Aatash Norcontrol Limited vs Gujarat Maritime Board
2023 Latest Caselaw 4391 Guj

      C/ARBI.P/171/2022                            ORDER DATED: 13/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/PETN. UNDER ARBITRATION ACT NO. 171 of 2022

                              With
 CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2023
        In R/PETN. UNDER ARBITRATION ACT NO. 171 of 2022
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                          AATASH NORCONTROL LIMITED
                                    Versus
                            GUJARAT MARITIME BOARD
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Appearance:
ADITYA A GUPTA(7875) for the Petitioner(s) No. 1
G H VIRK(7392) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                               Date : 13/06/2023

                                 ORAL ORDER

1. By way of present petition, the petitioner herein has prayed to extend the time-limit of the arbitration proceedings between the petitioner and the respondents by 9 months with effect from 14.12.2022 under Section 29A(4) and Section 29A(5) of the Arbitration & Conciliation Act, 1996 (for short 'the Act, 1996'). Undisputedly, the dispute-in-question is with respect to Part - I of the Act, 1996.

2. The brief facts leading to the filing of the present petition read thus:

2.1 It is the case of the petitioner herein that, due to disputes between the petitioner and the respondents arising out of the concession agreement dated 30.09.2007, the petitioner was

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constrained to invoke the arbitration clause No.18 of the concession agreement dated 30.09.2007 vide notice dated 15.01.2019 nominating Shri Mihir Thakore, Senior Advocate as an arbitrator.

2.2 That, the respondents nominated Hon'ble Justice D.A. Mehta, Retired Judge, High Court of Gujarat as an arbitrator vide notice dated 13.02.2019. Both the nominees in turn appointed Hon'ble Justice K.S. Radhakrishnan, Retired Judge, Supreme Court of India as the umpire. That, upon constitution of the panel on 01.03.2019, the first meeting was held on 08.03.2019 wherein, it was recorded that the matter is likely to take more than one year considering the volume of work involved and hence, it was agreed to extend a further period of six months as provided under Section 29A(3) of the Act, 1996 for completion of the arbitration proceedings. A copy of the said order dated 08.03.2019 is duly produced at Annexure - A to the petition.

2.3 That, the pleadings came to be completed on 02.07.2019. On completion of the pleadings, issues came to be framed on 02.10.2019. That, due to Covid-19 pandemic, it was not possible to lead evidence and therefore, the leading of evidence came to be deferred. The Tribunal by order dated 28.10.2021 directed the parties to file their affidavit of evidence on or before 15.12.2021 and further fixed 17.02.2022, 18.02.2022 and 19.02.2022 as dates for conduct cross-examination. A copy of the said order dated 28.10.2021 is duly produced at Annexure - D to the petition.

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2.4 That, the claimant indicated its readiness to file the affidavit of evidence of its witnesses on 12.01.2022, however, the respondent sought time to file affidavit of evidence of its witnesses on account of the Covid-19 pandemic. Considering the aforesaid, the Tribunal granted further 9 weeks to the respondent - Gujarat Maritime Board (for short 'respondent - GMB') vide E-mail dated 15.02.2022. By procedural order Nos.18 and 19 dated 27.06.2022, the Tribunal denied the request of the respondent - GMB to defer the arbitration proceedings and directed the parties to file their affidavit of evidence on or before 27.07.2022. That, for the purpose of cross examination, the dates fixed by the Tribunal were 19.08.2022, 20.08.2022, 26.08.2022 and 27.08.2022.

2.5 That, the respondent - GMB vide E-mail dated 02.08.2022, requested to defer the cross-examination of the witnesses of the petitioner on 19.08.2022 and 20.08.2022 in view of the difficulty in obtaining instructions on account of holidays. That, the petitioner opposed such request and insisted that the pending interim application may be taken up for hearing on 19.08.2022 and 20.08.2022.

