Megha 34_arabpl_37441_2025_fc.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

ARBITRATION APPLICATION (L) NO.37441 OF 2025

WITH

INTERIM APPLICATION (L) NO.11418 OF 2026

IN

ARBITRATION APPLICATION (L) NO.37441 OF 2025

INFRA Poonam Developers LLP ...Applicant

V/s.

Jasbir Singh s/o. Ajit Singh and Ors. ...Respondents

________________

Mr. Aman Saraf with Ms. Sakshi Agarwal i/b. Mr. Bipin J. Joshi for the

Applicant.

Mr. Ziyad Madon with Mr. Chittesh Dalmia for Respondent No.6

________________

CORAM: SANDEEP V. MARNE, J.

Judgment reserved on: 30 MARCH 2026.

Judgment pronounced on: 07 APRIL 2026.

JUDGMENT:

1)This is an Application filed by the Applicant under Section 11 of

the Arbitration and Conciliation Act, 1996 (the Arbitration Act) for

appointment of an Arbitrator for adjudication of disputes between the

parties arising out of Deed of Alteration of Partnership dated 10 April

2013. Since there is delay of 258 days in filing the Application, the

Applicant has filed Interim Application (L) No.11418 of 2026 for

condonation thereof.

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2)The Applicant is a registered Limited Liability Partnership Firm.

The subject matter of dispute between the parties is the property

known as -Panwala chawl Nos. 2 and 3 situated at City Survey No.1/112

of Parel Sewri Division, Building No.75-75A and 75-B, Dr. S.S. Rao Road,

Lalbaug, Mumbai (suit property). The property originally belonged to a

private trust, which are acquired by M/s. R.B. Builders and Developers

(the Firm) pursuant to order passed by this Court. At that time, there

were 7 partners namely Respondent Nos.1 to 7 in the Firm. The

acquisition was for the purpose of redevelopment of the suit property.

The Maharashtra Housing and Area Development Authority (MHADA)

issued NOC for redevelopment of the property in the year 2008, which

was modified in the year 2010. The Municipal Corporation granted

Intimation of Disapproval (IOD) dated 4 August 2010. A Memorandum

of Understanding came to be executed between the Respondents and

sister concern of the Applicant (Poonam Infra) for transfer of

development rights for consideration of Rs.20.70 crores. It is the case of

the Applicant that its nominee made a payment of Rs.4 crores to the

Firm. Deed of Admission of Partner dated 30 April 2011 was executed,

under which Applicant’s nominee -Poonam Infra, a partnership firm

was added as 8

th

partner in the Firm having 15% profit and loss sharing

ratio. Poonam Infra was to make contribution of its share for carrying

on construction and redevelopment of the project. The Firm obtained

commencement certificate dated 9 December 2011. Construction

commenced and was completed upto the plinth level. A stop work

notice was issued in the year 2012, which was revoked in the year 2013.

According to the Applicant, it later realised that its sister concern-

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Poonam Infra cannot be a partner of another Firm and accordingly,

Deed of Alteration of Partnership Firm dated 10 April 2013 was

executed, under which the Applicant was made 8

th

Partner in the Firm.

According to the Applicant, MHADA issued show cause notice to the

Firm for revocation of NOC. On 29 December 2016 MHADA directed the

Firm to effect redevelopment work and pay rent to the tenants, which

the Firm was unable to pay. Thereafter litigation took place between the

Society, Firm and MHADA relating to the redevelopment project.

