The main legal point established in the judgment is that the 'order of the court' referred to in Section 43(4) of the Arbitration and Conciliation Act, 1996 includes the final order of the court, whether the first order setting aside the award or the order in appeal affirming such setting aside. The principle of merger was emphasized to support this interpretation.

JUDGMENT

S C Gupte, J. - This Notice of Motion has been taken out by original Defendant No.1 for a summary judgment of dismissal of the Commercial Suit under Order XIII-A of the amended Civil Procedure Code, 1908 on the ground of bar of limitation.

2. The motion raises an important question concerning interpretation of sub-section (4) of Section 43 of the Arbitration and Conciliation Act, 1996 ("Act"), which provides for exclusion of the period between the commencement of arbitration and the date of the order of the court setting aside an arbitral award, for computing limitation period for commencement of proceedings (including arbitration) with respect to the dispute submitted to arbitration. According to the Applicant/Defendant, the expression "the order of the court" in Section 43(4) implies the first order of the original or the appellate court, as the case may be, setting aside the arbitral award, whereas, according to the Respondent/Plaintiff, it is the final order in a challenge petition setting aside an arbitral award or confirming such setting aside of the award, as the case may be.

3. The facts of the case, so far as they are relevant for the purpose of deciding this controversy, may be briefly stated as follows :

The Commercial Suit is for specific performance of an agreement for sale between the parties. The agreement, termed as 'Master Asset Purchase Agreement', was executed on 31 March 2005 ('MAPA'). The MAPA was for sale of the suit property, which consisted of (i) a hotel property, both land and structure, by the name of 'Tulip Star Hotel' (formerly known as 'Centaur Hotel') at Juhu in Mumbai, (ii) eleven flats described in the Schedule to MAPA and (iii) movables including plant and machinery, fittings and fixtures described in MAPA, by Defendant No.1 to the Plaintiff. It is common ground that by a notice dated 6 October 2005, termed as an arbitration notice, addressed by Defendant No.1 to the Plaintiff, the former inter alia claimed that the MAPA had stood frustrated or become impossible of performance and the former had stood discharged from fulfilling its obligations to the latter thereunder. It is this notice, which has given rise to the cause of action for filing of the present Commercial Suit. Before filing of the present suit, in pursuance of an arbitration application filed by the Defendants under Section 11 of the Act, the disputes between the parties were referred by the Court to arbitration by a sole arbitrator. The arbitrator had before him the claim of Defendant No.1 herein, and the written statement and Counter Claim of the Plaintiff herein, for adjudication. On 13 July 2011, the arbitrator passed an award in favour of Defendant No.1, holding that the MAPA had stood frustrated on account of its repudiation by the Plaintiff and acceptance of such repudiation by Defendant No.1. The learned arbitrator in his award also dismissed the counter claim of the Plaintiff. The Plaintiff challenged the award before this court, who, by its order dated 10 May 2013, set aside the same. As a result, by its notice dated 4 July 2013, the Plaintiff invoked a de novo arbitration. Defendant No.1, for its part, filed an appeal on 6 July 2013 challenging the order of 10 May 2013 setting aside the award. This appeal has been admitted by a Division Bench of this court and is presently pending hearing and final disposal. Pending this appeal, the Plaintiff proceeded to file an application for appointment of arbitrator for such de novo arbitration. That application, however, came to be withdrawn by the Plaintiff on 17 September 2014, with liberty to file a fresh application, if so advised. In the backdrop of these facts, on 12 February 2016, the Plaintiff filed the present Commercial Suit.

4. It is the case of the Applicant (Defendant No.1) that the suit is barred by the law of limitation. It is submitted that the Plaintiff is entitled, under Section 43 (4) of the Act, to merely exclude the period between 30 September 2006 (i.e.