2.6 That, on 18.08.2022, the nominee of the respondent - GMB being Hon'ble Justice D.A. Mehta, Retired Judge, High Court of Gujarat, sent a letter dated 17.08.2022 stating that due to personal reasons, he was not in a position to continue as an arbitrator in the proceedings and therefore, the said nominee withdrew his consent given to the respondent to act as an arbitrator. That, due to the aforesaid development, the sittings fixed on 20.08.2022, 26.08.2022 and 27.08.2022 had

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to be cancelled.

2.7 That, the respondent - GMB thereafter, nominated Hon'ble Justice K.S. Jhaveri, former Chief Justice of Orissa High Court to act as an arbitrator. That, the Tribunal met on 12.10.2022 and fixed several dates in the month of December and January viz. 19.12.2022, 20.12.2022, 21.12.2022, 16.01.2023, 17.01.2023 and 18.01.2023 for the purpose of cross-examination of witnesses. That, the pleadings came to be completed on 02.07.2019. That, on counting of time from 02.07.2019, the time of 12 months expired on 01.07.2020 however, the time from 15.03.2020 up to 28.02.2022 has been excluded as per the order dated 10.01.2022 passed by the Hon'ble Supreme Court. The time elapsed from 02.07.2019 till 15.03.2020 is 7.5 months. The time from 15.03.2020 till 28.02.2022 has to be excluded. The time of 12 months expired on or around 15.06.2022. Since the parties had agreed to extend the time by 6 months by consent, the 6 months would expire on 14.12.2022.

2.8 In view of the aforesaid facts, the petitioner herein has approached this Court by preferring the present petition under Section 29A of the Arbitration & Conciliation Act, 1996, seeking following reliefs:

"A. YOUR LORDSHIPS BE pleased to extend the time-limit of the arbitration proceedings between the petitioner and the respondents by 9 months with effect from 14.12.2022 under Section 29A(4) and Section 29A(5) of the Arbitration & Conciliation Act, 1996 in the interest of justice;

B. YOUR LORDSHIPS BE pleased to pass such other and further orders as may be deemed fit in the interest of justice."

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3. Heard Mr. Saurabh Soparkar, learned Senior Counsel with Mr. Unmesh Shukla, learned Senior Counsel assisted by Mr. Aditya Gupta, learned advocate appearing for the petitioner and Mr. Kamal Trivedi, learned Senior Counsel assisted by Mr. G.H. Virk, learned advocate with Mr. Prashanth S. Undurthi, learned advocate with Mr. Shayamal Bhimani, learned advocate appearing for the respondent No.1- GMB.

4. Mr. S.N. Soparkar, learned Senior Counsel appearing for the petitioner, submitted that the time may be extended by 9 months on account of the following reasons:

I. That, several interim applications filed by the parties are pending for consideration and disposal before the Arbitral Tribunal.

II. That, the respondent - GMB has to cross - examine 2 witnesses of the petitioner whereas the petitioner has to cross-examine 5 witnesses of the respondent - GMB. Further, the petitioner also intends to summon witnesses therefore, the said process would consume a lot of time.

III. That, as the record is bulky and runs into thousands of pages, final hearing and passing of the award would also take considerable length of time.

4.1 Mr. S.N. Soparkar, learned Senior Counsel, appearing for the petitioner, submitted that the "Court" as defined under Section 2(1)(e) of the Act starts with the words "in his part, unless the context otherwise requires" which means that if the

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context requires otherwise, then the word "Court" may not necessarily be the Court as defined under Section 2(1)(e), but shall be the High Court.

4.2 Mr. S.N. Soparkar, learned Senior Counsel, submitted that the context of Section 29A(4) requires that the word "Court" has to mean the High Court and Section 29A(6) contemplates that while extending the time limit under sub section (4), the Court has the power to substitute one or all of the arbitrators and therefore, as a necessary corollary, the Court substituting the arbitrator should have the power the appoint an arbitrator.

4.3 Mr. Soparkar, learned Senior Counsel, further submitted that the power to appoint an arbitrator is conferred under Section 11 of the Arbitration and Conciliation Act, 1996 only on the High Court. The District Court is not conferred with the power of substitution under Section 29A(6) as it does not have the power to appoint an arbitrator under Section 11 and therefore, the word "Court" can only mean the High Court.

