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2024 DIGILAW 495 (GUJ)

Hitachi India Private Ltd v. Aquafil Wintech Jv

2024-03-11

NIRAL R.MEHTA

body2024
JUDGMENT : 1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner – original claimant has approached this Court against the order dated 1st March 2023 passed by the learned Arbitrator, whereby an application preferred by the petitioner for impleadment of Aquafil Polymers Company Limited as respondent No.2 and Wintech Engineers Private Limited as respondent No.3 being proper and necessary parties in the arbitral proceedings between the claimant and the respondent, came to be dismissed. 2. The facts, as per the petitioner, can be stated as under: 2.1 That Guwahati Metropolitan Development Authority (“GMDA”) and JWIL-Ranhill JV (“JWIL”) entered into an agreement for Guwahati Water Supply Project C-01 on Turnkey basis for procurement of Design, Supply, Installation and Commissioning of Intake Facilities, Transmission Mains, Water Treatment Plant and Reservoir for North Zone ( Contract Package No.C-01) including 5 years of operation and maintenance (hereinafter referred to “The Guwahati Water Supply Project”). 2.2 That thereafter JWIL (JITF Water Infrastructure Limited) one of the parties to the JWIl-Ranhill JV issued Request for proposal vide a Notice of Invitation to Tender from interested parties for the Guwahati Water Supply Project. 2.3 That Aquafil and Wintech entered into a Consortium Agreement dated 2nd August 2014 for forming an entity in the nature of an Association of Persons called “Aquafil Wintech JV” for the purpose of the bidding for the Guwahati Water Supply Project. The respondent submitted its proposal with JWIL in terms of Request for proposal issued by JWIL. 2.4 That thereafter JWIL vide work order No.JWIL/ Gu-1/CS/14054/PH dated 8th August 2014 awarded a contract to the respondent for Guwahati Water Supply Project. 2.5 Thereafter, the respondent which was set up inter alia for the purpose of executing the Guwahati Water Supply Project entered into a sub-contract with the petitioner vide Letter of Award dated 9th July 2015 read along with Order Acknowledgement dated 31st July 2015 and awarded a portion of the work under the Guwahati Water Supply Project (Main contract) to the petitioner for “Electromechanical, instrumentation and automation works for WTP (Water Treatment Plant) and Intake of Guwahati Water Supply Project Package No.C-01 of Guwahati Metropolitan Development Authority”. 2.6 One of the conditions of the Letter of Award dated 9th July 2015 and Order Acknowledgement dated 31st July 2015 are as under: “Clause 24 : Special Condition The Seller after execution of LOA, shall make remittances of any agreed amount as advance payments to the downstream sub-contractors (also called “Nominated sub-contractors). In case this contract is termination pre-maturely then the Buyer will reimburse any such advance payments made by the Seller after adjusting for the billed amount.” "Clause 5: Additional Nominated Subcontractors It has been agreed between the Purchaser and Hitachi that M/s Wintech Engineers Private Limited having its registered office at 40, 2nd and 3rd Floor, Community Centre, Phase-1, Naraina, New Delhi - 110028 shall be a nominated subcontractor for the items mentioned in Annexure 2 and also, M/s Aquafil Polymers Company Private Limited having its registered office at 202-203, Shyamak Complex, B/h subcontractor for the items mentioned in Annexure 3. 2.7 In terms of Clause 24 of the above Letter of Award dated 9th July 2015 and Clause 5 of Order Acknowledgement dated 31st July 2015, the petitioner paid a sum of Rs.1,60,00,000 (Rupees One Crore Sixty Lakh Only) to Aquafil as advance and further executed a Letter of Award dated 29th July 2015 in favor of Aquafil as a nominated sub-contractor for basic and detailed engineering, design approval, supply, erection, installation, testing and commissioning of mechanical equipment and pipe for WTP and reservoir for Guwahati Water Supply Project under Contract Package No. C-01. 2.8 In terms of Clause 24 of the Letter of Award dated 9th July 2015 and Clause 5 of Order Acknowledgement dated 31st July 2015, the petitioner paid a sum of Rs.95,00,000 (Rupees Ninety Five Lakh Only) to Wintech as advance and further executed a Letter of Award dated 29th July 2015 in favor of Wintech as a nominated sub-contractor for basic and detailed engineering, surveys, design approval, supply, erection and installation, testing and commissioning of mechanical equipment and pipe for intake well, rising mains for Guwahati Water Supply Project under Contract Package No. C-01. Similarly, in terms of Clause 24 of the Letter of Award dated 9th July 2015 and Clause 5 of Order Acknowledgement dated 31st July 2015, the petitioner further paid a sum of Rs.65,00,000 (Rupees Sixty Five Lakh Only) to Wintech as advance and executed a Letter of Award dated 6th August 2015 for basic engineering, surveys, design, approval, supply, erection and installation, testing, commissioning of mechanical equipment and pipe WTP and Reservoir and spare for Intake and WTP for Guwahati Water Supply Project under Contract Package No. C-01. 