICE GAURANG KANTH Date :31st July, 2026. Appearance: Mr. Aniket Nanda, Adv. Mr. Chandrangshu Ghosh, Adv. …for petitioners. Mr. Jayanta Sengupta, Adv. Mrs. Shebate Datta, Adv. Mr. Satwik Beriwala, Adv. …for respondent. The Court: The petitioner has preferred the present petition under Section 11 of the Arbitration and Conciliation Act, 1996, seeking appointment of an Arbitral Tribunal for adjudication of the disputes and differences which have arisen between the parties in connection with and arising out of the Development Agreement dated 5th August, 2012. It is the case of the petitioner that the parties had entered into a Registered Development Agreement dated 05.08.2012 in respect of premises 2 measuring 3 cottahs, 7 chittack and 25 square feet, more or less, situate and lying at and being Municipal Premises No.209, Madurdah, Kolkata – 700107, Police Station- Tiljala, within Ward No.108 of the Kolkata Municipal Corporation, District- South 24 Parganas. Clause 30 of the said agreement contains an arbitration agreement providing that all disputes arising out of and in connection with the said agreement shall be resolved by arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996, with Kolkata being the seat of arbitration. Learned counsel for the petitioner submits that disputes and differences have arisen between the parties in relation to the said Development Agreement. He further states that the respondent had earlier instituted Title Suit No.720 of 2018 before the learned 4th Civil Judge, Senior Division, Alipore seeking specific performance of the development agreement. The petitioner had filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 being Miscellaneous Case No.125 of 2018. By an order dated 04.01.2025, the learned Civil Court allowed the said application and referred the parties to arbitration in terms of the arbitration agreement contained in Clause 30 of the Development Agreement dated 05.08.2012. Learned counsel for the petitioner submits that pursuant to the said order, he issued a notice under Section 21 on 16.03.2026 and nominated Mr. Arindam Kundu as its nominee arbitrator. The respondent,by its reply dated 21.04.2026 declined to concur with the said nomination and inter alia, raised 3 objection on the ground of limitation. Consequently, the parties failed to arrive at a consensus regarding the constitution of the arbitral tribunal. Learned counsel for the respondent states that the present petition relates to a deadwood claim since the petitioner had not issued notice under Section 21 of the Act within the prescribed period of limitation. He further states that the claim having become a deadwood claim, no arbitral proceedings can be conducted. Heard learned counsel for both the parties and perused the materials on record. The existence of the arbitration agreement contained in clause 30 of the development agreement dated 05.08.2012 is not in dispute. It also appears that the agreement has been invoked by issuing notice dated 16.03.2026 under Section 21 of the said Act. The parties have admittedly failed to arrive at a consensus regarding the constitution of an arbitral tribunal. The objection raised by the respondent on the issue of limitation and that the present arbitral proceeding is a deadwood claim pertains to the merit and maintainability of the claim. The said issues are left open to be decided by the arbitral tribunal in accordance with law. As per section 11(6A) of the Act ‘the Supreme Court or as the case may be, the High Court, while considering any application under sub-section (4) or sub- section (5) or sub-section (6), shall notwithstanding any judgment decree or order of any court, confine itself to the examination of the existence of an arbitration agreement’. 4 It is now well settled principle of law that the jurisdiction of the court under section 11 of the Arbitration and Conciliation Act, 1996 is confined to a prima facie examination of the existence and validity of the arbitration agreement. Accordingly, at the stage of exercising jurisdiction under Section 11 of this Act, this Court is only required to examine the existence of a valid arbitration agreement containing an arbitration clause. In view of the same, this Court is, therefore, satisfied that the requirements under Section 11(6) of the Act stand fulfilled and that the disputes between the parties are fit to be referred to arbitration. The learned counsel for both the parties consented for the appointment of a sole arbitrator to adjudicate the disputes between the parties. In view there of, this Court deems it appropriate to appoint Mr. Rupak Ghosh, Advocate (Mob. No. 9830232279) as a sole arbitrator to adjudicate the disputes between the parties. The learned Sole Arbitrator shall, before entering upon the reference, make the disclosure required under Section 12(1) of the Act, subject to the provisions of Section 12(5) thereof. The learned Sole Arbitrator shall fix his remuneration in terms of the Fourth Schedule of the Act or as may be agreed between the parties. A copy of this order shall be communicated by the petitioner to the learned sole Arbitrator for necessary action. 5 It is clarified that all questions relating to the arbitrability of the disputes, the admissibility of the claims, limitation, jurisdiction, and all other issues are left open to be urged before the learned arbitrator, who shall decide the same in accordance with law. With the aforesaid directions, the present petition stands disposed of. (GAURANG KANTH, J.) R.D. Barua