JUDGMENT

OMP (T) COMM. 31/2023

1. The present petition has been filed under Section 14 (1) read with Section 15 (2) and Section 11 (5) of Arbitration and Conciliation Act, 1996 (the ‘A&C Act’) seeking appointment of a substitute arbitrator.

2. Briefly stated, the facts are that the erstwhile arbitrator withdrew from the arbitration vide order dated 14.05.2018. The present petition has come to be filed on 13.04.2023.

3. The only objection taken by the respondent is that the present petition is barred by limitation.

4. It is the common case of both the parties that the limitation period for filing a petition under the aforementioned sections is three years and therefore, the limitation period for filing the present petition would have ordinarily expired on 13.05.2021.

5. The petitioner’s case is that by virtue of the order/s passed by the Supreme Court in Suo Moto Writ Petition (Civil) No.3/2020, the period from 15.03.2020 till 28.02.2022 is to be excluded for the purpose of calculating limitation and as such, the limitation for filing the present petition would have expired on 01.05.2023. Thus, the present petition is within the period of limitation.

6. Learned counsel for the petitioner has submitted that both on a literal and purposive reading of the order dated 10.01.2022 passed in Suo Moto Writ Petition (Civil) No.3/2020, it is evident that the limitation clock stopped ticking for the petitioner from 15.03.2020 till 28.02.2022. It is submitted that on 15.03.2022, the petitioner had a balance period of 426 days remaining for the purpose of limitation, which period became available to the petitioner with effect from 01.03.2022. It is submitted that the said order dated 10.01.2022 has used the word ‘excluded’, as such, the excluded period would result in enlargement of time, over and above the prescribed period as held by the Supreme Court in Prakash Corporate v.

Dee Vee Projects Limited, (2022) 5 SCC 112.

7. Per contra, learned counsel for the respondent has submitted that a reading of the order dated 10.01.2022 leads to an inevitable conclusion that the limitation period for filing the present petition would have expired on 01.06.2022. It is submitted that the petitioner’s case is covered by para 5 (II) & (III) of the order dated 10.01.2022, which governs the cases where the limitation has begun to run prior to 15.03.2020. It is submitted that the limitation period for filing the present petition would have expired on

15.04.2021, therefore, the balance period of limitation remaining on 03.10.2021, as contemplated in para 5 (II) of the order dated 10.01.2022, is nil. Therefore, the petitioner is entitled to a limitation period of 90 days from 01.03.2022 as contemplated in para 5 (III) of the order dated 10.01.2022. As such, the limitation period for filing the present petition would have expired on 01.06.2022. It is submitted that if the argument of the petitioner is accepted that the period between 15.03.2020 to 28.02.2022 is not to be counted at all, then clause 5 (III) will become redundant as no limitation period would expire between 15.03.2020 to 28.02.2022. It is submitted that the order dated 10.01.2022 passed by the Supreme Court contemplates two eventualities:- (i) that 90 days from 28.03.2022 will be made available to all the litigants whose limitation has expired between 15.03.2020 to 28.02.2022; (ii) if balance period of limitation as on 03.10.2021 is more than 90 days than the higher period will be available to the parties reckoned from 01.03.2022. It is submitted that the judgment of Prakash Corporate (supra) is clearly not applicable to the facts of the present case inasmuch as the said was governed by para 5 (I) of the order dated 10.01.2022 whereas the present petition is governed by para 5 (II)

and (III) of the order dated 10.01.2022.

Analysis and Conclusion

8. I having heard the learned counsel for the parties and having perused the record, I find no merit in the contention raised by the respondent.

9. Para 5 of the or