2.9 That in terms of Clause 24 of the Letter of Award dated 9th July 2015 and Clause 5 of Order Acknowledgement dated 31st July 2015, the petitioner vide another Letter of Award dated 6th August 2015(hereinafter referred to as the “LOA dated 6th August 2015 Aquafil”) awarded a contract to the Aquafil for operation and maintenance of Electro-Mechanical and Control and Instrumentation system for 5 years of intake well, rising main, WTP and reservoir for Guwahati Water Supply Project under Contract Package No.C-01. 2.10 Thus, the petitioner has paid a sum of Rs.3,20,00,000/- (Rupees Three Crore Twenty Lakh only) to the nominated subcontractors of the respondent i.e. Aquafil and Wintech as advance in terms of Clause 24 of the Letter of Award dated 9th July 2015 read with Order Acknowledgement dated 31st July 2015, the Letter of Award dated 29th July 2015 and 6th August 2015. The petitioner also provided its services to the respondent in terms of Letter of Award dated 9th July 2015. 2.11 The respondent, vide letter dated 10th July 2017, terminated all the contracts i.e. Letters of Award dated 9th July 2015 executed between the petitioner and the respondent, Letter of Award dated 29th July 2015 and 6th August 2015 executed with Aquafil and Letter of Award dated 29th July 2015 and 6th August 2015 executed with Wintech Engineers Pvt. Ltd. with immediate effect. 2.12 It is the further case of the petitioner that because of premature termination of Letter of Award dated 9th July 2015, the petitioner requested for reimbursement of advance amount of Rs.3,20,00,000/- (Rupees Three Crore and Twenty Five Lakh only) paid to the Aquafil Polymers Company Private Limited and Wintech Engineers Pvt. Ltd. in terms of Clause 24 of the Letter of Award dated 9th July 2015. The petitioner, vide its email and letter dated 1st March 2018 requested the respondent to refund the outstanding advance amount of Rs.3,13,08,902.19 (Rupees Three Crore Thirteen Lakh Nine Hundred Two and Ninteen Paise only) after adjusting the amount in terms of Clause 24 of the Letter of Award dated 9th July 2015. In addition to the aforesaid, additional sum totaling to Rs.11,37,582.58 (Rupees Eleven Lakh Thirty Seven Thousand Five Hundred Eighty Two and Fifty Eight Paise only) which became due from the respondent for the work done and billed under the Letter of Award’s also remains unpaid. Thus, the petitioner was constrained to invoke the arbitration clause in the Letter of Award dated 9th July 2015 vide arbitration notice dated 10th August 2020 for refund of outstanding advance amount of Rs.3,13,08,902.19 and additional sum of Rs.11,37,582.58. 2.13 The Aquafil, vide its reply dated 19th August 2020, refused to submit to the arbitration invoked by the petitioner on the ground that Aquafil is not a party to the Letter of Award dated 9th July 2020 and the agreement has been entered into by the Aquafil-Wintech JV and the petitioner. The petitioner, vide its rejoinder dated 27th October 2020, denied the aforesaid contention stating that the Aquafil is a necessary and proper party to the arbitration invoked by the petitioner against the respondent. 2.14 Despite exchange of several letters between the petitioner and the respondent for appointment of an Arbitrator to adjudicate the dispute, however, the parties could not arrive at a consensus regarding appointment of Arbitrator. The respondent herein filed a petition under Section 11 of the Arbitration and Conciliation Act, 1996 before the Hon’ble High Court of Gujarat being Arbitration Petition No.111 of 2022. This Court, vide its order dated 28th February 2022, appointed the Hon’ble Tribunal to adjudicate the dispute between the parties i.e. the petitioner and the respondent. 2.15 The petitioner filed its statement of claim before the Hon’ble Arbitral Tribunal on 13th June 2022. The respondent filed its reply to the statement of claim on 5th August 2022. The petitioner filed its rejoinder on 5th September 2022. 2.16 The petitioner, thereafter, filed an application for impleadment of Aquafil and Wintech on the grounds stated in the application. In response thereto, the respondent filed reply dated 7th February 2023 opposing impleadment application. The respondent filed its reply to the statement of claim on 5th August 2022. The petitioner filed its rejoinder on 5th September 2022. 2.16 The petitioner, thereafter, filed an application for impleadment of Aquafil and Wintech on the grounds stated in the application. In response thereto, the respondent filed reply dated 7th February 2023 opposing impleadment application. 2.17 The said application for impleadment of Aquafil and Wintech was dismissed by the Hon’ble Arbitral Tribunal vide judgement and order dated 1st March 2023. 2.18 With the consent of parties, thereafter, issues were framed on 30th March 2023. 2.19 The application, at the instance of the petitioner, seeking striking off the counter claim of the respondent under Section 17 of the Arbitration and Conciliation Act, 1996, was dismissed by the Tribunal vide order dated 10th April 2023. 