Kerala High Court
Tech Sharp Engineers Pvt Ltd vs Bharat Petroleum Corporation Ltd on 24 January, 2025
OP(ATE) NO.2 OF 2025 1
2025:KER:6014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 24TH DAY OF JANUARY 2025 / 4TH MAGHA, 1946
OP(ATE) NO.2 OF 2025
PETITIONER:
TECH SHARP ENGINEERS PVT LTD
10/17, 1514, J BLOCK, ANNA NAGAR, CHENNAI
(REPRESENTED BY DANNIE MATHEW, PROJECT DIRECTOR),
AGED 50, PIN - 600040
BY ADVS.
ABRAHAM JOSEPH MARKOS
ISAAC THOMAS
P.G.CHANDAPILLAI ABRAHAM
ALEXANDER JOSEPH MARKOS
JOHN VITHAYATHIL
RESPONDENT:
BHARAT PETROLEUM CORPORATION LTD.
POST BAG NO.2, AMBALAMUGAL,
ERNAKULAM, KERALA, PIN - 682302
BY ADV.SRI.M.GOPIKRISHNAN NAMBIAR, SC
THIS OP(ARBITRATION TIME EXTENSION) HAVING COME UP FOR
ADMISSION ON 24.01.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
OP(ATE) NO.2 OF 2025 2
2025:KER:6014
JUDGMENT
Dated this the 24th day of January, 2025
This O.P.(ATE) is filed invoking Section 29A of the Arbitration
and Conciliation Act, 1996 (hereinafter referred to as "the Act"),
seeking to extend the Arbitrator's mandate.
2. This Court had vide order dated 14.10.2022 in
A.R.No.98 of 2022 appointed an Arbitrator to adjudicate and
resolve the disputes and differences between the petitioner and
the respondent. It is submitted that arbitration had commenced
before the learned Arbitrator thus appointed and the pleadings in
terms of Section 23 (4) of the Act were completed on 28.07.2023.
The arbitral award was to be rendered by 28.07.2024 as
stipulated in Section 29A(1) of the Act. However, due to the
complex nature of arbitration proceedings and the voluminous
pleadings and evidence involved, the proceedings could not be
completed within the stipulated time. Hence the parties by mutual
consent extended the time for 6 more months that is till
28.01.2025. It is stated that now the evidence is complete and
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all that remains is the final arguments of both sides and rendering
of the award. Since it is certain that it will not be possible to
conclude the arbitration proceedings and render the award within
the stipulated time, O.P.(ATE) is filed seeking an extension of time
from 28.01.2025 to 28.07.2025.
3. Heard Sri.Abraham Joseph Markos, Advocate for the
petitioner and Smt.Pooja Menon, Advocate for the respondent.
4. The counsel are ad idem regarding the extension
sought and concurs that the time period can be extended as
requested.
5. In the course of hearing, however, it is pointed out
that the Hon'ble Supreme Court in Chief Engineer (NH) PWD
(Roads) v. BSC&C and C JV (2024 SCC Online SC 1801) has,
while disposing an SLP filed challenging the Judgment and order
of the High Court of Meghalaya dismissing a Section 29 A petition
inter alia pointing out that it did not possess Original Civil
Jurisdiction, held as follows:
"In this case, the High Court does not have the
ordinary original civil jurisdiction. The power under
Sub-Section (6) of Section 29A is only a
consequential power vesting in the Court which is
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empowered to extend the time. If the Court finds
that the cause of delay is one or all of the
arbitrators, while extending the time, the Court has
power to replace and substitute the Arbitrator(s).
The said power has to be exercised by the Court
which is empowered to extend the time as provided
in sub-Section (4) of Section 29A of the Arbitration
Act."
