Bhanu Farms Limited vs Sbi General Insurance Company Ltd
2023 Latest Caselaw 3177 Cal/2

OCD-27
                               ORDER SHEET

                                AP/786/2023

                     IN THE HIGH COURT AT CALCUTTA
                      Ordinary Original Civil Jurisdiction
                               ORIGINAL SIDE
                            (Commercial Division)


                        BHANU FARMS LIMITED
                                Versus
                 SBI GENERAL INSURANCE COMPANY LTD.


  BEFORE:
  The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
  Date : 20th November, 2023.

                                                                      Appearance:
                                                               Mr. Sudip Deb, Adv.
                                                       Mr. Meghajit Mukherjee, Adv.
                                                        Mr. Debdut Mukherjee, Adv.
                                                                ...for the petitioner

                                                          Ms. Trisha Mukherjee, Adv.
                                                      Mr. Chetan Kumar Kabra, Adv.
                                                                 ...for the respondent

The Court: The petitioner seeks reconstitution of the Arbitral Tribunal for

adjudicating the disputes and differences which have arisen between the

parties on the ground that the mandate of the learned Arbitrator terminated on

27th February, 2023. The date is given in accordance with Section 29-A(1) of

the 1996 Act with regard to 12 month from the date of completion of pleadings.

Learned counsel appearing for the petitioner submits that the petitioner

is entitled to have the Arbitrator substituted both under Sections 14 and 15 of

The Arbitration and Conciliation Act, 1996 as well as under Section 29-A(6)

after termination of the mandate.

The advocate-on-record of the respondent places a letter dated 29th

March, 2023 from the respondent which records that the respondent consented

to extension of the mandate for six months from 28th February, 2023. This

letter is disputed by the petitioner on the ground that the petitioner did not

receive this letter.

First and foremost, it is arguable whether the respondent could have

extended the mandate post-facto i.e. by way of a letter dated 29th March, 2023

which was intended to have effect from 28th February, 2023.

In any event, the mandate of the Arbitrator terminated on and from 27th

February, 2023 without the consent of the respondent. Even if the respondent's

consent is accepted, the mandate would have terminated on 28th August, 2023.

The petitioner under any of these circumstances is entitled to substitute the

Arbitrator under Sections 14 and 15 of the Act.

The petitioner relies on Swadesh Kumar Agarwal vs. Dinesh Kumar

Agarwal, (2022) 10 SCC 235, a Co-ordinate Bench judgment in Gammon

Engineers and Contractors Pvt. Ltd. v. State of West Bengal, 2023 SCC OnLine

Cal 2326 and a judgment delivered by this Court in Rohan Builders (India) Pvt.

Ltd. v. Berger Paints India Limited, 2023 SCC OnLine Cal 2645 to buttress his

contention.

Section 14(1)(a) of the 1996 Act declares that the mandate of an

Arbitrator shall terminate and the Arbitrator shall be substituted if the

Arbitrator becomes de jure or de facto unable to perform his functions. Since

the Arbitrator's mandate has terminated, the petitioner is entitled to have a

new Arbitrator in place and stead of the earlier learned Arbitrator.

AP/786/2023 is accordingly allowed and disposed of by appointing Mr.

Sanjib Banerjee, former Chief Justice of the Madras and Meghalaya High

Courts, to act as the Arbitrator subject to the learned Arbitrator

communicating his consent in the prescribed format to the Registrar, Original

Side of this Court within three weeks from date.

The petitioner's advocate-on-record shall communicate this order on the

learned Arbitrator by 22nd November, 2023 along with the requisite details of

the contact person of the petitioner.

The learned Arbitrator is requested to continue with the arbitration from

the stage at which the arbitration was discontinued subject to the agreement of

the parties.

(MOUSHUMI BHATTACHARYA, J.)

R.Bhar