4. Being aggrieved and dissatisfied by the impugned order dated 1st March 2023, the petitioner has approached this Court by way of this petition under Articles 226 and 227 of the Constitution of India. 5. I have heard learned advocate Mr. Aditya Gupta for the petitioner and learned advocate Mr. Mitul Shelat assisted by learned advocate Mr. Rutul Desai for the respondent. 6. Learned advocate Mr. Aditya Gupta for the petitioner, while assailing the impugned order, has made the following submissions: 6.1 Learned advocate Mr. Gupta submitted that if the present petition is not entertained, as prayed for, the petitioner would be rendered remediless. He submitted that if it is held at the time of passing the final award that Aquafil and Wintech constituents of the JV were required to be joined, then the entire arbitral proceedings would be rendered futile on account of technicality. He further submitted that even if the award is passed in favour of the petitioner, the same would be set aside on this technicality that Aquafil and Wintech ought to have been joined. According to learned advocate Mr. Gupta, if Aquafil and Wintech are impleaded, then they can contest their impleadment before the learned Arbitrator, who can finally decide after leading evidence whether Aquafil and Wintech are necessary parties to the arbitration proceedings or not. Learned advocate Mr. Gupta submitted that the impugned order dated 1st March 2023 is perverse in nature. According to learned advocate Mr. Gupta, if Aquafil and Wintech are impleaded, then they can contest their impleadment before the learned Arbitrator, who can finally decide after leading evidence whether Aquafil and Wintech are necessary parties to the arbitration proceedings or not. Learned advocate Mr. Gupta submitted that the impugned order dated 1st March 2023 is perverse in nature. According to learned advocate Mr. Gupta, the learned Arbitrator though recorded that the respondent is an unincorporated entity having not independent in the eye of law, then also not dealt with the said aspect while refusing to join the constituent of the respondent. He submitted relying consortium of agreement that it is merely a name given to the association of two companies to carry out performance of the contract, therefore, two members, who sought to be impleaded, cannot be excused as not being signatories to the contract. Thus, according to learned advocate Mr. Gupta, the two constituents are jointly and severally liable, and thereby, the learned Arbitrator ought to have joined them in the arbitral proceedings for the effective delivery of justice. 6.2 Learned advocate Mr. Gupta submitted that the act of the respondent JV would, in fact, be an act of two constituents namely Aquafil and Wintech, and thereby, findings of the learned Tribunal that there is no privity of contract with Aquafil and Wintech since the agreement was not signed by them is perverse. 6.3 Learned advocate Mr. Gupta further submitted that reliance placed by the learned Tribunal in the case of Gammon India Ltd vs. Comsr. of Customs (2011) 12 SCC 499 ; New Horizons Ltd vs. Union of India (1995) 1 SCC 478 and Larsen & Toubro vs. Mumbai Metropolitan 2016 SCC Online Bom 13348, is completely distinguishable on facts and cannot be made applicable to the present case. 6.4 Learned advocate Mr. Gupta submitted that in one of the proceedings, emanating out of the contract dated 8th August 2014 between JWIL and the respondent JV, Aquafil had invoked the remedy of arbitration under the provisions of the MSME Act, 2006 on behalf of the JV. The said was challenged by JWIL before this Court by way of R/Special Civil Application No.11169 of 2018 on the ground that the respondent JV has an independent authority compared to its constituents Aquafil and Wintech, and therefore, Aquafil could not have invoked the remedy under the provisions of the MSME Act, 2006. Learned advocate Mr. The said was challenged by JWIL before this Court by way of R/Special Civil Application No.11169 of 2018 on the ground that the respondent JV has an independent authority compared to its constituents Aquafil and Wintech, and therefore, Aquafil could not have invoked the remedy under the provisions of the MSME Act, 2006. Learned advocate Mr. Gupta further submitted that in that proceeding, the stand taken by Aquafil was that the JV is unincorporated joint venture, which does not have any separate personality, and therefore, the right can be claimed through the constituents. Accordingly, learned advocate Mr. Gupta submitted that in the present proceedings, the third party, being Aquafil and Wintech, being constituents of the respondent JV, ought to have been joined in the proceedings. 6.5 Learned advocate Mr. Gupta submitted that the learned Arbitrator has committed a serious error in holding that in a proceeding under Section 11 of the Arbitration and Conciliation Act, 1996, no such objection with regard to locus standi was raised. 