4.4 Mr. S.N. Soparkar, learned Senior Counsel, placed reliance on the following decisions:

I. Misc. Civil Application No.1 of 2018 in Arbitration Petition No.56 of 2016 in case of Nilesh Ramanbhai Patel Vs. Bhanubhai Ramanbhai Patel II. Arbitration Petition No.68 of 2020 in case of M/s.

Magirsha Industries Vs. M/s. Gujarat State Fertilizer & Chemicals Ltd.

III. 2019 SCC Online Bom 1437 in case of Cabra

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Instalaciones Y. Servicios, S.A. Vs. Maharashtra State Electricity Distribution Co. Ltd.

IV. 2020 SCC Online Del 2501 in case of DDA Vs. Tara Chand Sumit Construction Co.

V. 2020 SCC Online Ker 21443 in case of Lots Shipping Company Limited Vs. Cochin Port Trust VI. 2021 SCC Online Cal 2174 in case of Amit Kumar Gupta Vs. Dipak Prasad VII. Arbitration and Conciliation Application u/s 11(4) No.5 of 2022 in case of Indian Farmers Fertilizers Cooperative Ltd. Vs. M/s. Manish Engineering Enterprises VIII.OMP(Misc.) (Comm) 256 of 2019, I.A. 4989 of 2020 in case of ONGC Petro Additions Ltd. Vs. Ferns Construction Co. Inc IX. Arbitration Petition No.28 of 2020 in case of M/s. Sara International Pvt. Ltd. Vs.South Eastern Railways & Another X. 2023 SCC Online SC 23 in case of Tata Sons Pvt. Ltd.

Vs. Siva Industries and Holdings Ltd. & Ors. XI. 2022 SCC Online Ker 3459 in case of Flemingo Duty Free Shop Pvt. Ltd. Vs. Airports Authority of India.

4.5 Placing reliance on the aforesaid submissions, Mr. Soparkar, learned Senior Counsel, submitted that the present petition be allowed.

5. The aforesaid submission made by Mr. Soparkar, learned Senior Counsel, seeking extension of time came to be controverted by Mr. Kamal Trivedi, learned Senior Counsel

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appearing for the respondent - GMB and raised preliminary objection as to maintainability of the present petition on the following grounds:

I. Reliance was placed on Section 29A of the Arbitration & Conciliation Act, 1996. Placing reliance on the same, it was submitted that Section 29A(4) of the Act, mandates that "the Tribunal shall terminate unless the Court has, either prior to or after expiry of the period so specified, extended the period, subject to, inter-alia, the second proviso to Section 29A(4) of the Act."

II. Reliance was placed on Section 2(1)(e) of the Act, which defines "Court." Placing reliance on the same, it was submitted that as the facts of the present petition are governed by part-I of the Act, considering the same, this Court does not have jurisdiction (ordinary original civil jurisdiction). It was submitted that an application under Section 29A of the Act for an arbitration which is a matter other than international commercial arbitration, would lie before the Principal Civil Court of the jurisdictional district having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of the suit.

III. It was submitted that in the facts of the present case, the arbitration, which is the subject matter of the captioned petition, neither the party approached this

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Court seeking appointment of either the nominee Arbitrator(s) or the Presiding Arbitrator; and, as such, this Court has not exercised its jurisdiction under Section 11 of the Act for the appointment of any of the Arbitrator(s) in the subject arbitration.

5.1 In view of the aforesaid, Mr. Trivedi, learned Senior Counsel appearing for the respondent - GMB submitted that this Court may not entertain the present petition on the aforesaid ground alone.

5.2 Mr. Trivedi, learned Senior Counsel, also placed reliance on the tabulation which was produced along with the affidavit wherein, it was submitted that the delay of 668 days was attributable to the petitioner herein.

