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2018 DIGILAW 676 (AP)

Chadalavada Krishna Murthy v. Vinod Baid

2018-09-14

THOTTATHIL B.RADHAKRISHNAN

body2018
JUDGMENT : 1. I.A.No.2 of 2018 in A.A.No.86 of 2013 is an application filed by the respondent in the Arbitration Application praying that this Court be pleased to grant extension of time to the Arbitrator for completion of the arbitral proceedings and for passing an award. Reference is also made in the affidavit filed in support of I.A.No.2 of 2018 to the fact that the learned Arbitrator has addressed a letter to this Court seeking extension of time for completion of arbitral proceedings and the said letter is also pending consideration. The records include the letter, dated 12.01.2018 of Justice Dalava Subrahmanyam, former Judge of the High Court of Andhra Pradesh, addressed to the Registrar General of this Court. Having regards to the contents thereof, I deem it appropriate that a copy of the said letter stands appended as an Annexure to this order. It is so directed. 2. The plea in the affidavit filed in support of I.A.No.2 of 2018 seeking extension of time is in terms of the contents of the letter of the learned Arbitrator. Apart from that, the affidavit also makes reference to the decision of A.A.M.P.No.1158 of 2017, which was filed as an application in A.A.No.86 of 2013. That application was disposed of by this Court on 13.04.2018 holding that the challenge levied by the applicant in the said A.A.M.P.No.1158 of 2017 questioning the authority of the Arbitrator is not sustainable before the High Court and such plea would lie only before “Court” as defined in Section 2(e) of the Arbitration and Conciliation Act, 1996 “for short, the Act”. 3. The first respondent in I.A.No.2 of 2018, who was the applicant in A.A.No.86 of 2013, has filed counter affidavit raising the plea that an application for enlargement of time can be sustained only under Section 29A of the Act following the insertion of that provision by Act 3 of 2016 with retrospective effect, with effect from 23.10.2015 and that such application would lie only before the “Court” as defined in Section 2(e) of the Act. It is contended that this High Court is not a “Court” under Section 2(e) of the Act as so amended. It is also pleaded that by efflux of time, the Arbitrator has lost his mandate, particularly on the basis of various factors pleaded in that counter affidavit sworn to on behalf of the first respondent on 15.06.2018. 4. It is contended that this High Court is not a “Court” under Section 2(e) of the Act as so amended. It is also pleaded that by efflux of time, the Arbitrator has lost his mandate, particularly on the basis of various factors pleaded in that counter affidavit sworn to on behalf of the first respondent on 15.06.2018. 4. Heard learned counsel for the parties. 5. The learned counsel for the applicant in I.A.No.2 of 2018 reiterated the aforenoted contentions in that application, while the learned counsel for the contesting first respondent in the application objected to the application being allowed particularly pointing out that even as per the inter parties decision in A.A.No.1158 of 2017, this High Court is not the “Court” for the purpose of either under Section 14 or under Section 29A of the Act, and therefore, a request for extension of time can be entertained only by the “Court” as defined in Section 2(e) of the Act cannot be entertained as an interlocutory application in this proceedings. 6. Arbitration Application No.86 of 2013 was instituted on 30.07.2013 under Section 11(6) of the Act. The Chief Justice or the person designated by him was the statutory authority to take necessary measure in terms of Section 11(6) of the Act as it then stood. That application was allowed by the then Chief Justice on 04.10.2013 before the amendments brought to the Act as per Act No.3 of 2016, came into force with effect from 23.10.2015. There was then, no statutory regulation as to time limit for the Arbitrator in as much as Section 29A of the Act was also inserted into the Act only with effect from 23.10.2015. Thus, while neither under Section 29A nor any other provision akin thereto was in force, the learned Chief Justice had, through the aforenoted order, dated 04.10.2013, required the Arbitrator appointed as per that order to make and publish the Award within a period of five months from the date of entering upon reference. The period so fixed had run out even before insertion of Section 29A in the Act. However, the records show that time was enlarged by the learned Chief Justice or by this Court through Orders passed on applications filed in connection with Arbitration Application No.86 of 2013 from time to time or with letters of the learned Arbitrator. The period so fixed had run out even before insertion of Section 29A in the Act. However, the records show that time was enlarged by the learned Chief Justice or by this Court through Orders passed on applications filed in connection with Arbitration Application No.86 of 2013 from time to time or with letters of the learned Arbitrator. Those orders were issued on 01.08.2014, 30.01.2015, 17.07.2015, 21.10.2016, 06.01.2017 and 21.04.2017, including after 23.10.2015 when the amendments as per Act No.3 of 2016 came into force. The period of five months fixed initially by the then Chief Justice through the order dated 04.10.2013 and the extension of time granted thereafter were not invoking authority under Section 29A of the Act. 7. It was rightly opined by the then Acting Chief Justice in the order, dated 13.04.2018 in A.A.M.P.No.1158 of 2017, that it is debatable whether Section 29A, as inserted in the Act with effect from 23.10.2015, would apply to cases where an Arbitrator has been appointed prior thereto. I concur with that opinion. However, it is not necessary to decide on that issue in this case having regard to what is being stated hereinafter. 8. The aforenoted facts of the case in hand would show that the arbitral proceedings which is the subject matter of consideration herein, was not available for any extension of time by consent of parties under Section 29A of the Act since exercise of any such consent by the parties would obliterate the judicial order of the Chief Justice of this Court and by this Court thereafter, post amendment, enlarging the time limit for the Arbitrator to pass an Award. In this view of the matter, the power to take necessary measure under Section 11(6) of the Act continues to run in the light of the fact that the order appointing the Arbitrator issued by the then Chief Justice on 04.10.2013 on Arbitration Application No.86 of 2013 included the judicial command and control as regards the time limit for arbitral award being made. Any other view in the matter would impair the course of justice and would breach the very purpose of arbitration as was commenced in terms of the duly issued order by the Chief Justice under Section 11(6) of the Act. 9. Any other view in the matter would impair the course of justice and would breach the very purpose of arbitration as was commenced in terms of the duly issued order by the Chief Justice under Section 11(6) of the Act. 9. It is the uncontested position, on facts, that different adjournments, which were granted by the learned Arbitrator, were in view of the other proceedings in this High Court as well as before the Hon’ble Supreme Court; the factors relating to the health condition of the learned Arbitrator, who is stated to have undergone coronary by-pass surgical intervention as well as surgery for kidney stone problem, which one of the learned Advocates had suffered. The learned Arbitrator has expressed in the letter that the arbitral proceedings could be concluded within a further period of four months from the date of issuance of that letter. Obviously, therefore, if the parties cooperate as is required, the arbitral proceedings can be concluded in all reasonableness, at the earliest. 10. In the result, taking into consideration the letter, dated 12.01.2018, addressed by the learned Arbitrator and the contents of the application, I.A.No.2 of 2018 is allowed granting time for a period of six months from the date of receipt of copy of this Order, for the learned Arbitrator Sri Justice Dalava Subrahmanyam to pass an Award for which he was appointed as per Order, dated 04.10.2013 in A.A.No.86 of 2013, which would provide adequate time for the learned Arbitrator to notify the parties calling for their further appearance and fixation of schedule for completion of the arbitral proceedings.