6.6 Learned advocate Mr. Gupta next submitted that the learned Tribunal has committed a further error in view of separate agreement entered into between the parties and the dispute relating to any question not falling under the Letter of Award dated 9th July 2015 cannot be included in the present proceedings. According to learned advocate Mr. Gupta, thus, the learned Arbitrator has completely travelled outside the scope of impleadment proceedings and without leading any evidence or trial, has observed that the dispute raised by the petitioner is outside the scope of Letter of Award dated 9th July 2015. Learned advocate Mr. Gupta, therefore, submitted that the findings recorded by the learned Arbitrator with regard to scope of Letter of Award dated 9th July 2015, at this stage, was not necessary and thereby, the impugned order passed on such finding requires to be quashed and set aside. 7. Per contra, learned advocate Mr. Mitul Shelat for the respondent, while supporting the impugned order, has made the following submissions: 7.1 Learned advocate Mr. Shelat for the respondent, at the outset, submitted that this Court may not entertain the present petition under Articles 226 and 227 of the Constitution of India by sitting as appellate court over the discretionary order passed by the learned Arbitral Tribunal. Learned advocate Mr. Shelat for the respondent, at the outset, submitted that this Court may not entertain the present petition under Articles 226 and 227 of the Constitution of India by sitting as appellate court over the discretionary order passed by the learned Arbitral Tribunal. Learned advocate Mr. Shelat further submitted that exercise of discretion by the learned Arbitral Tribunal is in accordance with law and does not suffer from any error of law. Mr. Shelat further submitted that the impugned order passed in the arbitration proceeding is amenable only in accordance with the provisions of the Arbitration and Conciliation Act, 1996. Therefore, remedy provided under the statute is at the stage of challenge to the award under Section 34 of the Act and thus, this petition under Article 227 of the Constitution of India may not be entertained. To substantiate its contentions, learned advocate Mr. Shelat has relied upon the decision of the Hon’ble Supreme Court in the case of Bhaven Construction vs. Sardar Sarovar Narmada Nigam Ltd reported in (2022) 1 SCC 75 . 7.2 Learned advocate Mr. Shelat further submitted that the present petition may also not be entertained on the ground of suppression of material fact at the instance of the petitioner. According to learned advocate Mr. Shelat, the petitioner has not disclosed about subsequent proceeding after the impugned order was passed i.e. framing of issues, the application filed under Section 17 and the order passed therein, oral evidence having been filed by the answering respondent. All these events, according to learned advocate Mr. Shelat, are material facts, and thereby, suppression thereof is a serious matter. Accordingly, learned advocate Mr. Shelat has requested this Court to dismiss the present petition on the count of suppression of material fact. 7.3 Learned advocate Mr. Shelat further submitted that the petitioner has not sought for any reference against the proposed third party and the petitioner has also not prayed for any relief against those third parties, and thereby, in absence of any relief claimed against the third parties, they may not be joined in the proceedings. 7.4 Learned advocate Mr. Shelat further submitted that as such the petitioner – claimant has entered into separate and independent agreement and/or contract with the proposed third party. Mr. Shelat submitted that admittedly, the petitioner has not sought any reference with respect to any dispute against the proposed third party pursuant to the aforesaid independent agreement. 7.4 Learned advocate Mr. Shelat further submitted that as such the petitioner – claimant has entered into separate and independent agreement and/or contract with the proposed third party. Mr. Shelat submitted that admittedly, the petitioner has not sought any reference with respect to any dispute against the proposed third party pursuant to the aforesaid independent agreement. Mr. Shelat, therefore, submitted that present arbitral proceeding is governed by the reference made by this Court and thus, if the application for impleadment, as sought for, is allowed, in that event, the scope of reference would also be enlarged and that is not permissible. Accordingly, the impugned order passed by the learned Arbitrator is perfectly justified. 7.5 Mr. Shelat next submitted that the present respondent is of joint venture and the same can sue or be sued independently as being a juristic person. Mr. Shelat, therefore, submitted that in view of the aforesaid proposition, the third party sought to be impleaded in the arbitral proceedings is unwarranted, and thereby, the learned Arbitral Tribunal has rightly rejected the request made by the petitioner. To substantiate the aforesaid contentions, Mr. Shelat has placed reliance on Gammon India Ltd. vs. Commissioner of Customs reported in (2011) 12 SCC 499 , more particularly, paras 28 and 30. 8. By making above submissions, learned advocate Mr. Shelat for the respondent prayed this Court to dismiss the present petition. 