6. In the light of the above dictum laid down by the
Hon'ble Supreme Court, doubt is raised regarding the
maintainability of application filed under Section 29 A of the Act
before this Court, especially since this Court, like the High Court
of Meghalaya, does not possess Original Civil Jurisdiction. The
term 'Court' as used in Section 29A(4) in contradistinction to the
term 'High Court' as used in Section 11 (3A) is highlighted by the
counsel for the respondent as a pointer to the legislative intent
that the power to extend the time period has been conferred on
the 'Court' as defined in Section 2 (1) (e) (i) of the Act ie., the
Principal Civil Court having original jurisdiction in the District
having competence to decide questions forming the subject
matter of the arbitration and not on this Court.
7. I note that the very same question regarding
maintainability was considered in extenso by this Court in Kauser
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Fathima v. Asset Homes Pvt. Ltd. [Arb.P.No.2 of 2024 dated
12.09.2024]. Taking note of the above-quoted observation of the
Hon'ble Supreme Court in Chief Engineer (NH) (supra), this
Court had in Kauser Fathima (supra) concluded as follows:
3. The counsel for the petitioner submitted
that the power to extend the mandate contained in
Section 29A (4) available to this Court has not been
taken away by the judgment of the Hon'ble
Supreme Court. It is pointed out that the Supreme
Court was considering a Special Leave to Appeal
filed against the judgment of the High Court of Court
of Meghalaya has been placed before me, from
which it is seen that the Court was considering the
extension of the mandate in a case where the
Arbitrator was not appointed under Section 11(6) of
the Act. After detailed consideration of the mode of
appointment of the Arbitrator, the High Court of
Meghalaya held that since it was a case where the
Arbitrator was not appointed by invoking the power
under Section 11(6) of the Act, the Principal Civil
Court of original jurisdiction alone can exercise the
power under Section 29A(4). The court specifically
considered the anomalous situation which would
arise if a substitution has to be made by the
Principal Civil Court in a case where the Arbitrator
was appointed by the High Court under Section
11(6). The Supreme Court affirmed the judgment of
the Meghalaya High Court and in doing so, made
the observation above referred.
XXX
The counsel for the petitioner also placed before
me an order on reference made by a Division
Bench of the High Court of Bombay in Sheela
Chowgule vs. Vijay V. Chowgule and Ors (Writ
Petition No.88 of 2024 MANU/MH/5153/2024) when
a similar situation was faced by the court. After
considering the judgments on the issue, the Court
held that a contextual interpretation is required
since the word "Court" defined under Section 2(1)
(e) specifically says that the definition as "unless
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the context otherwise requires" the court held that in
a case where the Arbitrator is appointed by the High
Court under Section 11(6) there is a different
context which requires a different meaning to be
attributed to the meaning of the word "Court". It was
hence held that in the event an Arbitral Tribunal
constituted by the High Court under Section 11(6)
fails to complete the proceedings within the
stipulated period/extended period, then an
application under Section 29A(4) would lie to the
High Court in case of a domestic arbitration. I am in
respectful agreement with the above view.
8. I respectfully concur with the view expressed in
Kauser Fathima's case (supra). Further, the question of whether
the term "court" contained in Section 29A(4) requires a contextual
interpretation apart from the meaning contained in Section 2(1)(e)
(i) of the Act. has been answered by a Division Bench of this Court
in Lots Shipping Company Ltd. v. Cochin Port Trust [2020
(2) KLT 907] holding that a contextual interpretation is clearly
permissible in view of the rider contained in sub-section (1) of
Section (2), which reads, "unless the context otherwise requires".
Moreover, the Judgment of the Hon'ble Supreme Court in Chief
Engineer (NH) (supra) does not restrict or take away power
vested in this court by Section 29A (4) since unlike in Chief
Engineer (NH) (supra) the Arbitrator whose mandate is sought
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to be extended in the above O.P.(ATE) was in fact appointed by
this Court and hence this Court retains the power to extend time
of the arbitral Tribunal that it had appointed. The above O.P.(ATE)
is thus maintainable and can be entertained by this Court.
9. In view of the above, this Original Petition is
allowed and the mandate of the learned Arbitrator is as
requested, extended from 28.01.2025 to 28.07.2025.
O.P.(ATE) is disposed of accordingly.
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
