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HIGH COURT OF DELHI
Date of Decision: 07th December, 2018
SANT KUMAR AGARWAL ..... Petitioner
Through: Mr.Prakhar Bhatnagar & Mr.Mohit Tyagi, Advs.
Through: Mr.Lokesh Bhola, Mr.Karan Grover & Ms.Harshita Agarwal, Advs.
IA No. 12838/2018 This application has been filed by the petitioner seeking modification of order dated 04.09.2018 whereby this Court had recorded the statement made by the learned counsel for the respondent that all further arbitration proceedings against the respondent company have been stayed by the Supreme Court. The appellant/petitioner submits that this statement was incorrect.
2018:DHC:7746
The learned counsel for the respondent submits that the above statement was made due to inadvertence and was a bona fide mistake. He admits that there is no order staying such arbitration proceedings against the respondent company.
Recording the above statement made by the learned counsel for the respondent, the application is disposed of.
JUDGMENT
1. This petition under Section 14 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the „Act‟) has been filed by the petitioner seeking termination of the mandate of the Sole Arbitrator appointed by the respondent to adjudicate the disputes that have arisen between the parties in relation to the Allotment Letter/Agreement dated 29.10.2007 whereby the respondent had allotted a shop in favour of the petitioner in its upcoming shopping mall “Grand Venezia” situated at Plot No. SH-3, Site-IV, Industrial Area, Surajpur, Greater Noida, UP.
2. The learned counsel for the petitioner submits that the last payment made by the petitioner to the respondent towards allotment of the shop was in the year 2008. Thereafter, due to defaults of the respondent, the petitioner decided not to take this shop and infact, abandoned its claim over the said shop. The respondent, on the other hand continued raising demands of installments on the petitioner, which the petitioner refused to pay. The respondent, thereafter, initiated the arbitration proceedings on 19.01.2018 by invoking the Arbitration Agreement and appointed a Sole Arbitrator. O.M.P.(T) 3/2018 Page 3
3. The learned counsel for the petitioner submits that the claim of the respondent is ex facie barred by Law of Limitation and therefore, the mandate of the Arbitrator deserves to be terminated. He places reliance on the judgment of this Court in Sharma Enterprises v. National Building Construction Corporation Ltd. & Anr., 153 (2008) DLT 594.
4. I have considered the submission made by the learned counsel for the petitioner, however, find no merit in the same. Sub-Section 1 of Section 14 of the Act is reproduced hereinunder:-
5. The plea of the petitioner that the claim of the respondent would be barred by Law of Limitation is one on the merits of the claim. This does not make the Arbitrator de jure or de facto unable to perform “his functions” as an Arbitrator.
6. The learned counsel for the respondent has also drawn my attention to the consumer complaint filed by the petitioner before the National Consumer Disputes Redressal Commission in the year 2018 inter alia making a claim for refund of the amount paid by the petitioner to the respondent for the above mentioned shop alongwith interest at the O.M.P.(T) 3/2018 Page 4 rate of 24% per annum from the date of booking of the shop. He submits that the petitioner cannot, therefore, maintain its objection of limitation.
7. I need not go into the issue of limitation at this stage. In my opinion this issue has to be determined by the Arbitrator alone, may be on an application under Section 16 of the Act filed by the petitioner. However, certainly this issue cannot be determined in an application under Section 14 of the Act. The judgment of this Court in Sharma Enterprises (Supra) can be of no assistance to the petitioner. In the said case the Court found that there was no doubt at that the claim filed by the party was dead and long barred by limitation. This cannot be said in the present case for the petitioner himself has filed a consumer complaint in the year 2018.
8. Further, the said judgment was passed prior to the amendment in the Act by way of Arbitration and Conciliation (Amendment) Act, 2015, which has specifically introduced Section 11(6A) to the Act, which reproduced as under:-