9. Learned advocate Mr. Gupta for the petitioner, in rejoinder, submitted that the present petition against the order refusing to implead the proposed parties is maintainable under Article 227 of the Constitution of India. Mr. Gupta, to substantiate the said contention, has relied upon the judgement of this Court in Pahal Engineers vs. Gujarat Water Supply and Sewarage Board [Letters Patent Appeal No.1011 of 2022 decided on 30th January 2023] as well as the judgement in the case of Narmada Clean-Tech vs. Indian Council of Arbitration [Letters Patent Appeal No.308 of 2020 decided on 19th August 2020]. 10. Learned advocate Mr. Gupta for the petitioner has, while countering the contention with regard to suppression of fact, submitted that concealment has to be vital and material. According to Mr. Gupta, the order framing issues and the order dismissing the application of the petitioner to strike off the counter claim of the respondent cannot be said to be concealment of material fact and thereby, according to Mr. According to Mr. Gupta, the order framing issues and the order dismissing the application of the petitioner to strike off the counter claim of the respondent cannot be said to be concealment of material fact and thereby, according to Mr. Gupta, argument of the respondent regarding suppression of material fact does not hold any force. 11. By making above submissions, learned advocate Mr. Gupta for the petitioner requested this Court to allow the present petition. 12. I have heard the learned advocates appearing for the parties and have gone through the material produced on record. No other and further submissions have been canvassed by the learned advocates appearing for the respective parties. 13. Having heard the submissions of the learned advocates appearing for the respective parties and having gone through the material produced on record, a short question that falls for consideration of this Court is whether the impugned order passed by the learned Arbitrator refusing to implead the proposed parties is legal and justified? 14. So as to decide the aforesaid question, certain facts, in brief, deserve to be taken into consideration, which are as under: (I) Two proposed parties namely M/s. Aquafil Polymers Company Limited and Wintech Engineers Private Limited, by way of Consortium Agreement dated 2nd August 2014, a joint venture was set up in the name of Aquafil Wintech JV in order to participate in the bid issued for working on Turnkey basis for the Guwahati Water Supply Project (37 MLD). Thus, Aquafil Wintech JV (respondent) has come into existence with its independent and legal status. The Aquafil Wintech JV (respondent) got the contract from JWIL – Ranhill JV on 8th August 2014 for Guwahati Water Supply Project; which includes procurement of design, supply, installation and commissioning of intake facilities, transmission mains, water treatment plant and reservoir for North Zone including 5 years of operation and maintenance. (II) For the purpose of execution of the aforesaid Guwahati Water Supply Project, the respondent entered into a subcontract with the petitioner by way of Letter of Award dated 9th July 2015. As per the agreement dated 9th July 2015, the petitioner was under obligation to deposit 2.5% of contract value towards performance, bank guarantee from a scheduled bank within 20 days with a validity of 28 months from the date of Letters of Award or commissioning of the project, whichever is earlier. As per the agreement dated 9th July 2015, the petitioner was under obligation to deposit 2.5% of contract value towards performance, bank guarantee from a scheduled bank within 20 days with a validity of 28 months from the date of Letters of Award or commissioning of the project, whichever is earlier. The petitioner failed in furnishing bank guarantee as per the terms of the Letter of Award. (III) As per Clause 8 of the Letters of Award, the delivery schedule was fixed, wherein the petitioner was under obligation to complete the work within 26 months from the date of receipt of the Letter of Award. The petitioner failed in complying with the said condition as per the time limit of the delivery schedule. (IV) Pertinently, the petitioner, on its own volition, entered into separate agreements with the separate and distinct entities, which are not concerned with the performance obligation of the petitioner under agreement dated 9th July 2015. Admittedly, those independent agreements not signed by the present respondent. The said agreements having separate arbitration agreement for a different scope of work with different arbitration venues. (V) Because of the dispute and differences between the petitioner and the respondent herein, the work of project becomes standstill, and resultantly, the respondent, vide its letter dated 10th July 2017, terminated the Letter of Award dated 9th July 2015 with immediate effect. (VI) The respondent, so as to resolve the dispute, approached this Court with the arbitration petition being R/Petn. Under Arbitration Act No.111 of 2020 for constitution of the Arbitral Tribunal. This Court, vide order dated 28th February 2022, appointed the learned Arbitral Tribunal to adjudicate the dispute and differences between the parties. (VII) The statement of claim came to be filed by the petitioner on 13th June 2022. The respondent filed its written statement on 5th August 2022. A rejoinder was filed on 5th September 2022. The respondent also filed counter claim. (VIII) An application for impleading parties was rejected by the Arbitral Tribunal vide order dated 1st March 2023. 