1. This is a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, seeking to set aside an arbitration award passed by the second respondent - Arbitrator.

2. The petitioner opened a trading account with the first respondent and started operations from December 2003. It appears that by the end of 2003-2004, the petitioner was holding huge stocks traded through the first respondent. The account number of the petitioner was SC-1.

3. It was the claim of the petitioner that he was introduced to the first respondent by a sub-broker by name T.K.Srinivasan, to whom, commission used to be paid. But, after the relationship between T.K.Srinivasan and the first respondent got severed, the petitioner started making a claim for bringing down the brokerage structure. At one time, the petitioner claimed that there was an excess brokerage of Rs.7,80,000/-and the petitioner protested on 8.2.2005. Thereafter, the petitioner filed a criminal complaint on the file of the VI Metropolitan Magistrate, Egmore. It appears that the matter was referred under Section 156(3) of the Code of Criminal Procedure.

4. The petitioner stopped trading from 8.2.2005. Thereafter, the petitioner made a claim with the National Stock Exchange and invoked the arbitration clause and the matter was referred to the second respondent for arbitration. Noting that the last trade was made on 8.2.2005, but the claim was made to the concerned Authority in the National Stock Exchange only on 17.10.2006 and that the applicant actually filed an application for arbitration only on 11.5.2007, the Arbitrator passed an award rejecting the claim, on the basis of the limitation prescribed by Bye law (3) of Chapter XI of NSE Bye Laws, by his award dated 5.11.2007. Therefore, the petitioner is before this Court.

5. It must be mentioned here that after the petitioner filed an application on 11.5.2007 for arbitration, the respondent raised the question of limitation. Therefore, the petitioner also filed an application before this Court under Section 43(3) of the Act, seeking extension of time. It was filed on 22.10.2007, but was not pursued.

6. In the above background of facts, the only question that arises for consideration is as to whether the Arbitrator was right in rejecting the claim on the ground of limitation or not.

7. Before I go into the said question, it should be pointed out that according to Mr.K.G.Vasudevan, learned counsel appearing for the first respondent, the arbitration award was not solely on the basis of limitation, but was actually on merits also. Drawing my attention to paragraphs 4.2, 4.3, 4.4 and 4-5, the learned counsel appearing for the first respondent submitted that the whole claim of the petitioner was found to be baseless by the Arbitrator and that in addition, the Arbitrator also rejected the claim on the basis of limitation.

8. But I find that in the last portion of paragraph 4.1 of the award, the Arbitrator has stated "at the outset, the present application for arbitration was barred by limitation." Therefore, I think the observations made from paragraphs 4.2 to 4.5 were only incidental and cannot be considered to be a pronouncement on merits. Moreover, the actual findings of the Arbitrator are recorded only in Chapter V of the award from paragraphs 5.1 to 5.4. Therefore, I do not consider the award to be one on merits.

9. Coming to the question of limitation, it is seen that Bye law (3) of Chapter XI of NSE Bye-laws, as it stood at that time, reads as follows :

"All claims, differences or disputes referred to, shall be submitted to arbitration within six months from the date on which the claim, difference or dispute arose or shall be deemed to have arisen. The time taken in conciliation proceedings, if any, initiated and conducted as per the provisions of the Act and time taken by the Relevant Authority to administratively resolve the claim, differences or disputes shall be excluded for the purpose of determining the period o