Ms Gd Engineering Construction vs The Union Of India
2023 Latest Caselaw 438 Gua

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GAHC010016982023




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : CRP/13/2023

            MS GD ENGINEERING CONSTRUCTION
            PROPRIETOR GHANSHYAM DAS DHIMAN PO HALLESWAR TEZPUR 784001



            VERSUS

            THE UNION OF INDIA
            THROUGH THE SECRETARY MINISTRY OF DEFENCE, NEW DELHI 10

            2:THE GARRISON ENGINEER
            AIR FORCE
            TEZPUR 784104

            3:MRS NAYAN SHARMA
             SOLE ARBITRATOR
             96 BORTHAKUR MILL ROAD
             GUWAHATI 78100

Advocate for the Petitioner   : PETITIONER IN PERSON

Advocate for the Respondent : DY.S.G.I.




                                   BEFORE
                     HONOURABLE MR. JUSTICE AJIT BORTHAKUR

                                          ORDER

08.02.2023

Heard Mr. G.D. Dhiman, the petitioner in person as well as Mr. H. Gupta, Page No.# 2/5

learned Central Government Standing Counsel appearing for the respondents No. 1 and 2/Ministry of Defence, Government of India.

2. The petitioner in person has filed copy of the documents as required by order, dated 02.02.2023 supported by an affidavit.

3. This petition under Article 227 of the Constitution of India read with Section 115 of the Code of Civil Procedure (for short 'CPC') has been filed for setting aside the impugned order, dated 22.03.2022 and for review of the order, dated 22.11.2022, passed in T.S. (Arb) Case No. 1/2019 and in Misc. (J) Case No. 18/2022 by the learned District Judge, Sonitpur at Tezpur.

4. The case of the petitioner is that sole Arbitrator was appointed by this Court on 20.07.2017 under Section 11(6) of the Arbitration and Conciliation Act, 1996 for resolution of the disputes between the applicant and the respondents herein. However, subsequently, the said Arbitrator retired on health ground and in his place another sole Arbitrator was appointed on 05.02.2018 against Arbitration Petition No. 13/2016 to deliver the Arbitral Award within a period of 1(one) year. As the arbitration proceeding could not be completed, the parties extended the time for 6(six) months, which expired on 03.08.2019. However, the learned District Judge, Sonitpur by the impugned judgment and order, dated 22.03.2022 extended the period of sole arbitrator for a maximum period of 1(one) year under Section 29(A)(4) of the Arbitration and Conciliation Act, 1996. Against the aforesaid order, being aggrieved, the petitioner filed a petition praying for review of the aforesaid judgment and order, dated 22.03.2022 under Order 47 read with Section 151 of the CPC, which was dismissed on merit vide order, dated 22.11.2022, passed in Misc. (J) Case No. 18/2022.

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5. Mr. G.D. Dhiman, the petitioner in person, submits that the sole Arbitrator having been unable to deliver the Award within the aforesaid extended period of 6 months was liable to be terminated as she had become de jure and de facto unable to perform her function, but the learned District Judge extended the term by 1(one) year beyond the aforesaid extended period of 6(six) months in contravention of the mandate of the Hon'ble Supreme Court laid down in N.B.C.C. Ltd. Vs. J.G. Engineering Pvt. Ltd. in Civil Appeal No. 8/2010 and of this Court rendered in State of Arunachal Pradesh Vs. Subhash Projects, reported in 2006 (3) GLR 939 as well as Section 29-A(5) of the Arbitration and Conciliation Act, 1996. Mr. Dhiman further submits that none of the parties had applied for extension of tenure of the sole Arbitrator and as such, the aforesaid impugned orders may be set aside and the sole Arbitrator may be terminated

6. Mr. H. Gupta, learned Central Government Standing Counsel appearing for the respondents No. 1 and 2, submits that under Section 29-A of the Arbitration and Conciliation Act, 1996, the Award by Arbitral Tribunal is required to be made within a period of 12(twelve) months from the date of completion of pleadings under Section 23(4) of the said Act and under Sub- Section 3, the parties may by consent extend the aforesaid period of 1(one) year for a further period not exceeding 6(six) months which may, however, be extended by the Court under Sub-Section 4. Mr. Gupta, learned CGSC, further submits that under Sub-Section 5 of Section 29-A the extension of the period referred to in the aforesaid Sub-Section 4 may be made on the application of any of the parties by the Court. Mr. Gupta submits that the issue in the instant petition is whether the Court can extend the period of the Arbitral Tribunal.

7. I have given due consideration to the above submissions made by the Page No.# 4/5

learned counsel for both the parties.

8. Section 29-A of the Arbitration and Conciliation Act, 1996 reads as hereinbelow extracted-

"29A.Time limit for arbitral award.--2[(1) The award in matters other than international commercial arbitration shall be made by the arbitral tribunal within a period of twelve months from the date of completion of pleadings under sub-section (4) of section 23:

Provided that the award in the matter of international commercial arbitration may be made as expeditiously as possible and endeavor may be made to dispose of the matter within a period of twelve months from the date of completion of pleadings under sub-section (4) of section 23.] (2) If the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree.

(3) The parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months.

(4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period:

Provided that while extending the period under this sub-section, if the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent. for each month of such delay.

[Provided further that where an application under sub-section (5) is pending, the mandate of the arbitrator shall continue till the disposal of the said application:

Provided also that the arbitrator shall be given an opportunity of being heard before the fees is reduced.]

(5) The extension of period referred to in sub-section (4) may be on the application of any of the parties and may be granted only for sufficient cause and on such terms and conditions as may be imposed by the Court.

(6) While extending the period referred to in sub-section (4), it shall be open to the Court to substitute one or all of the arbitrators and if one or all of the arbitrators are substituted, the arbitral proceedings shall continue from the stage already reached and on the basis of the evidence and material already on record, and the arbitrator(s) appointed under this section shall be deemed to have received the said evidence and material.

(7) In the event of arbitrator(s) being appointed under this section, the arbitral tribunal thus reconstituted shall be deemed to be in continuation of the previously appointed arbitral tribunal.

(8) It shall be open to the Court to impose actual or exemplary costs upon any of the parties Page No.# 5/5

under this section.

9) An application filed under sub-section (5) shall be disposed of by the Court as expeditiously as possible and endeavour shall be made to dispose of the matter within a period of sixty days from the date of service of notice on the opposite party."

9. In view of the submission of the petitioner in person that none of the parties had been seeking extension of the term of the Arbitral Tribunal, as such, the impugned orders are liable to be set aside, this Court finds it expedient to look into the Arbitration Agreement entered into between the parties- copy of which is not annexed with the petition.

10. Accordingly, the petitioner in person may file an affidavit annexing therewith a copy of the Arbitration Agreement under Section 7 of Arbitration and Conciliation Act, 1996 so as to enable this Court to ascertain its attributes for a just decision in the instant petition with reference to Section 14 of the said Act.

List in the next week.

JUDGE

Anupam

Comparing Assistant