15. Keeping in mind the aforesaid facts, in my considered opinion, first of all, scope and ambit of petition under Article 227 of the Constitution of India, in the context of the provisions under the Arbitration and Conciliation Act, 1996, requires to be considered. 15. Keeping in mind the aforesaid facts, in my considered opinion, first of all, scope and ambit of petition under Article 227 of the Constitution of India, in the context of the provisions under the Arbitration and Conciliation Act, 1996, requires to be considered. The Hon’ble Apex Court in catena of decisions held that intervention in the arbitration proceedings, at the instance of the High Court under Article 227 of the Constitution of India, should be in exceptional and rarest in rare case. At this stage, it would be apt to take note of the decision of the Hon’ble Supreme Court in the case of Bhaven Construction (supra) as under: “17. Thereafter, Respondent 1 chose to impugn the order passed by the arbitrator under Section 16(2) of the Arbitration Act through a petition under Article 226/227 of the Indian Constitution. In the usual course, the Arbitration Act provides for a mechanism of challenge under Section 34. The opening phase of Section 34 reads as “34. Application for setting aside arbitral award. - (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3)’. (emphasis supplied) The use of term “only” as occurring under the provision serves two purposes of making the enactment a complete code and lay down the procedure. 18. In any case, the hierarchy in our legal framework, mandates that a legislative enactment cannot curtail a Constitutional right. In Nivedita Sharma v. Cellular Operators Association of India, (2011) 14 SCC 337, this Court referred to several judgments and held: “11. We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto and prohibition under Article 226 of the Constitution is a basic feature of the Constitution and cannot be curtailed by parliamentary legislation - L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 . However, it is one thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a writ petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, and it is an altogether different thing to say that each and every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (emphasis supplied) It is therefore, prudent for a Judge to not exercise discretion to allow judicial interference beyond the procedure established under the enactment. This power needs to be exercised in exceptional rarity, wherein one party is left remediless under the statute or a clear ‘bad faith’ shown by one of the parties. This high standard set by this Court is in terms of the legislative intention to make the arbitration fair and efficient. 19. In this context we may observe M/s. Deep Industries Limited v. Oil and Natural Gas Corporation Limited, (2019) SCC Online SC 1602, wherein interplay of Section 5 of the Arbitration Act and Article 227 of the Constitution was analyzed as under: “16. Most significant of all is the non obstante clause contained in Section 5 which states that notwithstanding anything contained in any other law, in matters that arise under Part I of the Arbitration Act, no judicial authority shall intervene except where so provided in this Part. Section 37 grants a constricted right of first appeal against certain judgments and orders and no others. Further, the statutory mandate also provides for one bite at the cherry, and interdicts a second appeal being filed [See Section 37(2) of the Act]. 17. This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. 17. This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provision which remains untouched by the non obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction.” (emphasis supplied) 20. In the instant case, Respondent No. 1 has not been able to show exceptional circumstance or ‘”bad faith” on the part of the Appellant, to invoke the remedy under Article 227 of the Constitution. No doubt the ambit of Article 227 is broad and pervasive, however, the High Court should not have used its inherent power to interject the arbitral process at this stage. It is brought to our notice that subsequent to the impugned order of the sole arbitrator, a final award was rendered by him on merits, which is challenged by the Respondent No. 1 in a separate Section 34 application, which is pending. 