3)In the light of above background, the Applicant decided to

withdraw itself from the project and sought refund of amount of

Rs.29,63,67,674.97. The notice issued by the Applicant was responded

by the Respondents denying the contents therein. The Applicant

apparently filed police complaints. By notice dated 20 June 2020, the

Applicant invoked arbitration clause. Since no response was received,

the Applicant filed Arbitration Petition No.241 of 2023 under Section 9

of the Arbitration Act seeking interim measures. On 20 July 2020, this

Court granted ad-interim measures retraining the Respondents from

creating third party rights or from putting up any construction or

altering the status of the property. Statement made on behalf of the

MHADA for not taking coercive steps was also recorded. According to

the Applicant, due to outbreak of Covid-19 Pandemic, it could not make

any fruitful movement in the matter. In 2023, the Applicant started

making efforts to protect its interests in the project. It made several

representations to various authorities. In the meantime, MHADA passed

order on 11 January 2024 for acquisition of the property by blacklisting

the Firm. The Applicant filed Writ Petition No.722 of 2024 before this

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Court challenging the order of acquisition. It also filed Interim

Application (L) No.4358 of 2024 in the pending Petition (Arbitration

Petition No.241 of 2023) filed under Section 9 of the Arbitration Act

seeking restraint order against MHADA. By order dated 27 February

2024 passed in Writ Petition No.722 of 2024, the Applicant was directed

to deposit an amount of Rs.2 crores as a pre-condition for hearing of

the Petition, which amount was deposited by the Applicant. The

Petition was finally disposed of on 21 March 2024 granting liberty to the

Applicant to make representations to the State Government and

MHADA. The Applicant accordingly made representation showing

readiness and willingness to complete the project. However, the

representation was rejected by order dated 14 August 2024. The

Applicant accordingly filed Writ Petition (L)No.32243 of 2024 in this

Court, which is pending. In the meantime, by order dated 20 March

2025 the property stood acquired by MHADA.

4)In the above background, the Applicant has filed the present

Application for appointment of an Arbitrator on 15 November 2025.

After filing of the present Application, this Court disposed of Section 9

Petition (Arbitration Petition No.241 of 2023) by order dated 4 February

2026, which was withdrawn in the light of filing of Section 11

Application.

5)Since notice under Section 21 of the Arbitration Act was issued on

20 June 2020 there is delay in filing the present Application. The

Applicant however contends that the period from 15 March 2020 to 28

February 2022 is required to be excluded on account of Covid-19

pandemic. This is how the Applicant submits that delay in filing the

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Application is only of 258 days. It has accordingly filed Interim

Application for condonation of delay.

6)Mr. Aman Saraf, the learned counsel appearing for the Applicant

would contend that the delay caused in filing the Application deserves

to be condoned considering the facts and circumstances of the present

case. He submits that the Applicant was required to initiate several

litigations and correspondence with the authorities for the purpose of

preserving the subject matter of arbitration. That decision to file

Application under Section 11 of the Arbitration Act was taken only after

acquisition of the property by MHADA. Since subject matter of

arbitration was itself under cloud, the Applicant was first required to

resolve the issues relating to project and could not rush before this

Court for seeking appointment of the Arbitrator. He submits that merits

of the claim of the Applicant are also required to be borne in mind

while deciding the issue of condonation of delay. That the Applicant has

invested amount of Rs.30 crores in the project and if reference to

arbitration is not made, the Applicant would lose right to have the

disputes with the Respondents adjudicated on merits. That condoning

the delay would only result in adjudication of claims of parties against

each other on merits. On the other hand, refusal to condone the delay

would result in drastic consequences. That the Applicant would lose

investment of over Rs.30 crores in the project.

7)In support of his contention that the referral court exercising

jurisdiction under Section 11 of the Arbitration Act can condone delay

in filing of application, Mr. Saraf relies on judgment of the Hon’ble

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Supreme Court in HPCL Bio-Fuels Ltd. V/s. Shahaji Bhanudas Bhad

1

and of this Court in Tata Motors Passenger Vehicles Ltd and Another

V/s. Ghosh Brothers Automobiles and Others

2

. Mr. Saraf submits that

the Applicant has made out sufficient cause for condonation of delay in

filing the Application. In support, he relies on judgments of the Hon’ble

Supreme Court in N. Balakrishnan V/s. M. Krishnamurthy

3

and Sheo

Raj Singh (deceased) through Legal Representatives and Others V/s.

