The right to sue accrues on receipt of termination notice, and discussions held do not extend limitation under arbitration or contract claims.

ORDER:

SANDEEP V. MARNE, J.

1. By this Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (Arbitration Act), Petitioner challenges Award dated 1 November 2022 passed by the learned sole Arbitrator. By the Impugned Award, the learned Arbitrator has dismissed the claims of the Petitioner as barred by limitation.

2. Petitioner is a Developer. Respondent is a cooperative housing society (Respondent-Society) formed by employees of Municipal Corporation of Greater Mumbai (MCGM). Respondent-Society is seized and possessed of plots of land bearing Nos.9, 10, 11 and 15 admeasuring 5634 square meters of thereabouts at Sector-II, Deonar Municipal layout bearing Survey No.93, CTS No.1/3, village Deonar, Mumbai Suburban District (the land). The land is leased by MCGM in favor of Respondent-Society for a period of 60 years. In the year 1987 Respondent-Society constructed a building on the land comprising of Ground plus two upper floors having five wings. The plots in the building are occupied by members of the Respondent-Society who are employees of MCGM. In the year 2007 Respondent-Society decided to redevelop its building. Accordingly, Development Agreement and Power of Attorney dated 11 August 2007 was executed between the Petitioner and the Respondent-Society.

3. It appears that construction activity in accordance with the Development Agreement could not be completed. The Respondent- Society terminated the Development Agreement and Power of Attorney vide letter dated 31 August 2015.

4. The Petitioner replied the termination notice on 15 September 2015. According to the Petitioner, certain committee members of the Respondent-Society approached MCGM for cancellation of the Intimation of Disapproval (IOD) and Commencement Certificate (CC). According to the Petitioner, meetings took place with the MCGM officials with a view to resolve the disputes. In the above background, Petitioner invoked arbitration by letter dated 1 October 2018. Petitioner filed Arbitration Application No.219 of 2019 in which the learned sole Arbitrator was appointed.

5. Petitioner filed Statement-of-Claim. Respondent-Society filed Statement-of-Defence as well as Counterclaim. Respondent-Society also filed Application dated 24 October 2020 seeking dismissal of the Petitioner’s claim as being barred by limitation. It appears that Petitioner filed application for dismissal of Respondent-Society’s Counterclaim as barred by limitation. Both the applications have been decided by the learned Arbitrator vide impugned Award dated 1 November 2022. The learned Arbitrator has dismissed the claims of the Petitioner as being barred by limitation by allowing the application preferred by Respondent-Society. The Respondent-Society did not press the counterclaim against Petitioner and accordingly, the counterclaim of the Respondent-Society is also dismissed. Petitioner is aggrieved by the Award dated 1 November 2022 and has filed the present Petition under Section 34 of the Arbitration Act.

6. Mr Khandeparkar, the learned senior advocate appearing for the Petitioner-Developer has submitted that the learned Arbitrator has grossly erred in deciding the issue of limitation by way of interim Award without letting parties to lead evidence. That issue of limitation is only on question of law and fact, and could not have been decided merely on the basis of pleadings. He would submit that it is a specific case of the Petitioner-Developer that the issue