Exclusion of period from 15.03.2020 to 28.02.2022 under Supreme Court order dated 10.01.2022 results in enlargement of limitation period.

OMP (T) COMM. 31/2023

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment pronounced on: 20.12.2023

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OMP (T) COMM. 31/2023

CAPTAIN SUDHANSHU BHARDWAJ

.....Petitioner

Through:

Mr. Abinav Sharma and Ms. Avsi

Malik, Advs .

versus

AIR INDIA LIMITED ..... Respondent

Through:

Mr. Rajesh Ranjan, Mr. Pratyush

Singh, Mr. Attin Shankar Rastogi,

Mr. Shiv Kant Arora, Mr. Aman

Kapoor and Mr. Adil Vasudeva,

Advs.

CORAM:

HON'BLE MR. JUSTICE SACHIN DATTA

JUDGMENT

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.

OMP (T) COMM. 31/2023

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

Digitally Signed

By:KAMLA RAWAT

Signing Date:21.12.2023

19:34:07

Signature Not Verified

OMP (T) COMM. 31/2023

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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

Digitally Signed

By:KAMLA RAWAT

Signing Date:21.12.2023

19:34:07

Signature Not Verified

OMP (T) COMM. 31/2023

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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