Union of India and Another

4

. He would accordingly pray for condoning

the delay in filing the Application.

8) So far as merits of the Arbitration Application is concerned, Mr.

Saraf submits that existence of arbitration is not in dispute. He invites

attention of the Court to the arbitration agreement contained in clause

16 of the Deed of Alteration of Partnership Dated 10 April 2013. He

would accordingly pray for appointment of a sole Arbitrator.

9)Mr. Ziyad Madon, the learned counsel appearing for Respondent

No.6 opposes the Application submitting that the same is grossly

barred by limitation. That the cause of action for filing the Application

arose on 20 June 2020, but the Application is filed more than 5 years

later on 15 November 2025. He submits that the period of Covid-19

Pandemic cannot be excluded while computing period of limitation in

the facts of the present case as the Applicant undertook various other

litigations during pandemic period. That it secured interim measures

under Section 9 of the Arbitration Act by filing Petition right in the

middle of pandemic restrictions on 20 July 2020. That the Applicant sat

12024 SCC OnLine SC 3190

22026 SCC OnLine Bom 1100

3(1998) 7 SCC 123

4(2023) 10 SCC 531

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on relief secured under Section 9 of the Arbitration Act over 5 years and

has filed the present Application after considerable delay. That

therefore nothing prevented the Applicant from filing Application

under Section 11 of the Arbitration Act. That the Applicant has failed to

make out sufficient cause for condonation of delay. He submits that

mere length of delay is not material and cause for delay is the relevant

factor for deciding application for condonation of delay. In support, he

relies on judgment of the Supreme Court Court in Mool Chandra V/s.

Union of India and Another

5

. Mr. Madon submits that the Applicant is

seeking to infuse life into a dead claim. That qua Respondents, the

Applicant has absolutely no claims, which are capable of being

arbitrated. Not only the claims are time barred, the Application filed for

appointment of Arbitrator is also grossly barred by limitation. Mr.

Madon accordingly prays for dismissal of the Applications.

10)I have considered the submissions canvassed by the learned

counsel appearing for the rival parties.

11)The present Arbitration Application is filed by the Applicant for

appointment of Arbitrator under Section 11 (6) of the Arbitration Act.

By now, it is well settled position that the limitation period prescribed

in Article 137 of the Limitation Act, 1963 (the Limitation Act) applies to

filing of Application under Section 11(6) of the Arbitration Act. The

period of limitation prescribed under Article 137 of the Limitation Act is

three years, to be computed from the date when right to sue accrues. In

Arif Azim Co. Ltd. Vs. Aptech Ltd.

6

the Apex Court has held that the

5(2025) 1 SCC 625

6(2024) 5 SCC 313

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right to apply for appointment of an arbitrator under Section 11 of the

Arbitration Act accrues when a notice under Section 21 of the Act is

served and there is failure on the part of the opposite side in complying

with the requirements mentioned in the notice. It is held in paragraphs

56 and 62 of the judgment as under:

56. The other way of ascertaining the relevant point in time when

the limitation period for making a Section 11(6) application would

begin is by making use of the Hohfeld’s analysis of jural relations. It

is a settled position of law that the limitation period under Article

137 of the Limitation Act, 1963 will commence only after the right

to apply has accrued in favour of the applicant. As Page 31 of 58 per

Hohfeld’s scheme of jural relations, conferring of a right on one

entity must entail the vesting of a corresponding duty in another.

When an application under Section 11(6) of the Act, 1996 is made

before this Court without exhausting the mechanism prescribed

under the said sub-section, including that of invoking arbitration by

issuance of a formal notice to the other party, this Court is not duty

bound to appoint an arbitrator and can reject the application for

being premature and non-compliant with the statutory mandate.

