Era Infra Engineering Ltd vs National Institute Of Technology
2021 Latest Caselaw 16412 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     THURSDAY, THE 5TH DAY OF AUGUST 2021 / 14TH SRAVANA, 1943
                         OP(ATE) NO. 4 OF 2021
PETITIONER:

             ERA INFRA ENGINEERING LTD.
             C-56/41, SECTOR-62, NOIDA-201301, UTTAR PRADESH,
             REPRESENTED ITS RESOLUTION PROFESSIONAL, RAJIV
             CHAKRABORTY, S/O. SRI. BADAL KUMAR CHAKRABORTY, AGED 47
             YEARS, R/O. 12, FF, SUKHDEV VIHAR, NEW DELHI-110025.

             G.CHITRA
             SUHAIL SEHGAL



RESPONDENT:

             NATIONAL INSTITUTE OF TECHNOLOGY,
             CALICUT, NIT CAMPUS P.O., CALICUT, KERALA-673601,
             REPRESENTED BY ITS REGISTRAR.


     THIS     OP(ARBITRATION   TIME   EXTENSION)   HAVING   COME   UP   FOR
ADMISSION ON 05.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 OP(ATE) NO. 4 OF 2021
                                   2


                              JUDGMENT

This original petition has been filed by the petitioner

invoking the provisions of Section 29A of the Arbitration and

Conciliation Act, 1996 (for short 'the Act'), with the plea that

the learned Arbitrator - earlier appointed by this Court

through Ext.P3 order - be directed to recommence the

arbitration proceedings, which he has stopped through Ext.P6

order under the provisions of Section 29A(1) of the Act.

2. The petitioner asserts that the learned Arbitrator

could not have stopped proceedings under Section 29A, as is

stood prior to the year 2019, since it was amended with effect

from 09.08.2019, whereby, the period of twelve months

commences only from the date of completion of pleadings

under Section 23(4) of the Act. The petitioner asserts that the

pleadings have not yet been completed and therefore, that the

learned Arbitrator was in error in having concluded

proceedings in the manner as has been done through Ext.P6.

3. I have heard Sri.Suhail Sehgal, the learned counsel

for the petitioner and Sri.Shyam Padman, learned counsel

appearing for the respondent.

OP(ATE) NO. 4 OF 2021

4. Sri.Shyam Padman opposed the afore request of the

petitioner, arguing that, as is evident from Ext.P6, the learned

Arbitrator has found that the entire cause for delay rests

squarely on the petitioner, since they neither completed the

pleadings nor paid the fees, which was agreed, to the

Arbitrator. Sri.Shyam Padman submitted that on account of

the lackadaisical attitude adopted by the petitioner, his client

has been put to unnecessary prejudice and had to expend

large amounts of money; and thus prayed that this Court may

not extend the time frame as sought for by the petitioner any

further, except on appropriate conditions, including that his

client will not shoulder any further responsibility for the

arbitral fees or expenses during the extended period. He

predicated that, in any event of the matter, until the petitioner

pays the agreed fees to the Arbitrator and continues to do so,

this Court may not find favour with their plea and prayed that

this case be ordered only on such terms.

5. I have considered the afore dialectical contentions of

the rival parties and have also examined the order of the

learned Arbitrator stopping proceedings, namely Ext.P6, very

carefully.

OP(ATE) NO. 4 OF 2021

6. The learned Arbitrator has, in paragraph 18 and 19,

explained how the arbitration proceedings were delayed and

has unequivocally found that the petitioner was responsible

for the same. The learned Arbitrator has also recorded that,

in spite of sufficient opportunities have been given to the

petitioner, they had not paid the agreed fees and

consequently, that an order under Section 31A of the Act had

been issued, warning them that if the same is not complied

with, the proceedings would be stopped.

7. The afore conduct of the petitioner, as noticed by the

learned Arbitrator, certainly is deleterious and cannot be

normally condoned. However, taking note of the seriousness

of the disputes raised and the fact that the respondent is an

autonomous educational Institution, I deem it appropriate to

allow this request; however, on the following conditions:

(a) The petitioner will pay the fees of the learned

Arbitrator until today, along with all applicable expenses,

within a period of four weeks from today.