21. Viewed from a different perspective, the arbitral process is strictly conditioned upon time limitation and modeled on the ‘principle of unbreakability’. This Court in P. Radha Bai v. P. Ashok Kumar, (2019) 13 SCC 445 , observed: “36.3. Third, Section 34(3) reflects the principle of unbreakability. Dr Peter Binder in International Commercial Arbitration and Conciliation in UNCITRAL Model Law Jurisdictions, 2nd Edn., observed: “An application for setting aside an award can only be made during the three months following the date on which the party making the application has received the award. Only if a party has made a request for correction or interpretation of the award under Article 33 does the time-limit of three months begin after the tribunal has disposed of the request. Only if a party has made a request for correction or interpretation of the award under Article 33 does the time-limit of three months begin after the tribunal has disposed of the request. This exception from the three-month time-limit was subject to criticism in the working group due to fears that it could be used as a delaying tactics. However, although “an unbreakable time-limit for applications for setting aside” was sought as being desirable for the sake of “certainty and expediency” the prevailing view was that the words ought to be retained “since they presented the reasonable consequence of Article 33”. According to this “unbreakability” of time-limit and true to the “certainty and expediency” of the arbitral awards, any grounds for setting aside the award that emerge after the three month time-limit has expired cannot be raised. 37. Extending Section 17 of the Limitation Act would go contrary to the principle of “unbreakability” enshrined under Section 34(3) of the Arbitration Act.” (emphasis in original) If the Courts are allowed to interfere with the arbitral process beyond the ambit of the enactment, then the efficiency of the process will be diminished.” 16. Now, applying the aforesaid ratio, in the facts of the present case, in my considered opinion, the petitioner failed to establish any exceptional and rarest circumstances, which would prompt this Court to exercise its power under Article 227 of the Constitution of India. In my view, non-joinder of parties would not render the petitioner remediless as has been apprehended. It is to be noted that joining of party, in any proceedings, cannot be on mere apprehension and/or on mere asking. The party seeking any party to be joined in a proceeding must come out with a clear and legal proposition of law. However, in the instant case, the petitioner has sought to join proposed parties mere on apprehension that the claimant might be rendered remediless, if the proposed parties are not joined. This Court is unable to understand as to how such apprehension is well-founded. More particularly, when the claimant has already entered into an independent agreement with proposed parties, thus, in case of any situation and/or dispute, by virtue of such agreement, resolution of dispute can be addressed in a particular form and manner, as agreed upon in the independent agreement. This Court is unable to understand as to how such apprehension is well-founded. More particularly, when the claimant has already entered into an independent agreement with proposed parties, thus, in case of any situation and/or dispute, by virtue of such agreement, resolution of dispute can be addressed in a particular form and manner, as agreed upon in the independent agreement. Even otherwise, as per the provisions of Section 34 of the Arbitration Act, the claimant would be at liberty to take any contention at the stage of appeal. Under the circumstances, the apprehension raised by the petitioner of being left out remediless has no valid legs to stand, and thereby, not worth accepting. This Court is further of the opinion that the party of the Arbitration Act is to deliver justice without any delay, and thereby, if the High Court, without any exceptional circumstances, intervenes in the arbitration proceedings, by exercising power under Article 227 of the Constitution of India, would amount to frustrate the very object of the Arbitration Act. Hence, the present petition does not deserve any indulgence by this Court in exercise of power under Article 227 of the Constitution of India. 17. So far as the contention with regard to suppression of material fact is concerned, this Court has a strong feeling that the petitioner has approached this Court by concealing material fact. I say so because after rejection of application for impleading parties, the very petitioner has, by way of consent, got the issues framed before the Arbitral Tribunal. In my view, framing of issues is the backbone of the entire proceedings. By way of issues, the right and obligations of the litigant are decided. Thus, the petitioner ought not to have settled the issues by consent and ought to have challenged the order of rejection of impleading parties in time. However, the petitioner challenged the order of rejection of impleading parties after the issues were settled by consent and the said fact not disclosed in the memo of petition, which, in my view, can be said to be material concealment. The petitioner has also not disclosed the subsequent event i.e. order passed under Section 17 by the Arbitrator. Under the circumstances, the petitioner has not approached this Court with absolutely clean hands. In addition to the aforesaid, this Court would not like to entertain the present petition. 