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2018 (11) TMI 1867 - HC - Indian LawsSeeking appointment of an arbitrator - agreement to sell and transfer the suit property - applicant had failed to obtain the permissions as per clause 4 of the said agreement and thus the said agreement automatically stood terminated - condonation of delay in filing arbitration application - immovable property exclusively used in trade or commerce or not - jurisdiction of the Commercial Courts under Section 6 of the Commercial Courts Act, 2015 - Section 11(6) of the Arbitration and Conciliation Act, 1996 - HELD THAT:- By virtue of the amendment as on 23rd October 2015, there was no persona designata available for hearing the applications under Section 11(6) of the Arbitration Act even in respect of the arbitration proceedings having commenced prior to 23rd October 2015 by virtue of notice invoking the arbitration agreement issued prior to the date of the amendment - since the proceedings under Section 11(6) of the Arbitration Act are required to be filed before the High Court, Article 137 of the Schedule to the Limitation Act, 1963 would apply to such application filed under Section 11 (6) of the Arbitration Act. Since Article 137 of the Schedule to the Limitation Act, 1963 would apply to the arbitration application under Section 11(6) of the Arbitration Act, Section 5 of the Limitation Act, 1963 would also apply to the arbitration application filed under Section 11(6) of Arbitration Act. Delhi High Court in the case of Yogesh Kumar Gupta [2007 (2) TMI 714 - DELHI HIGH COURT] has held that since the Limitation Act, 1963 specifically applies to the arbitrations, Section 5 of the Limitation Act would also apply to an application/petition under Section 11(5) of the Arbitration Act. Delhi High Court has also considered the provisions of Section 14(1) and 14(2) of the Limitation Act, 1963 and held that it would be open to the applicant to file a fresh application under Section 11(5) of the Arbitration Act. The principles of law laid down by the Delhi High Court in the case of Yogesh Kumar Gupta would apply to the facts of this case. The views expressed by the Delhi High Court in the said judgment, is to be agreed upon. The limitation prescribed under Article 137 of the Schedule to the Limitation Act, 1963 which applies to an application under Section 11(6) or Section 11(9) of the Arbitration Act filed before the High Court or before the Hon'ble Supreme Court cannot be mixed up with the period of limitation applicable to the claims prescribed in various other Articles of the Schedule to the Limitation Act, 1963. Both these periods of limitation i.e. one applicable to the claims being made and another being applicable to the application under Section 11(6) or Section 11(9) of the Arbitration Act to which Article 137 of the Schedule to the Limitation Act, 1963 applies, are two different periods of limitation and cannot be made applicable to each other. Whether the applicant has made out a sufficient cause for condonation of delay of 536 days in filing this arbitration application without prejudice to the rights and contention of the applicant that there was no delay in filing this application under Section 11(6) of the Arbitration Act? - HELD THAT:- The applicant was prosecuting the application under Section 9 relying upon the said agreement which is relied upon in this arbitration application for the purpose of appointment of an arbitrator in good faith and due diligence. The applicant is thus entitled to take the benefit of the principles of Section 14 of the Limitation Act, 1963 for the purpose of computing the limitation under Article 137 of the Schedule to the Limitation Act, 1963 in filing this arbitration application under Section 11(6) of the Arbitration Act. There is thus no delay in filing this arbitration application. This Court thus need not consider a separate relief in the notice of motion filed by the applicant. It is not in dispute that this Court has been assigned the matters under Section 11(6) of the Arbitration and Conciliation Act, 1996 and also the arbitration applications under the provisions of the Commercial Courts Act, 2015. However, since this Court is of the view that the terms and conditions of the agreement and the pleadings and documents clearly reflects the commercial dispute between the parties and also reflects that the property in question was used for commercial purposes, this application filed before the commercial division of this Court is maintainable. There is thus no need to grant leave to amend to convert the said commercial arbitration application into the arbitration application under Section 11(6) of the Arbitration and Conciliation Act, 1996. Since there is no dispute about the existence of arbitration agreement and since the respondents did not appoint any arbitrator inspite of receipt of notices invoking arbitration agreement by the applicant, this commercial arbitration application filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 is maintainable - Mr. Snehal K. Shah, a counsel of this Court is proposed to be appointed as an arbitrator on behalf of the applicant. Application disposed off.
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