JUDGMENT :

1. This order will dispose of all the three commercial arbitration petitions.

2. Heard Mr. Kadam, learned Senior Counsel for the petitioner in Commercial Arbitration Petition No.1260 of 2019; Mr. Seksaria, learned Counsel for the petitioner in Commercial Arbitration Petition No.1312 of 2019; Mr. Ghelani, learned counsel for the petitioner in Commercial Arbitration Petition No.1278 of 2019; and Mr. Mehta, learned Senior counsel for respondent No.1 in all the petitions.

3. Since all the three petitions assail the legality and correctness of the common impugned interim award dated 27.08.2019 passed by the learned Arbitrator, those were heard together on 03.12.2019 at the admission stage itself and are being disposed of by this common order.

4. The three arbitration petitions have been filed under Section 34 of the Arbitration and Conciliation Act, 1996 (Arbitration and Conciliation Act hereinafter) contending that the interim award passed by the learned Arbitrator is in conflict with the public policy of India inasmuch as it is in contravention with the fundamental policy of Indian Law.

5. Respondent No.1 as the claimant has instituted arbitration proceeding against the petitioner and others. Claimant, which has been arrayed as respondent No.1 in the present petitions, had entered into Share Subscription Agreement and Share-Holders Agreement, both dated 23.07.2008, with Neelkanth Reality Private Limited (Neelkanth Group hereinafter) for the purpose of investing in a development project proposed to be undertaken by the Neelkanth Group. The two agreements envisaged initial investment of Rs.25 crores by the claimant (respondent No.1 herein).

6. Claimant (respondent No.1 herein) alleged that the Neelkanth Group of which petitioners are Directors had failed to comply with the terms of the two agreements. Therefore, the claimant (respondent No.1 herein) issued letters dated 21.01.2009 and 14.02.2009 to the Neelkanth Group to refund the amount invested with interest.

7. On 19.02.2009, Neelkanth Group informed the claimant (respondent No.1 herein) that there was no question of any amount due to the claimant by way of refund or otherwise.

8. This is the substance of the dispute which led to the related arbitration proceeding.

8.1. Petitioner has filed statement of defence in the arbitration proceeding.

8.2. Learned Arbitrator thereafter framed several issues out of which issue No.1 is relevant which is as follows:

“1. Whether all or any of the claims made by the claimant are barred by the law of limitation?”

9. Petitioner insisted before the learned Arbitrator that issue No.1 should be tried as a preliminary issue. Learned Arbitrator in the proceeding held on 27.08.2019 decided to deal with issue No.1 as a preliminary issue on the basis of demurrer. Thereafter, interim award was passed on the said date i.e. on 27.08.2019, whereby learned Arbitrator held the claims to be within time and answered issue No.1 in the negative.

10. Learned Senior Counsel for the petitioner has argued that while arbitrating on issue No.1, learned Arbitrator decided the same on the basis of demurrer but at the same time foreclosed the issue for further consideration during the trial.

10.1. He submits that claim of the claimant (respondent No.1 herein) is clearly barred under the Indian Limitation Act, 1963 and Section 3(1) of the Limitation Act casts a duty upon the Court/Tribunal to dismiss an application if made after the prescribed period although limitation is not set up as a defence. Therefore, the finding recorded by the learned Arbitrator while answering issue No.1 in the negative on the basis of demurrer foreclosing the said issue is in contravention with the fundamental policy of Indian Law, thereby in conflict with the public policy of India.

10.2. In this connection, learned Senior Counsel has placed reliance on a decision of the Calcutta High Court in Angelo Brothers Limited (In Liquidation) Vs. Bennett, Coleman and Co. Ltd. and another, [2017] 203 Comp