Delhi High Court
Tecnimont Spa & Anr. vs National Fertilizers Limited on 14 December, 2018
$~52
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 14.12.2018
+ O.M.P.(MISC.)(COMM.) 260/2018
TECNIMONT SPA & ANR. ..... Petitioners
Through Mr. Sanjeev Kapoor, Mr. Gaurav
Juneja and Mr. Aayush Jain, Advs.
versus
NATIONAL FERTILIZERS LIMITED ..... Respondent
Through Mr. Divjyot Singh, Ms. Avsi M.
Sharma, Mr. Rakesh Gogia and Mr.
Hemant Kothari, Advs. alongwith Mr.
J. Chopra, DGM, Project.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J. (ORAL)
1. This is a petition filed under Section 29A(5) of the Arbitration and
Conciliation Act, 1996 (for short „1996 Act‟).
2. In this petition, notice was issued on 20.9.2018. Notice was made
returnable on 23.10.2018.
3. On 23.10.2018, I was informed by the counsel for the petitioners that
a similar application for extension of time had been moved before the
Supreme Court as the Arbitrator had been appointed in a Section 11 petition
filed before that Court.
4. In these circumstances, I had disposed of the captioned petition for the
reason that a parallel petition for the same relief could not be maintained in
this Court.
5. I am informed that the petitioners‟ application, i.e. M.A. 2743/2018
for extension of time came up before the Supreme Court on 30.11.2018.
6. The Court after noting the order passed by me on 23.10.2018 set aside
the order as the petitioners by consent decided to withdraw their application
and renew their request for extension of time in the instant petition.
7. The operative directions issued by the Supreme Court are as follows:
"...Dr. A.M. Singhvi, learned counsel for the petitioners submits
that the petitioners be allowed to withdraw the present petition
and renew the request as was made originally before the High
Court in OMP (Misc.)(Comm.) No.260 of 2018.
Since the petitioners are withdrawing the present petition, and
would now be approaching the High Court, by consent of the
parties, we set aside the order dated 23.10.2018 and restore the
OMP (Misc.)(Comm.) No.260 of 2018 to the file of the High
Court.
Let the parties appear before the High Court on 14.12.2018.
It is made clear that we have not expressed any opinion on the
merits or demerits of the matter nor have we dealt with any
allegation/counter allegation made by the parties. ..."
8. The record shows that the respondent prior to the order passed
by me, dated 23.10.2018, had filed a reply in the matter.
8.1 A perusal of the reply shows that the respondent is resisting the
extension of time, principally, on account of exchange that occurred
between the representatives of petitioner no.1 and the respondent at a
meeting held on 25.9.2018.
8.2 It is the admitted case of parties before me that this meeting was
held amongst the representatives of the parties to inter alia explore the
possibility of settling the dispute amicably.
8.3 It is the respondent‟s contention that on that date i.e. 25.9.2018,
assertions were made by the representative of the petitioner no.1, Mr.
Fabio Fagioli, broadly to the effect that the amount offered by the
respondent was low and that he would be able to obtain twice the
amount in the arbitration proceedings.
8.4 It is also the respondent‟s assertions that Mr. Fagioli had
indicated that he had sway over the learned Arbitrator.
8.5 The petitioners have filed not only a rejoinder denying these
assertions made on behalf of the respondent but have also filed an
affidavit of Mr. Fagioli.
8.6 The affidavit filed by Mr. Fagioli outrightly denies the assertion
made by the respondent that he had any influence over the learned
Arbitrator.
8.7 Furthermore, Mr. Fagioli asserts that what he intended to convey
was that the offer of the respondent was too low and that in a contested
arbitration proceedings the petitioners would be able to secure an
amount which was twice the figure offered by the respondent by way
of settlement.
9. The narration of events in the pleadings would show that the
respondent‟s real objection is not to the extension of time but qua
continuation of the proceedings before the incumbent Arbitrator.
10. I have examined the reply filed by the respondent and, in
particular, the aforesaid objection taken therein, the rejoinder and also
the affidavit of Mr. Fagioli.
11. A perusal of the aforesaid material would show that there are
assertions and counter assertions. There is nothing available on record
which would suggest that the petitioners have a overarching influence
on the learned Arbitrator as suggested on behalf of the respondent.
12. Statements, which are not backed by at least some prima facie
material, in my view, cannot be used to delay arbitration proceedings
or seek issuance of directions for substitution of the Arbitrator.
13. Therefore, the submission of the learned counsel for the
respondent, which is, that if, extension is to be granted, the incumbent
Arbitrator ought to be substituted, cannot be entertained.
14. Insofar as the prayer for extension is concerned, it is not
disputed by the counsel for the parties that the learned Arbitrator was
appointed by the Supreme Court, as indicated above, in a Section 11
proceedings.
14.1 The order to that effect was passed on 9.12.2016.
15. The learned Arbitrator upon receiving a copy of the order dated
16.12.2016, addressed a letter dated 27.1.2017 to the parties conveying
the directions of the Supreme Court.
16. Learned counsel for the respondent concedes that on 15.2.2017,
parties mutually agreed to extend the statutory period of twelve (12)
months by a further period of six (6) months.
17. It is also not disputed by counsel for the parties that apart from
the meeting dated 25.9.2018 to which I have made a reference above,
there were three other meetings held prior to that date for exploring a
possibility of parties reaching a settlement in the matter. These
meetings were held on 30.5.2018, 4.9.2018 and 17.9.2018.
18. I am informed by counsel for the parties that the matter before
the learned Arbitrator is positioned at the stage of evidence.
19. Thus, having regard to the time and money invested by the
parties and for the foregoing reasons, I am inclined to extend the time
for concluding the arbitration proceedings by another twelve (12)
months commencing from 17.06.2018.
20. The petition is disposed of in the aforesaid terms.
RAJIV SHAKDHER, J
DECEMBER 14, 2018
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