The arbitration application under Section 11(6) was not barred by limitation as it was filed within three years from the date of notice invoking arbitration, factoring delays linked to the Covid-19 extension.

JUDGMENT & ORDER :

SANJAY KUMAR MEDHI, J.

The instant petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (Act) for appointment of an Arbitrator.

2. I have heard Shri Abhinav Prakash, learned counsel for the petitioner appearing online. I have also heard Ms. G. Ete, learned State Counsel, A.P. as well as Shri G. Tarak, learned counsel for the respondent no. 2.

3. Shri Prakash, learned counsel for the petitioner has submitted that though the connected work had started in November, 2011, due to certain factors beyond the control of the petitioner, the same could not be executed. He has drawn the attention of this Court to a communication dated 26.06.2017 issued by the respondent no. 1 demanding refund of a huge amount which was replied to by the petitioner. Reference has also been made to a communication dated 26.12.2017 whereby, a request was made for adjudication of the dispute through arbitration which was a part of the Agreement dated 17.02.2010. He has added that if the notice seeking arbitration is taken to be the date from which the limitation would apply, the limitation would be there till 25.12.2020. However, in between there was the intervention of Covid 19 and the Hon’ble Supreme Court in Suo Moto WP(C)/3/2020 had extended the limitation up-to 01.03.2022 with additional 90 days. He has submitted that the present application was presented on 31.03.2022 which is within the period of limitation. The learned counsel has relied upon the case of Arif Azim Company Ltd. Vs. Aptech Ltd. , reported in (2024) 5 SCC 313 and the following observations made by the Hon’ble Supreme Court are pressed into service:

“46. The plain reading of Section 11(6) of the 1996 Act, which provides for the appointment of arbitrators, indicates that no time-limit has been prescribed for filing an application under the said section. However, Section 43 of the 1996 Act provides that the Limitation Act, 1963 would apply to arbitrations as it applies to proceedings in court. The aforesaid section is reproduced hereinbelow:

‘43. Limitations.—(1) The Limitation Act, 1963 (36 of 1963), shall apply to arbitrations as it applies to proceedings in court.

(2) For the purposes of this section and the Limitation Act, 1963 (36 of 1963), an arbitration shall be deemed to have commenced on the date referred to in Section 21.

(3) Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper.

(4) Where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (36 of 1963), for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted.’

53. It has been held in a catena of decisions of this Court that the limitation period for making an application seeking appointment of arbitrator must not be conflated or confused with the limitation period for raising the substantive claims which are sought to be referred to an Arbitral Tribunal. The limitation period for filin