5.3 Mr. Trivedi, learned Senior Counsel, further submitted that the certain proceedings under the provisions of Section 13 read with Section 12 of the Act, which were initiated before the Arbitral Tribunal, after hearing the parties on 16.01.2023, the same has been decided by three separate orders dated 18.02.2023. Placing reliance on the same, Mr. Trivedi, learned Senior Counsel, submitted that the petition be dismissed and the petitioner be relegated to avail the remedy before the Principal Civil Judge under the provisions of Section 29A(4) of the Act.

5.4 Mr. Kamal Trivedi, learned Senior Counsel has placed reliance on the following decisions:

I. 2020 SCC Online Kerala 23002 in case of Ekk and Co.

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Rep. By its Managing Partner, Sanju Mohammed and Ors. Vs. State of Kerala Rep. By the Secretary to the Government and Anr.;

II. (2015) 1 SCC 32 in case of State of West Bengal and Ors. Vs. Associated Contractors;

III. 2017 SCC Online Kerala 20520 in case of M/s. URC Construction Pvt. Ltd. Vs. M/s. BEML Ltd.; IV. 2019 SCC Online All 4369 in case of Lucknow Agencies Lko. through Sole Properietor & Anr. Vs. U.P. Avas Vikas Parishad through Housing Commissioner Lko. & Ors.;

V. (2023) 1 SCC 549 in case of Jaycee Housing Pvt. Ltd.

& Ors. Vs. Registrar (General), Orissa High Court, Cuttack & Ors..

Analysis

6. Having heard the learned Senior Counsels appearing for the respective parties, following emerge for the consideration of this Court:

6.1 The dispute arose between the petitioner and the respondent arising out of the concession agreement dated 30.09.2007 and the petitioner invoked the arbitration clause No.18 of the said concession agreement.

6.2 The petitioner herein has filed the present petition seeking extension of time limit of arbitration proceedings between the petitioner and the respondent by 9 months with effect from 14.12.2022 under Section 29A(4) and Section

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29A(5) of the Arbitration & Conciliation Act, 1996.

6.3 Admittedly, the arbitration proceedings in question is not an "international commercial arbitration" as defined in Section 2(f) of the Act. Consequently, the arbitration in question is domestic arbitration; or; as Section 29A of the Act identifies such arbitrations - a "matter other than international commercial arbitration."

7. Considering the submission advanced by Mr. Soparkar, learned Senior Counsel that this Court has jurisdiction to decide the dispute-in-question and considering the decisions relied upon by the respective parties, it is apposite to refer to Section 2(1)(e) of the Arbitration & Conciliation Act, 1996, which defines the "Court" as under:

"(e) "Court" means--

(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;

(ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court;]"

7.1 Section 29A of the Arbitration & Conciliation Act, 1996, reads thus:

"[29A.Time limit for arbitral award.-- [(1)The award in matters other than international commercial arbitration shall be made

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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. 3

[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

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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 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."

7.2 On conjoint reading of the aforesaid provisions, the question arises whether this Court has the jurisdiction to extend the period for completion of arbitration under Section 29A of the Act, 1996.

7.3 Undisputedly, the appointment of the Arbitrator in the facts of the present case, was not under Section 11 of the Arbitration and Conciliation Act, 1996. The nomination of the Arbitrator(s) was by the parties, in accordance with the terms of the arbitration agreement, which mandated each party to appoint an Arbitrator and the nominees of both the parties in turn, appointed the umpire as the presiding Arbitrator. It is also undisputed that the first extension of six months under the provision of Section 29(2) and Section 29(3) of the Act, 1996 has been granted by the Arbitral Tribunal on 08.03.2019.

The Court as defined in Section 2(1)(e) of the Act, 1996 is the Principal Civil Court having jurisdiction to entertain the application for appointment of the Arbitrator as the Court of original jurisdiction.

8. This Court deems it fit to deal with the position of law as referred to by Mr. S.N. Soparkar, learned Senior Counsel appearing for the petitioner herein.

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(a) Misc. Civil Application No.1 of 2018 in Arbitration Petition No.56 of 2016; Nilesh Ramanbhai Patel Vs. Bhanubhai Ramanbhai Patel.

In the aforesaid case, Arbitrator came to be appointed by this Court under Section 11 of the Arbitration and Conciliation Act, 1996 by order dated 17.03.2017. Misc. Civil Application for extension of time came to be filed by the petitioners.

