IMPORTANT POINT
In absence of specific provision for limitation, Article 137 of Limitation Act, 1908 applies.

JUDGMENT

R.M. Lodha, J.

1. The present appeal by special leave arises from the order dated February 4, 2005 passed by the Delhi High Court whereby the Single Judge of that court allowed the petition filed by the present Respondent No. 1 Under Sections 5, 11 and 12 of the Arbitration Act, 1940 (for short "the 1940 Act") and appointed a former Judge of that Court Justice Usha Mehra (retired) as a sole arbitrator to decide the disputes between the Appellant and Respondent No. 1.

2. Bereft of unnecessary details, suffice it to notice for the purposes of the present appeal that by a Charter Party dated October 14, 1987, the Respondent No. 1 let its vessel 'MV Ocean Knight' to the Appellant for carriage of a cargo of Rock Phosphate in bulk. The disputes arose between the parties in respect of demurrage charges. Clause 56 of the Charter Party which contains arbitration clause, reads as follows:

Clause 56: All disputes arising under this Charter shall be settled in India in accordance with the provisions of the Arbitration Act, 1940 in India, each party appointing an Arbitrator from out of the panel of Arbitrators maintained by the Indian Council of Arbitration, New Delhi and the two Arbitrators appointing an Umpire whose decision, in the event of disagreement between the Arbitrators, shall be final and binding upon both parties hereto. The Arbitrators and the Umpire shall be commercial men.

3. The Respondent No. 1 invoked the above arbitration clause and vide its letter dated May 30, 1989 communicated the appointment of Shri K.P. Patel (Respondent No. 2) as its arbitrator.

4. On August 14, 1989, the Appellant appointed Captain D.K. Verma (Respondent No. 3) as its arbitrator.

5. The above arbitrators jointly appointed Shri R.S. Cooper as the Umpire.

6. On October 13, 1989, the Respondent No. 1 filed a statement of claim claiming US$ 1,12,136.28 along with interest @ 18% p.a. The Appellant traversed the claim of Respondent No. 1 and raised diverse pleas in opposition thereto.

7. The two arbitrators concluded the hearing on May 12, 1992. It appears that the draft of the award was prepared by one of the arbitrators and sent to the other but for want of consensus, the award could not be given by them. It is an admitted position that the time for giving the award by the arbitrators was up to March 31, 1993. The fact, therefore, is that the arbitrators became functus officio w.e.f. April 1, 1993.

8. On July 3, 1999, the Respondent No. 1 filed a Petition (application) Under Sections 5, 11 and 12 of the 1940 Act seeking removal of Respondent No. 3- Captain D.K. Verma as co-arbitrator and for declaration that Respondent No. 2 - K.P. Patel was the sole arbitrator for deciding the disputes between the Appellant and Respondent No. 1 and in the alternative revoking the authority of Respondent No. 3 as co-arbitrator and for appointment of a new arbitrator in his place.

9. The Appellant contested the above petition filed by the Respondent No. 1 by filing an affidavit-in-reply. Inter alia an objection was raised by the Appellant that the petition was beyond the prescribed period of limitation and, was liable to be dismissed on that ground alone.

10. On November 26, 2001, the petition filed by the Respondent No. 1 was dismissed in default but later on, it was restored.

11. By the impugned order, the Single Judge revoked the authority of both the arbitrators and appointed a former Judge of that Court Justice Usha Mehra (retired) as the sole arbitrator.

12. Despite service of notice, the Respondent No. 1 has not chosen to appear.

13. We have heard Mr. Jay Savla, Learned Counsel for the Appellant.

14. The sole question that requires consideration by us is whether the application Under Sections 5, 11 and 12 of the 1940 Act filed on July 3, 1999 by the Respondent No. 1 was within limitation.

15. Section 37 of the 1940 Act makes the provisions of Limitation Act, 1963 (for short " the Limitation Act") applicable to the arbitrations. It reads as follows:

37. Limitations.

(1) Al