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* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 21^st February 2024 + O.M.P.(COMM) 215/2022, I.A. 6868/2022, I.A. 6870/2022, I.A.

6871/2022 NATIONAL BUILDING CONSTRUCTION CORPORATION LTD.

..... Petitioner Through: Mr. Jay Savla, Senior Advocate with Ms. Shilpi Chowdhary, Advocate.

versus M/S SHARMA ENTERPRISES ..... Respondent Through: Ms. Anusuya Salwan, Advocate.

HON’BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

J U D G M E N T

ANUP JAIRAM BHAMBHANI J.

I.A 6869/2022 By way of the present application under section 14 of the Limitation Act, 1963 the petitioner/National Building Construction Corporation („NBCC‟) seeks exclusion of 1995 days‟ for purposes of from the time permissible for filing the petition under section 34 of the Arbitration & Conciliation Act, 1996. The exclusion of 1995 days‟ is sought for the period from 28.07.2016 to 15.12.2021, as discussed hereinafter.

2. Though no formal notice has been issued on the present application, this court has heard Mr. Jay Savla, learned senior counsel for NBCC Signature Not Verified and Ms. Anusuya Salwan, learned counsel appearing for M/s Sharma Enterprises („Sharma Enterprises‟) at length.

3. The parties have also filed written synopses of their arguments in support of the oral submissions made.

4. The matter has an excruciating long and winding history, having seen the appointment of 05 different persons as Arbitrators to adjudicate upon the disputes between the parties, with the added head-winds of whether the arbitral proceedings were to be governed by the provisions of the Arbitration Act, 1940 („1940 Act‟) or the Arbitration & Conciliation Act, 1996 („1996 Act‟).

5. Clearly, the matter brooks no delay; and it is therefore, the endeavour of this court to decide the present application delving only into the relevant factual narrative, which goes as follows :

5.1. Sharma Enterprises was awarded the work of flooring and cladding at the Vashi Railway Station, New Bombay vide a Work Order dated 11.01.1991 („Work Order‟), which stipulated the date of completion as 10.01.1993.

5.2. Disputes having arisen between the parties from the Work Order, NBCC terminated the contract awarded to Sharma Enterprises vide termination letter dated 22.09.1992, which led Sharma Enterprises to invoke arbitration vide clause 10 of the Work Order (Special Conditions of Contract).

5.3. Having invoked arbitration, Sharma Enterprises filed an application under section 20 of the 1940 Act, being CS (OS)

No. 3446/1992, seeking appointment of an arbitrator.

Signature Not Verified

5.4. During the pendency of the suit, it transpired that the Chairman-cum-Managing Director of NBCC („CMD‟) appointed Mr. Daljit Singh, General Manager, an employee of Sharma Enterprises, as the Sole Arbitrator to adjudicate upon the disputes.

5.5. However, vide order dated 02.12.1997 made in CS (OS)

No.3446/1992 the Delhi High Court set-aside the appointment of Mr. Daljit Singh; and instead appointed Mr. Justice G.C.

Jain, a former Judge of this court as the Sole Arbitrator.

5.6. Unfortunately, Justice G.C. Jain passed-away, by reason whereof vide order dated 09.09.1998 made in CS (OS) No.3446/1992, this court appointed Mr. Justice Satpal another former Judge of this court as the substitute Arbitrator in the matter. For clarity, it needs to be noted that up-until the appointment of Justice Satpal, the matter was being dealt-with under the 1940 Act (who eventually even made and published award dated 12.09.2005, which award was however restricted only to the claims made by Sharma Enterprises).

5.7. In the meantime however, NBCC sought to raise some counter-

claims in the matter; and filed an application before Justice Satpal to consider their counter-claims. This application was dismissed by Justice Satpal vide order dated 16.03.2002, holding that the counter-claims sought to be raised were not a part of the reference to arbitration; and that therefore he could not entertain them.

Signature Not Verified

5.8. In the above circumstances, vide letter