(b) Arbitration Petition No.68 of 2020; M/s. Magirsha Industries Vs. M/s. Gujarat State Fertilizer & Chemicals Ltd.

In the aforesaid case, reliance was placed on the order dated 14.09.2018 passed by this Court in Misc. Civil Application (OJ) No.1 of 2018 in Arbitration Petition No.56 of 2016 as referred above. The appointment of Arbitrator was not by the parties but by MSME Council under Section 18 of the MSME Act, 2006.

(c) 2019 SCC Online Bom 1437; Cabra Instalaciones Y.

Servicios, S.A. Vs. Maharashtra State Electricity Distribution Co. Ltd.

In the aforesaid case, the Arbitrator was appointed under Section 11 by the Hon'ble Supreme Court as it was an international commercial arbitration. Section 29A application was dismissed observing that since the arbitrator was appointed by the Hon'ble Supreme Court,

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the applicant would have to approach the Hon'ble Supreme court for extension of time since in international commercial arbitrations, only the Hon'ble Supreme Court has the power to appoint arbitrators.

(d) 2020 SCC Online Del 2501; DDA Vs. Tara Chand Sumit Construction Co.

In the aforesaid case, the Hon'ble Delhi High Court, has itself carved out the distinction in cases where the learned Arbitrator is appointed under Section 11 of the Act and in contrast, where the learned Arbitrator is appointed by the parties without recourse of Section 11 of the Act. Paragraph 29 of the same reads thus:

"29. In case a petition under Section 29A of the Act is filed before the Principal Civil Court for extension of mandate and the occasion for substitution arises, then the Principal Civil Court will be called upon to exercise the power of substituting the Arbitrator. In a given case, the Arbitrator being substituted could be an Arbitrator who had been appointed by the Supreme Court or the High Court. This would lead to a situation where the conflict would arise between the power of superior Courts to appoint Arbitrators under Section 11 of the Act and those of the Civil Court to substitute those Arbitrators under Section 29A of the Act."

In the facts of the present case, no such conflict arises since the parties never approached this Court under Section 11 of the Act for an appointment of the Arbitrator.

(e) 2020 SCC Online Ker 21443; Lots Shipping Company Limited Vs. Cochin Port Trust.

The aforesaid decision of the Hon'ble Kerala High

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Court has been distinguished by a subsequent decision of the Hon'ble Kerala High Court in case of Ekk & Co. Vs. State of Kerala reported in 2020 SCC Online Ker 23002 wherein, it was held that it is the Principal Civil Court of original jurisdiction concerned that would have the power to extend the time for completion of the arbitration in the case.

(f) 2021 SCC Online Cal 2174; Amit Kumar Gupta Vs. Dipak Prasad.

In the aforesaid case, the petitioner approached the Hon'ble High Court under Section 11 of the Act, 1996 being Arbitration Petition No.239 of 2018 for constitution of the arbitral Tribunal.

(g) Arbitration and Conciliation Application u/s 11(4) No.5 of 2022; Indian Farmers Fertilizers Cooperative Ltd. Vs. M/s. Manish Engineering Enterprises.

In the aforesaid case, the High Court by exercising power under Section 11 of the Act, 1996, appointed the Arbitrator way back in the year 2014 and held that the application for extension of time for arbitral award moved under Section 29A is maintainable before the High Court.

(h) OMP(Misc.) (Comm) 256 of 2019, I.A. 4989 of 2020; ONGC Petro Additions Ltd. Vs. Ferns Construction Co. Inc.

In the aforesaid case, Hon'ble Delhi High Court held that there is no strict time line of 12 months prescribed to

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the proceedings which are in nature of international commercial arbitration as defined under the Act. It was further held that the provisions of Section 29A(1) shall be applicable to all pending arbitrations seated in India as on August 30, 2019 and commenced after October 23, 2015.

(i) Arbitration Petition No.28 of 2020; M/s. Sara International Pvt. Ltd. Vs.South Eastern Railways & Another.

