Arbitration: Arbitration proceedings – Determination as regards applicability of Arbitration Acts viz. Arbitration Act, 1940 or Arbitration and Conciliation Act, 1996 – Held: For the purpose of deciding as to which of the Acts is applicable, on conjoint reading of ss.21 and 85(2)(a) of 1996 Act, the date of commencement of arbitration proceedings shall be the date on which notice was served on the other party requesting appointment of arbitrator – If the date of notice was prior to 25.1.1996 (i.e. the date on which 1996 Act came into force) 1940 Act would apply and if the date of notice was on 25.1.1996 or after that, 1996 would apply – Arbitration and Conciliation Act, 1996 – ss.21 and 85(2)(a) – Arbitration Act, 1940. Arbitration and Conciliation Act, 1996: s.43(3) – Limitation – Limitation period for reference of dispute to arbitration or for seeking appointment of an arbitrator before a Court is three years from the date on which course of action or the claim which is sought to be arbitrated, first arises – On certain sets of facts and circumstances, the period during which the parties were bonafide negotiating towards an amicable settlement may be excluded for the purpose of computing the period of limitation – However, in such cases, entire negotiation history must be specifically pleaded and placed on record – In commercial disputes, failure to respond to the claim has to be treated as denial of claim giving rise to dispute and hence cause of action for reference to arbitration – Mere correspondence subsequent to this date of cause of action would not extend the time of limitation – In the facts of the present case, application for reference of the dispute to the Arbitrator is barred by limitation – Rather, appellant company’s case has certain element of mala fide as it has remained silent on specific actions taken to recover the dues during certain period – Under s.114(g) of Evidence Act, the Court can presume that evidence which would be and was not produced, would, if produced be unfavourable to the person who withholds it – Appellant’s own fault in sleeping over his right for 14 years will not constitute a case of ‘undue hardship’ justifying extention of time u/s.43(3) – Limitation Act, 1963 – First Schedule, Art.137 – Limitation.