(b) The petitioner will pay the whole of the agreed fees

to the Arbitrator during the extended period of time, without OP(ATE) NO. 4 OF 2021

the respondent being asked to honour the same, albeit on the

specific condition that the learned Arbitrator will make

sufficient provisions for the same in the Award to be finalised

by him.

(c) In the event the petitioners comply with direction (a)

above within the time frame granted herein, the learned

Arbitrator will recommence the proceedings and issue award

within a period of six months from the date on which the

petitioner makes payment in terms of the said direction.

Needless to say, should the petitioner default in any

manner, in making payment as per direction (b) above or be

found not co-operating with the orders of the Arbitrator, the

said Authority will be at full liberty to stop proceedings under

Section 29A appropriately without any further orders from

this Court.

Sd/- DEVAN RAMACHANDRAN JUDGE stu OP(ATE) NO. 4 OF 2021

APPENDIX OF OP(ATE) 4/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 08/05/2018 OF THE NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI PRINCIPAL BENCH IN CP NO. 1B-

190(PB)/2017.

Exhibit P2 TRUE COPY OF THE SUPPLEMENTAL AGREEMENT DATED 13/10/2017 ENTERED INTO BETWEEN THE PETITIONER AND RESPONDENT.

Exhibit P3 TRUE COPY OF THE ORDER DATED 16/01/2018 PASSED BY THIS HONOURABLE COURT IN ARBITRATION REQUEST NO. 03/2017.

Exhibit P4 TRUE COPY OF THE ORDER DATED 02/12/2019 OF THE NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI PRINCIPAL BENCH IN CP NO. IB-190(PB) 2017.

Exhibit P5 TRUE COPY OF THE LETTER DATED 29/05/2019 ISSUED BY THE PETITIONER TO THE LEARNED ARBITRATOR.

Exhibit P6 TRUE COY OF THE ORDER DATED 22/06/2019 OF THE LEARNED ARBITRATOR IN ARBITRATION PETITION NO. 1/2018.

Exhibit P7 TRUE COPY OF THE MINUTES OF THE 16TH MEETING OF THE COMMITTEE OF CREDITORS OF THE PETITIONER HELD ON 24/10/2019 AT 1.00 PM.

Exhibit P8 TRUE COPY OF ORDER DATED 14/11/2019 PASSED BY THE HON'BLE NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI SPECIAL BENCH IN CP NO.1B-190(PB)/2017.

Exhibit P9 TRUE COPY OF THE LETTER DATED 27/03/2019 ISSUED BY THE RESPONDENT TO THE PETITIONER. OP(ATE) NO. 4 OF 2021

Exhibit P10 TRUE COPY OF THE REPLY LETTER DATED 22/05/2019 OF THE PETITIONER TO THE RESPONDENT.

Exhibit P11 TRUE COPY OF THE LETTER DATED 11/02/2020 OF THE PETITIONER.

Exhibit         TRUE COPY OF THE LETTER DATED 25/02/2020 OF
P11(A)          THE RESPONDENT.

Exhibit P12 TRUE COPY OF THE ORDER DATED 10/01/2020 OF THE NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI PRINCIPAL BENCH IN CP NO.1B-190(PB)/2017.

Exhibit P13 TRUE COPY OF THE LETTER DATED 14/03/2016 OF THE PETITIONER.

Exhibit TRUE COPY OF THE LETTER DATED 16/03/2016 OF P13(A) THE PETITIONER ALONG WITH THE MINUTES OF THE MEETING OF THE PROJECT MONITORING COMMITTEE DATED 16/03/2016.

Exhibit         TRUE COPY OF THE LETTER DATED 07/04/2016 OF
P13(B)          THE PETITIONER.

Exhibit         TRUE COPY OF THE LETTER DATED 04/07/2016 OF
P13(C)          THE PETITIONER.