In the aforesaid case, the petitioner appointed the Arbitrator. The respondents failed to appoint the Arbitrator which resulted in filing of Arbitration Petition No.63 of 2017 under Section 11(6) of the Act, 1996. The Arbitrator came to be appointed by the Hon'ble High Court. The application for extension of time came to be considered by the Hon'ble High Court. The same can be borne out from paragraph 2 of the order.

(j) 2023 SCC Online SC 23; Tata Sons Pvt. Ltd. Vs. Siva Industries and Holdings Ltd. & Ors.

In the aforesaid case, the Hon'ble Supreme Court has delat with the international commercial arbitration. Paragraph 36 and 37 of the said order reads thus:

"36. In Shapoorji Pallonji, the Delhi High Court had held that amended Section 29A(1) of the Arbitration and Conciliation Act, being procedural law, would apply to the pending arbitrations as on the date of the amendment. However, a coordinate bench in MBL Infrastructures Ltd v.

Rites Ltd.18 held that the amended Section 29A would be prospective in nature, without referring to the earlier order in Shapoorji Pallonji. Finally, the Delhi High Court in ONGC Petro Additions settled the controversy and reiterated the position of law as laid down in Shapoorji Pallonji. The Court, inter alia, stated that Section 29A(1) shall be applicable to all pending

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arbitrations seated in India as on August 30, 2019 and commenced after October 23, 2015, and there is no strict time line prescribed to the proceedings which are in nature of international commercial arbitration as defined under the Act, seated in India.

37. Consistent with the amended provisions of Section 29A, the sole arbitrator in the present case would be acting within his domain and jurisdiction to decide upon any further extension of time beyond what is originally stipulated at the meeting which was held on 21 March 2018. The sole arbitrator may issue appropriate procedural directions for extension of time while at the same time endeavoring an expeditious conclusion of the arbitration."

(k) 2022 SCC Online Ker 3459; Flemingo Duty Free Shop Pvt.

Ltd. Vs. Airports Authority of India.

In the aforesaid case, the petition was not decided on merits. In the opinion of this Court, the said order was not passed on the merits of the matter. Paragraphs 15, 16 and 17 of the said order reads thus:

"15. During the course of the arguments, a query was put to the learned Senior Counsel for the petitioner as to whether, if the Court is not inclined to accept the prayer for substitution, whether the petitioner is pursuing the prayer for extension of time. After obtaining instructions, the learned Senior Counsel submitted before the Court that, the petitioner is not seeking for extension of time without grant of the prayer for substitution of Arbitrator.

16. Having found that the petitioner is not entitled to seek for substitution alleging bias against the Arbitrator in this proceedings, and in the light of the stand adopted by the petitioner as noticed above, the question of consideration of extension of time for completion of the arbitral proceedings under Section 29A does not arise.

17. As noticed first above, the pleadings were completed on 14.09.2017. The one year period and the extendable period of six months are over as early as on 14.03.2019. There is no dispute between the parties that, if time is not extended in terms of Section 29A(4), the mandate of the Arbitrator has terminated. It is declared accordingly."

9. At this stage, it is apposite to refer to the ratio as laid

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down by the Hon'ble Supreme Court in case of State of West Bengal & Others Vs. Associated Contractors reported in (2015) 1 SCC 32 wherein, it has held in paragraphs 13 to 15 and 25(e) as under:

"13. It will be noticed that whereas the earlier definition contained in the 1940 Act spoke of any civil court, the definition in the 1996 Act fixes "court" to be the Principal Civil Court of original jurisdiction in a district or the High Court in exercise of its ordinary original civil jurisdiction. Section 2(1)(e) further goes on to say that a court would not include any civil court of a grade inferior to such Principal Civil Court, or a Small Causes Court.

14. It will be noticed that the definition is an exhaustive one as it uses the expression "means and includes". It is settled law that such definitions are meant to be exhaustive in nature - See P. Kasilingam & Ors. v. P.S.G. College of Technology & Ors., (1995) Suppl. 2 SCC 348 at para 19.