18. The petitioner has also not disclosed the subsequent event i.e. order passed under Section 17 by the Arbitrator. Under the circumstances, the petitioner has not approached this Court with absolutely clean hands. In addition to the aforesaid, this Court would not like to entertain the present petition. 18. In addition to the aforesaid, I have gone through the order of the learned Arbitral Tribunal dated 1st March 2023. The same can thus be extracted as under: “It is not in dispute that the Claimant had entered into an Agreement with the Respondent on 09-07-2015. The said Agreement was signed by the Claimant and the Respondent and it was neither signed by Aquafil Polymers Company Pvt. Ltd nor Wintech Engineers Pvt. Ltd. Thus, there is no privity of Contract between the Claimant and the parties sought to be made by me Claimant vide the present Application, in fact, separate and independent Contracts have been executed try the Claimant with those parties. It is further not in dispute that Venue of Arbitration Proceedings in the present Agreement is Delhi / Ahmedabad (Cause 17), while in two other Agreements, Venue is only Delhi and there is no reference to Ahmedabad at all. The record shows that proceedings had been initiated by Aquafil-Wintech JV against Hitachi India Pvt. Lt. Seeking constitution of Tribunal in accordance with the Agreement dated 09-07-2015, i.e. only in this mater. The Hon'ble Court also, keeping a view the aforesaid Agreement and Application, constituted Arbitral Tribunal under the aforesaid Agreement. The question of locus standi of Respondent JV was neither raised before The Hon’ble High Court in the proceedings under Section 11 of the Act, nor such objection can even be raised Apart from the fact that Contract (Agreement) has been signed by the Claimant and the Respondent even in law, Joint Venture has always been considered a juristic person or legal entity. Reliance was placed in support of submission on the decisions of the Hon’ble Supreme Court in Gammon India Ltd. vs. Comsr. of Customs (2011) 12 SCC 499 ; New Horizons Ltd. vs. Union of India (1995) 1 SCC 478 ; and Larsen & Toubro vs. Mumbai Metropolitan, 2016 SCC OnLine Bom 13348. Reliance was placed in support of submission on the decisions of the Hon’ble Supreme Court in Gammon India Ltd. vs. Comsr. of Customs (2011) 12 SCC 499 ; New Horizons Ltd. vs. Union of India (1995) 1 SCC 478 ; and Larsen & Toubro vs. Mumbai Metropolitan, 2016 SCC OnLine Bom 13348. It was contended by the learned Advocate for the Respondent that on the facts of the case and in the light of separate Agreements Contracts by the Claimant with two other parties, the Claimant cannot be permitted to club those proceedings in the present proceeding by avoiding proper course and by sewing relief against them in the present matter. According to the Respondent, alleged payments were made to other parties under different Contracts and the Claimant cannot be allowed to club those proceedings by modifying the Reference and by claiming reliefs against them in respect of separate Contracts/ Agreements. As already indicated earlier, I am not expressing any opinion on merits of the matter. I, however, feel that in view of separate Agreements entered into between the parties, dispute relating to any question not falling under the present Agreement dated 09-07-2015 cannot be included in the present proceedings and, hence, Aquafil Polymers Company Pvt. Ltd. and Wintech Engineers Pvt. Ltd. cannot be joined as party Respondents in the present proceedings. For the aforesaid reasons, Application filed by the Claimant for joining Aquafil Polymers Company Private Limited as Respondent No.2 and Wintech Engineers Private Limited as Respondent No.3 in the present arbitral proceeding, is hereby rejected. Before parting with the matter, I may clarify that all findings recorded. conclusions reached and/or observations made in this order are tentative and prima face in nature and have been made for a limited purpose of deciding the Application filed by the Claimant. The Tribunal makes it clear that the parties are at liberty to urge alt points and raise all contentions available to them at the hearing stage without being influenced by these observations. Similarly, the Tribunal also makes it clear that it will consider all points raised by the parties without being influenced or inhibited by the observations made in this order.” 19. Considering the aforesaid, it appears that the learned Arbitral Tribunal has even otherwise kept all the rights and contentions open for arguments and its consideration, therefore, in my considered opinion, the petitioner is not going to be prejudiced. Considering the aforesaid, it appears that the learned Arbitral Tribunal has even otherwise kept all the rights and contentions open for arguments and its consideration, therefore, in my considered opinion, the petitioner is not going to be prejudiced. Accordingly, the present petition is not entertained and dismissed.