However, once the procedure laid down under Section 11(6) of the

Act, 1996 is exhausted by the applicant and the application passes

all other tests of limited judicial scrutiny as have been evolved by

this Court over the years, this Court becomes duty-bound to appoint

an arbitrator and refer the matter to an arbitral tribunal. Thus, the

“right to apply” of the Applicant can be said to have as its jural

corelative the “duty to appoint” of this Court only after all the steps

required to be completed before instituting a Section 11(6)

application have been duly completed. Thus, the limitation period

for filing a petition under Section 11(6) of the Act, 1996 can only

commence once a valid notice invoking arbitration has been sent by

the applicant to the other party, and there has been a failure or

refusal on part of that other party in complying with the

requirements mentioned in such notice.

xxx

62. A perusal of the above shows that the request for appointment

of an arbitrator was first made by the petitioner vide notice dated

24.11.2022 and a time of one month from the date of receipt of

notice was given to the respondent to comply with the said notice.

The notice was delivered to the respondent on 29.11.2022. Hence,

the said period of one month from the date of receipt came to an

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end on 28.12.2022. Thus, it is only from this day that the clock of

limitation for filing the present petition would start to tick. The

present petition was filed by the petitioner on 19.04.2023, which is

well within the time period of 3 years provided by Article 137 of the

Limitation Act, 1963. Thus, the present petition under Section 11(6)

of the Act, 1996 cannot be said to be barred by limitation.

(emphasis added)

Thus, Application under Section 11(6) of the Arbitration Act needs to be

filed within a period of three years from the date of failure to act in

accordance with the notice invoking arbitration under Section 21 of the

Arbitration Act.

12)In the present case, the notice under Section 21 of the Arbitration

Act has been issued by the Applicant on 20 June 2020, by which the

Applicant gave time of 7 days to concur with the suggested names of

arbitrators and therefore Application for appointment of Arbitrator

under Section 11 (6) of the Arbitration Act was required to be filed on or

before 26 June 2023. The Applicant failed to apply for appointment of

arbitrator within the period of 3 years prescribed in Article 137 of the

Limitation Act. However, the Applicant cites the reason of COVID-19

pandemic related restrictions when the Notice under Section 21 was

issued on 20 June 2020 and relies on Order passed by the Hon’ble

Supreme Court in RE: Cognizance for Extension of Limitation

7

, under

which the Hon’ble Supreme Court has excluded period from 15 March

2020 to 28 February 2022 for the purpose of computation of limitation

in the light of Covid-19 pandemic. According to the Applicant, since

notice under Section 21 of the Arbitration Act was issued right during

pandemic period on 20 June 2020, the period upto 28 February 2022 is

required to be excluded. Mr. Madon contests this position and

7(2022) 1 SCC (L&S) 501

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highlights the fact the Applicant filed Petition under Section 9 of the

Arbitration Act on 20 July 2020. He submits that therefore Covid-19

pandemic restrictions could not have selectively come in the way of the

Applicant filing Application under Section 11 of the Arbitration Act.

However, all Courts in India are bound by the directions issued by the

Apex Court in RE: Cognizance for Extension of Limitation (supra) and it

is not permissible to make case specific exceptions. Once the Supreme

Court has directed exclusion of period from 15 March 2020 to 28

February 2022 for the purpose of computation of limitation, mere filing

of Section 9 Petition by the Applicant on 20 July 2020 cannot be a

reason for denying him the benefit of exclusion of Covid-19 Pandemic

period. Applicant may have filed Section 9 Petition to preserve the

subject matter of arbitration. That does not mean that there was any

compulsion for him to seek appointment of arbitrator

contemporaneously. Considering the limited functioning of Courts

during pandemic period, non-filing of Section 11 Application, involving

no urgency, was quite justified. In my view, therefore, period from 26

June 2020 to 28 February 2022 is required to be excluded while

computing period of limitation of three years under Article 137 of the

Limitation Act.

13)After excluding the period from 26 June 2020 to 28 February 2022,

the present Application ought to have been filed on or before 28

February 2025. The Application is however filed on 15 November 2025.