15. A recent judgment of this Hon'ble Court reported in Executive Engineer, Road Development Division No. III, Panvel & Anr. v. Atlanta Limited, AIR 2014 SC 1093 has taken the view that Section 2(1)(e) contains a scheme different from that contained in Section 15 of the Code of Civil Procedure. Section 15 requires all suits to be filed in the lowest grade of court. This Hon'ble Court has construed Section 2(1)(e) and said that where a High Court exercises ordinary original civil jurisdiction over a district, the High Court will have preference to the Principal Civil Court of original jurisdiction in that district. In that case, one of the parties moved an application under Section 34 before the District Judge, Thane. On the same day, the opposite party moved an application before the High Court of Bombay for setting aside some of the directions contained in the Award. In the circumstances, it was decided that the "Court" for the purpose of Section 42 would be the High Court and not the District Court. Several reasons were given for this. Firstly, the very inclusion of the High Court in the definition would be rendered nugatory if the above conclusion was not to be accepted, because the Principal Civil Court of original jurisdiction in a district is always a court lower in grade than the High Court, and such District Judge being lower in grade than the High Court would always exclude the High Court from adjudicating upon the matter. Secondly, the provisions of the Arbitration Act leave no room for any doubt that it is the superior most court exercising original jurisdiction which has been chosen to adjudicate disputes arising out of arbitration agreements. We respectfully concur with the reasoning contained in this judgment.

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25. Our conclusions therefore on Section 2(1)(e) and Section 42 of the Arbitration Act, 1996 are as follows:

(a) Section 2(1)(e) contains an exhaustive definition marking out only the Principal Civil Court of original jurisdiction in a district or a High Court having original civil jurisdiction in the State, and no other court as "court" for the purpose of Part-I of the Arbitration Act, 1996.

(b) The expression "with respect to an arbitration agreement" makes it clear that Section 42 will apply to all applications made whether before or during arbitral proceedings or after an Award is pronounced under Part-I of the 1996 Act.

(c) However, Section 42 only applies to applications made under Part-I if they are made to a court as defined. Since applications made under Section 8 are made to judicial authorities and since applications under Section 11 are made to the Chief Justice or his designate, the judicial authority and the Chief Justice or his designate not being court as defined, such applications would be outside Section 42.

(d) Section 9 applications being applications made to a court and Section 34 applications to set aside arbitral awards are applications which are within Section 42.

(e) In no circumstances can the Supreme Court be "court" for the purposes of Section 2(1)(e), and whether the Supreme Court does or does not retain seisin after appointing an Arbitrator, applications will follow the first application made before either a High Court having original jurisdiction in the State or a Principal Civil court having original jurisdiction in the district as the case may be.

(f) Section 42 will apply to applications made after the arbitral proceedings have come to an end provided they are made under Part-I.

(g) If a first application is made to a court which is neither a Principal Court of original jurisdiction in a district or a High Court exercising original jurisdiction in a State, such application not being to a court as defined would be outside Section 42. Also, an application made to a court without subject matter jurisdiction would be outside Section 42."

10. It is also apposite to refer to the ratio as laid down by the Hon'ble Supreme Court in case of State of Jharkhand & Ors. Vs. M/s. Hindustan Construction Co. Ltd. reported in AIR 2018 SC 1 wherein, it has held in parapgraphs 57, 58 and 60 as under:

"57. In Guru Nanak Foundation (supra), as noted earlier, the two-Judge Bench has distinguished the principle laid down in Garikapati Veeraya (supra) by stating that the door of this Court

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is not closed to the appellant. In fact, as has been stated, the door is being held wide ajar for him to raise all contentions which one can raise in a proceeding in an originating summons.

