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16. N.N.Global principle turns on issues of arbitration agreement between the parties being in the form of a clause/covenant in a contract and a https://www.mhc.tn.gov.in/judis  Arb O.P.(Com. Div.) No.299 of 2021 plea that the agreement is unstamped/ insufficiently stamped and/or not registered though compulsorily registrable. This plea does not arise in the case on hand and therefore, the second facet of Section 11 also does not fall for consideration in the case on hand. Nortel principle is a plea that lis is ex facie barred by limitation which is referred to as 'deadwood' for convenience. This falls for consideration in the case on hand. This in fact is the sole bone of contention in the case on hand as already delineated supra. NCC principle is one where Hon'ble Supreme Court has made it clear that in cases where issues pertaining to lis are very 'clear and glaring' as opposed to issues which are 'debatable, disputable and reasonably arguable', can be looked into in a Section 11 legal drill. This is contained in paragraph No.13 of NCC case law. This NCC case law may really not come into play in the case on hand but it is of relevance qua on the case on hand. To be noted, this facet may not come into play in the case on hand as it turns on ex facie barred by limitation plea.

https://www.mhc.tn.gov.in/judis  Arb O.P.(Com. Div.) No.299 of 2021 '3.6. Upon termination of the 2015 Agreement, Petitioner was required to return Respondent's products immediately in exchange for credit for the outstanding balance due. Conversely, instead of returning the products, as also mandated by the 2015 Agreement, Petitioner continually requested the Respondent to reappoint it as a distributor. The Respondent did not reinstate the Petitioner as a distributor and demanded the Petitioner return the unsold inventory products as per the Clause 9.4(b) of the 2015 Agreement. To Respondent's discontent, Petitioner continued to hold Respondent's unsold inventory illegally for over a year and belatedly returned it on 27 October 2017. The returned inventory was assessed in accordance with Respondent's returns policy and was found in unsaleable condition as it was dirty, damaged and expired. Respondent informed the Petitioner about the poor condition of the inventory and Petitioner acknowledged the same via email on 20 November 2017. Per Respondent's return policy, the unsaleable stock was returned to the Petitioner, and it was concluded that no reimbursement could be issued to the Petitioner for the damaged inventory.' Therefore, in the above context, it appears that COOK has taken back the products, assessed the same and has come to the conclusion that the returned products were in poor condition. This is disputed by RADHA and this is also a dispute which turns on facts. As regards Articles 137 and 55 of Limitation https://www.mhc.tn.gov.in/judis  Arb O.P.(Com. Div.) No.299 of 2021 Act, it is not a case of when right to apply first accrues or when the contract is first broken as it includes continuing breach too. The contention of learned counsel for RADHA that the aforementioned Clause 9.5 of the second agreement is a post termination obligation and that whether this post termination obligation was performed or breached is clearly a mixed question of fact and law. This question in turn will decide the reckoning date for limitation. In this regard Articles 137 and/or 55 of Limitation Act do not talk about 'first accrued' or 'first breached' as in some other Articles of Limitation Act. Therefore, this Court is unable to persuade itself to believe that this is a case where the dispute is 'ex facie barred by limitation'. Some investigation is required to decide whether it is barred by limitation. In this regard, before moving on to NCC case law, this Court deems it appropriate to refer to Nortel principle. In Nortel, the facts were straight, neat and clean. This is captured in Paragraph No.4 of Nortel case law i.e., Bharat Sanchar Nigam Limited and another Vs. Nortel Networks India Private Limited reported in (2021) 5 SCC 738, wherein it is clear that cause of action for invoking arbitration arose on 04.08.2014 when the claim made by Nortel was rejected by making deductions from the final bill but Nortel slept over its alleged rights for 5½ years before issuing notice of arbitration on 29.04.2020. This https://www.mhc.tn.gov.in/judis  Arb O.P.(Com. Div.) No.299 of 2021 was the case where Nortel did not take action from 04.08.2014 till 29.04.2020 and this factum is clear as daylight unlike the case on hand.

1972 AC 877 (HL) [Sub nom British Railways Board v. Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.'

22. Aforementioned paragraph No.9 is not only elucidative, it is instructive. To be noted as Padma Sundara Rao has been rendered by a Hon'ble Constitution Bench, the ratio gets elevated to the status of declaration of law. If Nortel principle is read in the context of Padma Sundara Rao principle, it emerges without any doubt that the facts are distinguishable qua case on hand as the dates are telltale in Nortel. In other words, the dates are so telltale that they are clear as daylight in Nortel, whereas it is debatable or disputable in the case on hand. This Court deems it appropriate to extract Paragraph No.13 of NCC case :

arbitrable and/or it falls within the excepted clause. Even at the stage of deciding Section 11 application, the Court may prima facie consider even the aspect with regard to 'accord and satisfaction' of the claims.' Paragraph No.13 of NCC case law will make it clear that the exercise of going into merits will arise only in cases where the issues and facts are 'clear and glaring' i.e., beyond a speck of doubt. As regards to disputed, debatable and arguable cases, this Court also notices that Hon'ble Supreme Court in Nortel case itself vide paragraph No.53.2, has made it clear that it would apply in rare and exceptional cases where the claims are ex facie time barred and it is manifest that there is no substituting dispute.