This is how there is delay of 258 days in filing Application under Section

11(6) of the Arbitration Act. In HPCL Bio-Fuels (supra) the Apex Court

has ruled that benefit under Section 5 of the Limitation Act is available

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in respect of the application filed for appointment of arbitrator under

Section 11(6) of the Arbitration Act. However, the Apex Court has held

that discretion for condonation of delay under Section 5 of the

Limitation Act can be exercised only in exceptional cases where very

strong case is made out by the Applicant for condonation of delay in

filing Application under Section 11(6) of the Arbitration Act. The Apex

Court held in paragraphs 121 to 124 of the judgment in HPCL Bio-Fuels

as under:

121. The position of law that emerges from the aforesaid discussion is

that the benefit under Section 5 of the Limitation Act is available in

respect of the applications filed for appointment of arbitrator under

Section 11(6) of the Act, 1996. Further, the requirement of filing an

application under Section 5 of the Limitation Act is not a mandatory

prerequisite for a court to exercise its discretion under the said

provision and condone the delay in institution of an application or

appeal. Thus, the only question that remains to be considered is

whether in the facts of the present case, the respondent could be said

to have made out a case for condonation of delay in instituting the

fresh Section 11(6) application.

122. As discussed, the respondent took a conscious decision to

abandon its first Section 11(6) application with a view to pursue

proceedings under Section 9 of the IBC. The respondent made such

choice despite a specific objection raised by the appellant in its reply

to the statutory demand notice that there were pre-existing disputes

between the parties. In view of this, maximisation of the chances of

getting the application under Section 9 of the IBC admitted by the

NCLT seems to have been the only reason for the abandonment of the

first Section 11(6) application by the respondent. In light of such

conduct on the part of the respondent, we are of the view that the

present case does not warrant the exercise of our discretion under

Section 5 of the Limitation Act.

123. The primary intent behind Section 5 of the Limitation Act is not

to permit litigants to exploit procedural loopholes and continue with

the legal proceedings in multiple forums. Rather, it aims to provide a

safeguard for genuinely deserving applicants who might have missed a

deadline due to unavoidable circumstances. This provision reflects the

intent of the legislature to balance the principles of justice and

fairness, ensuring that procedural delays do not hinder the pursuit of

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substantive justice. Section 5 of the Limitation Act embodies the

principle that genuine delay should not be a bar access to justice, thus

allowing flexibility in the interest of equity, while simultaneously

deterring abuse of this leniency to prolong litigation unnecessarily.

124. The legislative intent of expeditious dispute resolution under the

Act, 1996 must also be kept in mind by the courts while considering an

application for condonation of delay in the filing of an application for

appointment of arbitrator under Section 11(6). Thus, the court should

exercise its discretion under Section 5 of the Limitation Act only in

exceptional cases where a very strong case is made by the applicant for

the condonation of delay in filing a Section 11(6) application.

(emphasis and underlining added)

14)As a matter of fact, in HPCL Bio-Fuels, the Apex Court, while

recognising the principle of application of Section 5 of the Limitation

Act to filing of an Application under Section 11(6) of the Arbitration

Act, has gone a step further by holding that filing of Application under

Section 5 of the Limitation Act is not a mandatory prerequisite for the

Court to exercise its discretion and that Court can condone the delay in

institution of an Application even without any formal Application for

condonation of delay.

15)In Tata Motors Passenger Vehicles Ltd. (supra) I have condoned

the delay of 76 and 91 days in filing Applications under Section 11 of

the Arbitration Act in absence of filing of a formal Application for

condonation of delay. This Court held in paragraph 38 of the judgment

as under:

