PNP 1 ARBAP199-07=26.8 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. ARBITRATION APPLICATION NO.199 OF 2007 M/s. Vashi Builders Private Limited ..Applicant. Vs. Green Blaze Co-op. Housing Society Ltd. ..Respondent. ..... Mr. R.D. Dhanuka with Ms. Vaishali Chaudhary i/b Mrs. A.R. Dhanuka for the Applicant. Mr. Roop M. Vasudeo for the Respondent. ..... CORAM : DR.D.Y.CHANDRACHUD, J. 26 August 2010. P.C. : 1. In pursuance of an arbitration agreement between the parties, a reference was made of the disputes and differences which have arisen between them to Mr. Justice M.N. Chandurkar, Former Chief Justice of the Madras High Court. The Respondent had suggested the names of possible arbitrators by its communication dated 26 March 2003 out of which the Applicant had agreed to the appointment of Mr. Justice M.N. Chandurkar as sole arbitrator. The Learned Arbitrator issued directions on 17 September 2003 in pursuance of which the Applicant filed its statement of claim on 28 PNP 2 ARBAP199-07=26.8 November 2003. The Learned Arbitrator died on 20 February 2004. On 16 July 2007 a notice was issued by the Applicant to the Respondent recording that after the death of the arbitrator, negotiations have taken place between the parties which could not fructify into a settlement. Accordingly a request was made for the concurrence of the Respondent in the appointment of an arbitrator instead and in place of the sole arbitrator who had died. The Arbitration Application was filed on 12 October 2007. 2. The defence to the Arbitration Application is that it has been filed beyond a period of three years of the death of the sole arbitrator and that consequently it is barred by limitation. Reliance has been placed on the provisions of Article 137 of the Limitation Act, 1963 and it has been submitted that the right to apply accrued on the death of the sole arbitrator. 3. The contention which has been urged on behalf of the Respondent cannot be accepted for more than one reason. From the judgment of the Supreme Court in SBP & Co. v. Patel Engineering Limited1 it is clear that though the power which is vested with the 1 (2005) 8 SCC618. PNP 3 ARBAP199-07=26.8 Chief Justice under Section 11(6) has judicial characteristics, the Chief Justice is not for that purpose constituted as a Court when he exercises the power. In Patel Engineering the Supreme Court observed that the fact that instead of the Court, the powers are “ conferred on the Chief Justice, has to be appreciated in the context of the statute . The Supreme Court observed that Parliament was ” conscious of the definition of the expression Court in Section 2(e) “ ” of the Arbitration and Conciliation Act, 1996 which is defined to mean the principal civil court of original jurisdiction in a district and to include the High Court in exercise of its ordinary original civil jurisdiction. Parliament, the Supreme Court held, did not want the power under Section 11(6) to be conferred upon the District Court or the High Court in the original jurisdiction and the intent was to confer power on the highest judicial authority in the State, or as the case may be, in the country. 4. These observations of the Supreme Court were construed by Mr. Justice B.N. Srikrishna in Rodemadan India Ltd. v. International Trade Expo Centre Ltd.2 The submission which was urged before 2 (2006) 11 SCC 651. PNP 4 ARBAP199-07=26.8 Mr. Justice B.N. Srikrishna, as a designate of the Chief Justice of India, was that as recourse had been taken by the Petitioner under Section 9 for obtaining relief by moving the Delhi High Court, the consequence was that by reason of Section 42 it could be only that Court which has jurisdiction upon the arbitral tribunal. While rejecting the submission, it was held that neither the Chief Justice “ nor his designate under Section 11(6) is a Court as contemplated “ ” under the Act and the bar of jurisdiction under Section 42 was only ” intended to apply to a Court as defined in Section 2(e). 5. Once it is held that the Chief Justice or his designate while exercising powers under Section 11(6) is not a Court, it is impossible to accede to the submission that the provisions of Article 137 of the Limitation Act would come into operation. Section 43 of the Arbitration and Conciliation Act also specifies that the Limitation Act 1963 shall apply to arbitrations as it applies to proceedings in Court. In these circumstances, there is no merit in the defence which has been urged on behalf of the Respondent. In view of the death of the PNP 5 ARBAP199-07=26.8 sole arbitrator it is necessary for this Court to appoint a new arbitrator, instead and in place of the arbitrator earlier appointed. Smt. Justice K.K. Baam is appointed as sole arbitrator to adjudicate upon the disputes and differences between the parties. The Application is accordingly disposed of. (Dr. D.Y.Chandrachud, J.)