The aforesaid statement of law is not correct because the superior court is not expected in law to assume jurisdiction on the foundation that it is a higher court and further opining that all contentions are open. The legislature, in its wisdom, has provided an appeal under Section 39 of the Act. Solely because a superior court appoints the arbitrator or issues directions or has retained some control over the arbitrator by requiring him to file the award in this Court, it cannot be regarded as a court of first instance as that would go contrary to the definition of the term 'court' as used in the dictionary clause as well as in Section 31(4). Simply put, the principle is not acceptable because this Court cannot curtail the right of a litigant to prefer an appeal by stating that the doors are open to this Court and to consider it as if it is an original court. Original jurisdiction in this Court has to be vested in law. Unless it is so vested and the Court assumes, the court really scuttles the forum that has been provided by the legislature to a litigant. That apart, as we see, the said principle is also contrary to what has been stated in Kumbha Mawji. (AIR 1953 SC 313) It is worthy to note that this Court may make a reference to an arbitrator on consent but to hold it as a legal principle that it can also entertain objections as the original court will invite a fundamental fallacy pertaining to jurisdiction.

58. In Surjit Singh Atwal (supra), a three-Judge Bench had opined that applications under Section 8 and under Section 20, though clearly applications anterior to the reference, lead to a reference. Such applications are undoubtedly applications "in the matter of a reference" and may fall within the purview of Section 31(4) of the Act even though these applications are made before any reference has taken place. The purpose of referring to the said authority is that the principle stated in Kumbha Mawji (supra) has been elaborated in Surjit Singh Atwal (supra). It is to be borne in mind that the Court that has jurisdiction to entertain the first application is determinative by the fact as to which Court has the jurisdiction and retains the jurisdiction. In this regard, an example may be cited. When arbitrator is not appointed under the Act and the matter is challenged before the High Court or, for that matter, the Supreme Court and, eventually, an arbitrator is appointed and some directions are issued, it will be inappropriate and inapposite to say that the superior court has the jurisdiction to deal with the objections filed under Sections 30 and 33 of the Act. The jurisdiction of a Court conferred under a statute cannot be allowed to shift or become flexible because of a superior court's interference in the matter in a different manner.

60. Having so stated, we would have directed the matter to be listed before the appropriate Bench. But it is not necessary as we find the appellant-State has filed the objection before the Civil Court. If the objection of the State is not there on record,

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liberty is granted to the State as well as the respondent to file their respective objections within thirty days from today. The objections shall be decided on their own merits."

In the aforesaid decision, the Hon'ble Supreme Court held that the original jurisdiction in the Court has to be vested in law. Unless it is so vested and the Court assumes, the court really scuttles the forum that has been provided by the legislature to a litigant.

10.1 In the facts of the present case, the parties did not approach this Court under Section 11 of the Act for appointment of Arbitrator. In view of the aforesaid, the decisions as relied upon by the learned Senior Counsel appearing for the petitioner are the decisions wherein the parties approached the concerned High Court/s or the Hon'ble Supreme Court under Section 11 of the Act for an appointment of Arbitrator wherein the High Court/ Hon'ble Supreme Court extended the time having assumed the jurisdiction or the time came to be extended with the consent of the parties or one of the arbitrator was appointed by the High Court.

In the facts of the present case, there is no consent between the parties.

10.2 In view of the aforesaid discussion, this Court would not exercise its jurisdiction to extend the time limit when under the Act, it is only the Court of original jurisdiction which can extend the time for making the award.

11. Considering the aforesaid, this Court, without going into the merits with regard to the extension of time, deems it fit to

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relegate the petitioner herein to approach the Principal Civil Court having jurisdiction to extend the period for completion of the arbitration. In the facts of the present case, it is the Principal Civil Court of original jurisdiction concerned, that would have the power to extend the time for completion of the arbitration. Accordingly, while not entertaining the present petition, it is open for the petitioner herein to approach the Principal Civil Court of original jurisdiction praying for the reliefs as stated in the present petition.

12. With the aforesaid, the present petition stands dismissed. Since the main petition is dismissed, the Civil Application No.1 of 2023 would not survive and the same stands disposed of accordingly.

(VAIBHAVI D. NANAVATI,J)

13. After the pronouncement of this order, Mr. S.N. Soparkar, learned Senior Counsel appearing for the petitioner, requested for stay of this order for a period of four weeks. The said request stands rejected.

(VAIBHAVI D. NANAVATI,J)

NEHA