Amended arbitration appointment procedure applies to post-2015 filings, with limitation exclusion and commercial jurisdiction confirmed.

An application for appointment of arbitrator filed after 23 October 2015 was held to fall under the amended Section 11 regime, so the earlier arbitration notice did not keep the pre-amendment procedure alive. The court also held that such a Section 11 application is governed by Article 137 of the Limitation Act, with Sections 5 and 14 available where earlier proceedings were prosecuted bona fide and with due diligence; the delay was condoned on that basis. The underlying agreement was treated as a commercial transaction, so the dispute fell within commercial jurisdiction and the application remained maintainable. The arbitral tribunal was then constituted by appointing nominee arbitrators.

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Issues: (i) Whether the amended provisions of Section 11 of the Arbitration and Conciliation Act, 1996 applied to an application for appointment of arbitrator filed after 23 October 2015, even though the arbitration notice had been issued earlier; (ii) whether Article 137 of the Limitation Act, 1963 applied to the Section 11 application and whether delay in filing could be condoned by applying Sections 5 and 14 of the Limitation Act, 1963; (iii) whether the dispute arising from the agreement constituted a commercial dispute within the meaning of the Commercial Courts Act, 2015.

Issue (i): Whether the amended provisions of Section 11 of the Arbitration and Conciliation Act, 1996 applied to an application for appointment of arbitrator filed after 23 October 2015, even though the arbitration notice had been issued earlier?

Analysis: Once Section 11 stood amended with effect from 23 October 2015, applications for appointment of arbitrator were required to be filed before the High Court or the Supreme Court, as the case may be, and the earlier position of the Chief Justice or his designate as a persona designata no longer governed such applications. The earlier invocation notice did not prevent the amended procedural regime from applying to an application filed after the amendment.

Conclusion: The amended provisions of Section 11 applied to the application.

Issue (ii): Whether Article 137 of the Limitation Act, 1963 applied to the Section 11 application and whether delay in filing could be condoned by applying Sections 5 and 14 of the Limitation Act, 1963?

Analysis: The application under Section 11, being required to be filed before a court, was held to be governed by Article 137. The court held that the period of limitation for the application was distinct from the limitation applicable to the underlying substantive claim. It further held that the time spent in bona fide prosecution of the earlier Section 9 proceedings, including the stamping and appellate process, was liable to be excluded under Section 14, and that Section 5 was available for condonation where sufficient cause existed.

Conclusion: Article 137 applied, Sections 5 and 14 were available, and the delay stood condoned.

Issue (iii): Whether the dispute arising from the agreement constituted a commercial dispute within the meaning of the Commercial Courts Act, 2015?

Analysis: The agreement contemplated development and sale of the property on commercial terms, and the dispute therefore arose out of a transaction used for commercial purposes. The court rejected the objection that the matter lay outside commercial jurisdiction.

Conclusion: The dispute was held to be a commercial dispute and the application was maintainable.

Final Conclusion: The court upheld the maintainability of the application, condoned the delay, and proceeded to constitute the arbitral tribunal by appointing nominee arbitrators for both sides.

Ratio Decidendi: An application for appointment of an arbitrator filed after the 2015 amendment is governed by the amended Section 11 regime and, being a court application, is subject to Article 137 of the Limitation Act, 1963, with Sections 5 and 14 available where the applicant has prosecuted earlier proceedings bona fide and with due diligence.

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