Bombay High Court
Fca India Automobiles Pvt Ltd vs Wavess Cars Pvt Ltd on 5 January, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-OS:693
(10-11)ARBAP-62-65.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION APPLICATION NO.62 OF 2022
FCA India Automobiles Pvt. Ltd. ] .. Applicant
vs.
Wavess Cars Pvt. Ltd. ] .. Respondent
WITH
ARBITRATION APPLICATION NO.65 OF 2022
FCA India Automobiles Pvt. Ltd. ] .. Applicant
vs.
Thrust Motors Pvt. Ltd. CHADA Group. ] .. Respondent
Mr.Ajit Kapadia a/w Aditya Chitale, Prathamesh Bhosale and Sumedh
Ruikar i/b MNSQ Legal for the Applicant.
Mr.Harmeet Oberoi (through VC) a/w Shreeya Pednekar i/b Akash
Memon for the Respondent.
CORAM : BHARATI DANGRE, J
DATE : 5th January, 2024.
P.C.
1] Two Arbitration Applications filed under Section 11 of the
Arbitration and Conciliation Act, but subsequently by way of
amendment having been filed under Section 14 and 15 of the Act, seek
substitution of the Arbitrator.
The Arbitration Applications filed seeking substitution were based
on a communication from the Arbitrator dated 06.09.2021, informing
(10-11)ARBAP-62-65.doc
the parties that the Arbitrator is unable to proceed to South Mumbai on
account of ill health and unable to attend the arbitral proceedings
physically. Presuming the said communication to be a recusal two
Applications were filed on 22.02.2022 praying for substitution of the
Arbitrator. The Applications set out the chronology of events
commencing from 10.08.2016 and by Judgment and order of this Court,
Arbitration Petition was allowed and an Arbitrator was appointed.
2] When the mandate expired and extension of 6 months was
prayed for, it was opposed and this resulted in filing of Arbitration
Petition No.703/2017 by the Applicant under Section 13, 14 and 29A of
the Arbitration and Conciliation Act 1996, challenging the refusal to
grant the consent for extension of time to dispose off the proceedings
the Arbitrator.
By order dated 12.02.2018, the extension as prayed for, is
granted by specifically recording that though there is no time limit
prescribed under Section 29A for making application for extension of
time, the Petitioner having made an Application within reasonable time,
12 months extension was granted from the date of next meeting to
complete arbitration proceedings. Para 37 of the said order made it
clear that the order shall apply to all the three proceedings which are
pending before the learned Arbitrator.
(10-11)ARBAP-62-65.doc
Thereafter, upon the arbitration having progressed and the
period granted having expired, on two occasions necessary orders
were sought by filing Petition under under Section 29A of the Act and
on both the occasions, the extension is granted by order dated
08.03.2019 and the subsequent order dated 23.09.2019, for a period
of 8 months. Accordingly, the Arbitrator continued with the arbitral
proceedings and Minutes of Meeting dated 20.02.2020 are placed on
record.
However, in the interregnum since the entire nation was
grappled with the Covid pandemic, the Apex Court, in a suo moto
petition in RE: Cognizance for extension of Limitation, passed
necessary orders extending the period of limitation which expired
during the period commencing from 15.03.2020 and ending on
28.02.2022 and this was also extended, in computing the period
prescribed under Section 23(4) and 29A of the Arbitration and
Conciliation Act, alongwith the other statutes.
3] The learned counsel, therefore, submit that though an application
for substitution of the Arbitrator was filed on 22.02.2022, based on the
communication from the Arbitrator on 06.09.2021, and accordingly an
affidavit is filed alongwith necessary material which include the orders
granting extension as well as the order of the Apex Court, since there
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was no clear indication whether communication dated 06.09.2021
would amount to recusal, but only when the Arbitrator, on 30.08.2023
addressed a further communication conveying that on account of health
reasons he was unable to continue as an Arbitrator in the two arbitral
proceedings and he sought recusal from the said proceedings and also
indicated that the parties may apply to the Court for substitution of
Arbitrator.
It is, in the wake of this communication, the reliefs are sought in
the present Applications.
4] The learned counsel Mr. Oberoi would vehemently oppose the
prayer in the applications and he would specifically blame the
opponent/Applicant for the delay in taking appropriate steps and his
further objection is that the Application is not filed in two arbitral
proceedings, but it pertains to only one of the proceedings, and
therefore there cannot be any automatic substitution in the other
proceedings.
5] In the order passed on 12.02.2018, when the Arbitrator was
granted 12 months extension to complete the arbitration proceedings, it
was made clear that the order shall govern three arbitration
proceedings, which were pending before the arbitral tribunal.
(10-11)ARBAP-62-65.doc
When the subsequent extension came to be granted on two
occasions by this Court, the arbitration proceedings were continued by
the Arbitrator based on these orders. Ultimately when the Arbitrator
addressed a communication, when he specifically make reference to
two arbitration proceedings and the present Applications are filed in
respect of these two proceedings.
6] It is also specific contention of Mr. Oberoi that the order granting
extension is not applicable to the three companies, as they are three
distinct entities.
I have recorded the contention of the learned counsel, who has
appeared OnLline and he is insisting upon recording his objections and
he also specifically asserted that, if the Court is not recording his
contentions then he will have to leave the meeting. When the order is
being dictated he has conveniently chosen not to hear, his specific
contention being recorded and dealt with by the Court and I do not
deem to indulge him any further.
7] In the wake of the fact that three proceeding before the Arbitrator
were proceeding hand in hand and when the extension was sought and
granted by two orders of this Court, it was presumably for both the
Arbitral proceedings and that if the specific reason that when the
(10-11)ARBAP-62-65.doc
Arbitrator recused himself, he made a specific mention of the two
Arbitral proceedings before him.
8] In the wake of aforesaid, since I do not find merit and substance
in the submission of Mr. Oberoi that there is delay in conduct of the
arbitral proceedings as the period of exclusion as indicated by the Apex
Court in the SuoMoto Petition was beyond the control of any of the
parties and it is recently i.e. in the month of August 2023, the Arbitrator
has clearly indicated to the parties about his recusal, I deem it
appropriate to substitute the Arbitrator, to continue with the two arbitral
proceedings pending before me.
Advocate Mr. Rohan Kelkar is appointed as a substitute
Arbitrator. He shall conduct the proceedings de novo as if he is
entering the reference for the first time.
In the wake of the above, Advocate Rohan Kelkar is appointed as
Sole Arbitrator to adjudicate the disputes and differences that have
arisen between the applicant and the respondent.
The Arbitrator shall, within a period of 15 days before entering the
arbitration reference forward a statement of disclosure as contemplated
u/s.11(8) r/w Section 12 of the Arbitration and Conciliation Act, 1996, to
the Prothonotary and Senior Master of this Court to be placed on
record.
(10-11)ARBAP-62-65.doc
The Arbitrator, shall after entering the reference fix the date of
first hearing in the week commencing from 29/1/2024 and issue further
directions as are necessary.
The Sole Arbitrator shall be entitled for the fees as per 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.
All rights and contentions of the parties are kept open.
Arbitration Application Nos.62 of 2022 and 65 of 2022, stand
disposed off in the aforesaid terms.
[BHARATI DANGRE, J]
