Madras High Court
S.Balasubramanian vs M/S.Amarprakash Property ... on 21 September, 2021
CMA.No.2477 of 2017 and batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.09.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
C.M.A.Nos.2477, 2478, 2479, 2480, 2481, 2482,
2483, 2484, 2485, 2486, 2487, 2488, 2489,
2490, 2491, 2492, 2493, 2494, 2495, 2496,
2497, 2498, 2499, 2500, 2501, 2502, 2503,
2504, 2505, 2506, 2507, 2508, 2509, 2545,
2546, 2547, 2548, 2549, 2550, 2551, 2552,
2553, 2554, 2555, 2556, 2557 and 2558 of 2017
and
CMP Nos.13643, 13644, 13645, 13646, 13647, 13648,
13649, 13650, 13651, 13652, 13653, 13654, 13655, 13656,
13657, 13658, 13659, 13660, 13661, 13662, 13663, 13664,
13665, 13666, 13667, 13668, 13669, 13670 , 13671, 13672,
13673, 13674, 13675, 13905, 13906, 13907, 13908, 13909,
13910, 13911, 13912, 13913, 13914, 13915, 13916,
13917 and 13918 of 2017
In CMA No.2477 of 2017
S.Balasubramanian ...Appellant
vs.
M/s.Amarprakash Property Management
Services Private Ltd.,
No.42, Rajendra Prasad Road,
Nehru Road,
Chrompet,
Chennai – 600 044. ...Respondent
https://www.mhc.tn.gov.in/judis/
CMA.No.2477 of 2017 and batch
Common Prayer : Civil Miscellaneous Appeals filed under Section 37
of the Arbitration and Conciliation Act, 2015 to set aside the order dated
21.07.2017 passed by the sole Arbitrator and allow this Appeal.
For Appellant in all CMAs : Mr.P.V. Balasubramaniam
For Respondent in all CMAs : M/s.Kumarapal R. Chopora
Mr.Dinesh Kumar – No appearance
Change of vakalath
for sole respondent.
COMMON JUDGMENT
(These cases were heard through Video Conferencing)
These appeals arise out of similar orders passed by the Arbitral
Tribunal under Section 17 of the Arbitration and Conciliation Act,
wherein interim directions have been issued to the respective appellants
to pay certain sums of money towards maintenance and other charges.
Since, these appeals arise out of the very same issue, all these appeals are
disposed of by a common judgment.
2. These appeals have been filed by the Apartment owners of a
residential complex which was earlier maintained by the respondent
under a maintenance agreement. There seems to be some disputes
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CMA.No.2477 of 2017 and batch
between the parties under the said agreement and the said disputes were
referred to Arbitration in accordance with the Arbitration clause
contained in the said agreement. The impugned order has been passed
under Section 17 of Arbitration and Conciliation Act issuing certain
interim directions against each of the respective appellants in all these
appeals.
3. Aggrieved by the same, these appeals have been filed under
Section 37 of the Arbitration and Conciliation Act.
4. On the last hearing date i.e. on 16.09.2021, this Court directed
the respondent counsel Mr.Kumarapal R. Chopra, learned counsel to get
instructions as to whether the respondent has filed the claim statement in
the Arbitration as the learned counsel for the Appellant in all these
appeals was repeatedly pointing out that till date, no claim statement was
filed.
5. Today, the learned counsel for the Appellant in all these
appeals would submit till date, no claim statement has been filed by the
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CMA.No.2477 of 2017 and batch
respondent before the Arbitral Tribunal and he would also submit that
one of the Arbitrators who has passed the impugned orders under Section
17 of the Arbitration and Conciliation Act Mr.M.Sunil Raja has now
become a Civil Judge (Junior Division) and the other Arbitrator
Mr.Inbavijayan, learned counsel has also not shown interest in
proceeding with the Arbitration. Under the Arbitration and Conciliation
Act once the interim order is granted, the Arbitration should be
completed expeditiously.
6. Mr.Kumarapal R. Chopra, learned counsel today informs this
Court that he had already given change of vakalath to Mr.Dinesh
Kumar, learned counsel, who has not appeared before this Court today.
7. Infact under Section 29-A of the Arbitration and Conciliation
Act 1996, strict time lines have been statutorily fixed for completion of
Arbitration. Section 29-A of the Arbitration and Conciliation Act reads
as follows :
[29A.Time limit for Arbitral award.--2[(1) The award shall be
made within a period of twelve months from the date the arbitral
tribunal enters upon the reference.
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CMA.No.2477 of 2017 and batch
Explanation : For the purpose of this sub-section, an arbitral
tribunal shall be deemed to have entered upon the reference on the date
on which the arbitrator or all the arbitrators, as the case may be, have
received notice, in writing of their appointment.
(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:
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CMA.No.2477 of 2017 and batch
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 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.
8. As seen from the aforementioned Section, the Arbitral Tribunal
will have to pass an Arbitral Award within a period of twelve months
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CMA.No.2477 of 2017 and batch
from the date when the Arbitral Tribunal enters upon the reference. The
time period can be extended by another period of six months by consent
of the parties and if the award has not been passed even thereafter, the
Court alone can grant extension of further time for passing the Arbitral
Award. Section 29-A of the Act, extracted above is as per the 2015
amendment to the Arbitration and the Conciliation Act, 1996 as only the
said amendment applies to the Arbitration which is the subject matter of
these appeals.
9. In the case on hand in all the Arbitration claims, excepting for
passing of the interim order under Section 17 of the Arbitration and
Conciliation Act, no further progress has been shown in the Arbitration
by the Arbitral Tribunal. Admittedly, the claim statements have also not
been filed till date. The Arbitration was originally initiated in the year
2017 and even after the lapse of more than four years, no progress has
been shown in the Arbitration. Hence, the impugned orders passed under
Section 17 of the Arbitration and Conciliation Act, which is the subject
matter of these appeals have to be necessarily set aside as Section 29-A
of the Arbitration and Conciliation Act has been contravened by the
Arbitral Tribunal by not showing any progress in the Arbitration after
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CMA.No.2477 of 2017 and batch
passing of the impugned orders. The very purpose of the Arbitration is
for expeditious disposal of disputes. But in the case on hand, the object
of Arbitration has been defeated by the Arbitral Tribunal by not showing
any progress in the Arbitration.
10. In the result, all these Civil Miscellaneous Appeals are allowed
by setting aside the impugned orders all dated 21.07.2017 passed by the
Arbitral Tribunal. No costs. Consequently, connected miscellaneous
petitions are closed.
21.09.2021
ab/vsi2
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
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CMA.No.2477 of 2017 and batch
ABDUL QUDDHOSE, J.
vsi2
C.M.A.Nos.2477, 2478, 2479, 2480,
2481, 2482, 2483, 2484, 2485, 2486,
2487, 2488, 2489, 2490, 2491, 2492,
2493, 2494, 2495, 2496, 2497, 2498,
2499, 2500, 2501, 2502, 2503, 2504,
2505, 2506, 2507, 2508, 2509, 2545,
2546, 2547, 2548, 2549, 2550, 2551,
2552, 2553, 2554, 2555, 2556, 2557
and 2558 of 2017
21.09.2021
https://www.mhc.tn.gov.in/judis/
