M/S. Blue Line Resorts Pvt. Ltd vs M/S. Hotel Sea Point Pvt. Ltd
2022 Latest Caselaw 2989 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                                W.P(C) No.3203 of 2022
                                (Through hybrid mode)

            M/S. Blue Line Resorts Pvt. Ltd.        ....                    Petitioner
                                                           Mr. Avijit Pal, Advocate

                                             -versus-

            M/S. Hotel Sea Point Pvt. Ltd.          ....              Opposite Party

                                                          Mr. S. Routray, Advocate

                      CORAM: JUSTICE ARINDAM SINHA
                                      ORDER

Order No.                            06.07.2022
    02.     1.      Mr. Pal, learned advocate appears on behalf of petitioner and

submits, judicial review of order dated 27th December, 2021 is sought

by his client. The order was made in his client's petition under section

29A (5) of Arbitration and Conciliation Act, 1996. The Court below

dismissed it.

2. He submits, there is confusion created on identity of his client.

The reference was commenced on notice issued by opposite party.

Said opposite party, thereafter, filed Arbitration Petition no.39 of 2013

under section 11(6) of Arbitration and Conciliation Act, 1996. The

request petition was disposed of by order dated 5th November, 2015

appointing sole arbitrator. It cannot be disputed that the reference was

compelled pursuant to deed of lease dated 1st May, 2012, in which

clause-18 provided for arbitration. He hands up copy of the deed to

demonstrate that his client had executed it as 'Blue Line Resorts Pvt.

Ltd.', though description of his client was erroneously given in the

deed as 'Blue Line Hotel and Resorts Pvt. Ltd'. It is an inadvertent

error in writing of the deed, being relied upon by opposite party to

avoid conclusion of the reference by award, if possible. He submits

further, there is yet another hurdle faced by his client inasmuch as its

name was struck off by the Registrar of Companies (ROC) for not

filing return. He hands up order dated 26th April, 2022 directing

restoration of his client as a duly registered company, directed by

National Company Law Tribunal (NCLT), Cuttack Bench.

3. He submits, there should be extension of time to enable the

tribunal to pass award. He reiterates, the arbitration was compelled by

opposite party as claimant. Said opposite party is now resisting

conclusion of the reference. Its motives are obvious.

4. Mr. Routray, learned advocate appears on behalf of opposite

party and submits, petitioner with oblique motive persuaded his client

to grant lease in respect of its property, a hotel. Petitioner took over

the hotel and has run its business to the ground. They did not pay lease

rent. As such, his client sought arbitration by notice. They were then

constrained to request The Hon'ble The Chief Justice for appointment

of arbitrator.

5. He submits, there should not be interference with impugned

order inasmuch as there is no illegality or material irregularity therein.

The reasons have been given after having heard the parties. Upon

application of mind the Court below found that taking into

consideration order dated 9th April, 2021 passed in the request petition

under section 11(6) and conduct of petitioner in having suppressed

same, the petition for extension of time was held to be not

maintainable in the eye of law and dismissed. In the facts and

circumstances before the Court below it was a possible view taken.

6. Mr. Routray's yet further submission is that section 29 A was

brought in by the amending Act. It is prospective in application. It

cannot apply to the arbitration proceeding, it having commenced much

prior to the amendment Act. Effective date for application of the

amendments is 23rd October, 2015. He relies on judgment dated 10th

November, 2021 of the Supreme Court in Civil Appeal no.6112 of

2021 (Ratnam Sudesh IYER Vs. Jackie Kakubhai Shroff), inter

alia, paragraph 18 in the print handed up. Therein the Court relied on

its earlier judgment in Board of Control for Cricket in India v.

Kochi Cricket Pvt. Ltd., reported in (2018) 6 SCC 287 to declare on

reference made to section 26 of the 2015 amendment Act, nothing

contained in the amendment Act would apply to arbitration

proceedings commenced in accordance with provisions under section

21 of the principal Act, before commencement of the amending Act,

unless parties otherwise agreed. On query from Court he submits,

there is no agreement between parties that the amending Act would be

made to apply to the reference. As such also the petition under section

29 A (5) was not maintainable.

7. The Arbitration and Conciliation Act, 1996, when enacted,

referred to as the principal Act as above, did not have a provision

limiting the mandate by time. It is clear, parties have not agreed that

provisions in the amendment Act of 2015 would be made applicable to

the reference, commenced much prior thereto. In the circumstances, it

cannot be said that mandate of the tribunal was limited by time. It

therefore appears, the petition made under section 29A(5) is

misconceived. Since the Court below had dismissed the same on

finding it otherwise not maintainable, the result of impugned order

does not need interference. However, it is made clear that the

contentions of earlier extension granted, it having become final and

the petition thereafter made under section 29A(5), do not need

adjudication since, as aforesaid, the petition itself is misconceived.

The tribunal is expected to expeditiously deal with and conclude the

reference, there being no limit by time on the mandate

8. The writ petition is disposed of as above.

(Arindam Sinha) Judge Prasant