38) Thus the Apex Court has ruled in HPCL Bio-Fuels (supra) that

benefit under Section 5 of the Limitation Act is available in respect

of the application filed for appointment of arbitrator under Section

11(6) of the Arbitration Act. The Apex Court has gone a step further

and has held that the requirement of filing application under

Section 5 of the Limitation Act is not a mandatory pre-requisite for

a Court to exercise its discretion under the said provision and

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condone the delay in institution of the application. Thus, the delay

in filing application under Section 11(6) can be condoned by the

Court, in a given case, even in absence of a formal application for

condonation of delay. In the present case, the delay is of 76 and 91

days. Considering the peculiar facts and circumstances of the case

where appointment of substitute arbitrator is necessitated

essentially for carriage of the reference and for its logical

conclusion, in my view, delay of 76 and 91 days in filing the present

application deserves to be condoned. The Applicants have been

taking requisite steps for having the disputes adjudicated. The

situation has arisen essentially on account of earlier arbitrator

withdrawing from arbitral proceedings and the Institute (BCCI)

failing to appoint the arbitrator despite repeated requests by the

Applicants. It is Applicants’ case that the liability to pay the

demanded amount is admitted by the Respondents. It is not

necessary to delve deeper into that aspect at this stage. However,

suffice it to observe that an opportunity needs to be granted to the

Applicants to have their disputes adjudicated on merits. I am

therefore inclined to condone the delay of about 76 and 91 days in

filing the present Applications.

(emphasis added)

16)Thus, this Court is invested with power to condone the delay in

filing application under Section 11(6) of the Arbitration Act on account

of applicability of provisions of Section 5 of the Limitation Act. Though

filing of formal application for condonation of delay is not a

prerequisite, the Applicant has, in the present case, filed Interim

Application (L) No.11418 of 2026 seeking condonation of delay of 258

days. The issue for consideration is whether the Applicant has made out

sufficient cause as well as exceptional case for condonation of delay of

258 days. While Courts need to adopt liberal approach while

considering condonation of delay in usual cases, the approach while

considering the issue of condonation of delay in filing application under

Section 11(6) needs to be different. The discretion under Section 5 of

the Limitation Act is not to be exercised routinely and by adopting a

liberal approach. The Applicant needs to make out a very strong case for

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condonation of delay in filing Section 11(6) Application and the

reference Court needs to be satisfied that the case is exceptional one. I

accordingly proceed to examine whether the Applicant has made out a

sufficient cause keeping in mind the caveat prescribed by the Apex

Court in HPCL Biofuels that the delay can be condoned only in

exceptional case where very strong case is made out by the Applicant,

17)From narration of facts, it is seen that the Applicant has entered

as the 8

th

partner in the Partnership Firm where the Respondents were

the original partners. The Firm was entrusted with the project of

redevelopment of Panwala Chawl at Lalbaug in Mumbai. It is

Applicant’s case that it has invested amount of Rs.30 crores in the

project. The initial investments were through its sister concern Poonam

Infra and later, the Applicant is admitted as the partner in the Firm. It

appears that the project is taken away from the Firm by MHADA by

acquisition of property vide order dated 20 March 2025. The Petitioner

therefore wants back the invested amounts from the Firm and

accordingly seeks adjudication of disputes through arbitration.

18)The Applicant is thus desirous of seeking adjudication of its claim

against the other 7 partners on account of losses suffered by it by

investing amount of Rs.30 crores in the project. Though the Applicant

has invoked arbitration by issuing notice dated 20 June 2020, it was first

required to secure and preserve the subject matter of arbitration, which

was in the danger of being wasted. The subject matter of arbitration in

the present case is the redevelopment project and the Applicant was

required to make efforts and engage into a maze of litigation to save

and preserve the project. On account of the rift amongst the partners,

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the society members were complaining to MHADA, who wanted to take

away the project from the Firm. The Applicant was first required to file

Arbitration Petition No.241 of 2023 on 10 July 2020 for securing interim

measures against the Respondents. By order dated 20 July 2020, this

Court restrained the Respondents from creating any third-party rights,

parting with possession or putting up any construction altering the

status or condition of the property. More importantly, this Court also

made interim measures against MHADA from taking coercive actions in

respect of the project. This is how the Applicant was required to take

steps for preserving the subject matter of arbitration. On account of

Covid-19 Pandemic, no development took place in respect of the project

for some time. In May-2023, the Applicant started making the

representations to various authorities such as Chief Minister,

Additional Chief Secretary of Housing Department, MHADA, etc. It also

made representation on 12 July 2023 to president of MHADA.

