Uttarakhand High Court
WPMS/2992/2024 on 6 November, 2024
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2024:UHC:8170
Office Notes,
reports, orders or
SL. proceedings or
Date COURT'S OR JUDGE'S ORDERS
No. directions and
Registrar's order
with Signatures
WPMS No. 2992 of 2024
Hon'ble Manoj Kumar Tiwari, A.C.J.
Mr. Vinay Kumar, Advocate for the
petitioner.
2. Mr. Vikas Bahuguna, Advocate for the
respondent.
3. Petitioner has challenged the order dated
28.09.2024, passed by Additional District Judge,
Commercial Court, Dehradun, in Arbitration
Case No. 60 of 2024. By the said order,
application under Section 29A of Arbitration and
Conciliation Act, 1996, filed by respondent-
contractor for extending the mandate of
Arbitrator was allowed, and it was extended for
six months, effective from 28.09.2024. Prayer
made by petitioner for substituting Arbitrator
under Section 29A(6) of Arbitration and
Conciliation Act, 1996 was rejected. For ready
reference, Section 29A of Arbitration and
Conciliation Act is extracted below:-
"29A. Time limit for arbitral award.-- [(1)The award in
matters other than international commercial arbitration shall be
made 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
2024:UHC:8170
(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.
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 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."
4. Heard learned counsel for parties and
perused the record.
5. Learned counsel for petitioner submits that
petitioner had invoked provision contained in
sub-section (6) of Section 29A of the Act, for
substituting Arbitrator on the ground that sole
Arbitrator is biased against petitioner, however,
learned Commercial Court erred in not
considering petitioner's request, therefore, the
order impugned, passed by Commercial Court is
unsustainable in the eyes of law.
2024:UHC:8170
6. Per contra, learned counsel for respondent
submits that it is open to petitioner to challenge
the award under Section 34 of Arbitration and
Conciliation Act, and the award can also be
challenged on the ground that the Arbitrator was
biased against petitioner. Thus, he submits that
learned Commercial Court was right in not
entertaining the prayer for substituting the
Arbitrator and also in observing that petitioner
can agitate the issue under Section 34 of the Act,
once award is passed. He further submits that
the Court has power to replace and substitute the
Arbitrator only when it finds that delay in
adjudication of dispute is attributable to one or
all of the Arbitrators. He submits that in the
present case, there is neither such allegation nor
any finding that delay is attributable to the
Arbitrator, therefore, learned Commercial Court
was justified in rejecting prayer made by
petitioner for substituting the Arbitrator. He
submits that the ground on which prayer was
made for substituting Arbitrator is not available
under Section 29A(6), and it was open to
petitioner to invoke Section 15 of the Act for
that purpose. He relies upon paragraph no. 3 of
the judgment rendered by Hon'ble Supreme
Court in the case of Chief Engineer (NH) PWD
(Roads) v. BSC & C and C JV, 2024 SCC
OnLine SC 1801, which is extracted below:-
"3. 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 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."
7. This Court finds substance in the
submission made by learned counsel appearing
for respondent. The ground, on which petitioner
has sought substitution of Arbitrator was not
available to him under Section 29A(6) of
Arbitration and Conciliation Act, 1996. The
2024:UHC:8170
extension granted under Section 29A(4) of the
Act is a matter of course, since mandate of
Arbitrator had come to an end. Thus, the order
impugned in this writ petition cannot be faulted.
8. In such view of the matter, this Court does
not find any reason to interfere in the matter.
The writ petition fails and is dismissed. No order
as to costs.
(Manoj Kumar Tiwari, A.C.J.)
06.11.2024
Navin
NAVEEN
DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
ou=HIGH COURT OF UTTARAKHAND,
2.5.4.20=3be23325146e76a0642bdf4943fb904
6f487df006da82a131bb4e4403d3c0a15,
CHANDRA
postalCode=263001, st=UTTARAKHAND,
serialNumber=18167EEFB5CA8CFFD421A1038
19DA875643AF56D653D095C6ED9A86DAAB21
CE5, cn=NAVEEN CHANDRA
Date: 2024.11.07 10:47:34 +05'30'