19)It appears that the subject matter of arbitration came under real

threat when MHADA made application before the Housing Department

seeking acquisition of the property for effecting redevelopment of the

chawl. The Housing Department accepted MHADA’s Application and

permitted MHADA to pursue the application by blacklisting the

Partnership Firm on 11 January 2024. On account of this development,

the Applicant was required to file Writ Petition No.722 of 2024 for

setting aside the order of acquisition. Simultaneously, the Applicant

also filed Interim Application in Section 9 Petition for securing the

interim measures against MHADA. According to the Applicant, this

Court issued oral directions to MHADA not to take any coercive steps on

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12 February 2024. As a pre-condition for entertainment of Writ Petition

No.722 of 2024, this Court directed the Applicant to deposit an amount

of Rs.2 crores, possibly towards arrears of transit rent of 80 members of

the Chawl-Society. It is the Applicant, who complied with the said order

and deposited amount of Rs.2 crores in this Court to preserve the

subject matter of arbitration. According to the Applicant, it was the

responsibility of Respondent No.6 to pay the transit rent, but for saving

the project, it was required to make the deposit. Writ Petition No.722 of

2024 was thereafter entertained and disposed of with liberty to the

Applicant to make representation to the State Government and to

MHADA. The Applicant accordingly made representation in April 2024

showing readiness and willingness to pay outstanding transit rent and

to complete the project. Representations were heard in July 2024 and

were finally rejected on 14 August 2024. The Applicant was required to

file Writ Petition (L)No.32243 of 2024 challenging the order dated 14

August 2024, which is pending. While the Applicant was taking above

steps for preserving the subject matter of arbitration, the period of

three years for filing Application under Section 11(6) of the Arbitration

Act came to an end on 1 March 2022. However, on 20 March 2025

MHADA completed acquisition proceedings and property vested in

MHADA. The Applicant called upon the Respondents to appear in

Section 9 Petition for securing appropriate interim measures, but the

Respondents failed to show any interest. After learning that the

Respondents were not showing any interest in the project and that the

entire investment made by the Applicant would go waste, he has

ultimately filed Application under Section 11(6) of the Arbitration Act

on 15 November 2025.

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20)The Applicant was thus required to take several steps for ensuring

preservation of the subject matter of arbitration, before it could seek

adjudication of disputes with other partners of the Firm.

21)Considering the above position, in my view, an exceptional and

strong case is made out by the Applicant for condonation of delay in

filing Application under Section 11(6) of the Arbitration Act. The case

involves peculiar circumstances, where taking of steps for preservation

of subject matter of arbitration was more important than seeking

adjudication of disputes with the other partners. If the Applicant was

successful in securing the project, the very perspective of the disputes

between the Applicant and other partners would have changed. In the

facts of the present case, the Applicant thought it more prudent, and in

my view rightly, to first take steps to prevent the property being

acquired by MHADA. It was required to litigate repeatedly for ensuring

that the Firm does not lose the project. The real cause for seeking

arbitration against the Respondents has occurred only after MHADA

acquired the property and the Firm has lost the possession. It now

appears that the Applicant does not have much hopes left in securing

back the investment allegedly made by it in the project by completing

the same and it desires to seek recovery of the same from other partners

(Respondents).

22)Considering the above unique circumstances, in my view delay in

filing the Application deserves to be condoned. The Applicant has made

out sufficient cause as well as a strong and exceptional case for

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condonation of delay. All the three decisions relied upon by rival parties

in N. Balakrishnan, Sheo Raj Singh (deceased) through Legal

Representatives and Mool Chandra (supra) discuss the principles

governing the approach and methodology to be adopted by the Courts

in deciding applications for condonation of delay in cases other than

application under Section 11(6) of the Arbitration Act and are therefore

not relevant for deciding the present application. In the present case,

length of delay is not inordinate. There is a strong cause shown by the

Applicant, who is not found to be dormant or negligent in respect of its

remedy. Its remedy of seeking appointment of arbitrator was also

dependent, to a great extent, on preserving the subject matter of

arbitration. This Court is satisfied with the justification for delay since

the Applicant was required to take several steps for preserving the

subject matter of arbitration. Therefore, it cannot be inferred that the

Applicant was negligent or indolent in respect of its right to seek

adjudication of disputes through arbitration.

23)In my view, therefore, the Applicant has made out a strong and

exceptional case for condonation of delay of 258 days in filing the

Arbitration Application. In my view therefore, the delay in filing the

application deserves to be condoned.

24)So far as merits of the Application is concerned, clause 16 of the

Deed of Alteration of Partnership dated 10 April 2013 undoubtedly

contains arbitration agreement. Clause 16 reads thus:

16.If during the continuance of the said partnership or at any time

afterwards any difference shall arise between the partners and the

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heirs, executors or administrators in regard to the construction of any

of the articles herein contained or to any division, act or thing to be

made or done in pursuance hereto or to any other matter or thing

relating to the said partnership the same shall be forthwith referred to

one arbitrator if the parties agree or otherwise to two arbitrators, one

to be appointed by each party to the reference or to an Umpire to be

chosen by the Arbitrators before entering upon the reference and

every such reference shall be deemed to be an Arbitration in

accordance with and subject to the provisions of Indian Arbitration in

accordance with the subject to the provisions of Indian Arbitration

Act, 1940, or any statutory modification or re-enactment thereof for

the time being in force.

25)Mr. Madon has fairly not disputed the existence of arbitration

between the parties. The parties have also agreed for appointment of a

sole arbitrator. In my view, therefore, it would be just and proper to

constitute Arbitral Tribunal of sole Arbitrator for adjudication of

disputes and differences between the parties.

26)I accordingly proceed to pass the following order:-

(i)Delay of 258 in filing Application under Section 11(6) of the

Arbitration Act is condoned and accordingly, Interim

Application (L) No.11418 of 2026 is allowed.

(ii)Mr. Justice A. A. Sayed, former Chief Justice of Himachal

Pradesh High Court is appointed as sole Arbitrator to

adjudicate upon the disputes and differences between the

parties arising out of Deed of Alteration of Partnership

dated 10 April 2013. The contact details of the Arbitrator

are as under:-

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Office Address:-American View Bungalow, Oomer

Park (Opp. Tata Garden), Bhulabhai

Desai Road (Warden Road), Mumbai-

400 026.

Mobile No.:-982007240

Email id:-sayamjad@gmail.com

(iii)A copy of this order be communicated to the learned sole

Arbitrator by the Advocates for the Petitioner within a period of

one week from the date of uploading of this order. The Petitioner

shall provide the contact and communication particulars of the

parties to the Arbitral Tribunal alongwith a copy of this order.

(iv) The learned sole Arbitrator is requested to forward the

statutory Statement of Disclosure under Section 11(8) read with

Section 12(1) of the Act to the parties within a period of 2 weeks

from receipt of a copy of this order.

(v) The parties shall appear before the learned sole Arbitrator

on such date and at such place as indicated by him, to obtain

appropriate direction with regard to conduct of the arbitration

including fixing a schedule for pleadings, examination of

witnesses, if any, schedule of hearings etc.

(vi)The fees of the sole Arbitrator shall be as prescribed under

the Bombay High Court (Fee Payable to Arbitrators) Rules, 2018

and the arbitral costs and fees of the Arbitrator shall be borne by

the parties in equal portion and shall be subject to the final Award

that may be passed by the Tribunal.

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27) All rights and contentions of the parties are expressly kept open

to be agitated before the arbitral tribunal.

28)With the above order, Arbitration Application is allowed and

disposed of. There shall be no orders as to costs.

29) Interim Application (L) No.11418 of 2026 is disposed of.

[SANDEEP V. MARNE, J.]

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