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2025 DIGILAW 1052 (KER)

Darshana, W/O. Saijumon. A. v. VS Sajjumon. A. V.

2025-04-11

SYAM KUMAR V.M.

body2025
JUDGMENT Petitioner has filed this O.P.(ATE) invoking Section 29 A of the Arbitration and Conciliation Act, 1996 (herein after referred to as the ‘Act of 1996’). 2. The grievance of the petitioner is that notwithstanding the fact that she is neither a proper party nor a necessary party to an ongoing arbitration proceeding numbered as ARC No.1 of 2024 before an Arbitrator appointed by this Court, she had been, vide an order dated 27.05.2024 in I.A.No.3 of 2024 in the said ARC impleaded as the additional 2 nd defendant in the said proceedings. Petitioner has challenged the said order of impleadment by filing M.A.(Arb) No.101 of 2025 before the Commercial Court, Ernakulam, which is presently pending consideration. A stay petition numbered as I.A. No.1 of 2025 has also been filed by her in the said proceeding. Petitioner is aggrieved that while the said stay petition is pending, the learned Arbitrator is rushing through with the arbitration proceeding, and the same now stands posted for evidence. Though the petitioner apprised the learned Arbitrator about the pending challenge, the petition filed by her in the said respect has been dismissed inter alia, pointing out that a time-bound disposal is an avowed mandate. This O.P. (ATE) is thus filed by the petitioner invoking Section 29 A of the Arbitration and Conciliation Act, 1996 , seeking the following reliefs: “(1) To call for records in I.A.No.2 of 2025 in ARC No.1/2024 of the Arbitral Tribunal and allow this Original Petition (Arbitration) by setting aside the order dated 10.03.2025 in I.A.No.2 of 2025 in ARC No.1/2024 of the Arbitral Tribunal (sole Arbitrator, S.K.Balachandran) ; (2) To stay further proceedings in ARC No.1/2024 pending before the sole Arbitrator, S.K.Balachandran till orders are passed by the Commercial Court, Ernakulam on Ext.P6 stay petition pending before that court ; (3) To pass such other orders as this Honourable Court may deem fit in the circumstances of the case.” 3. Heard the learned counsel for the petitioner and respondents. 4. At the outset, the learned counsel for the 2 nd respondent raised a question of maintainability of this O.P. (ATE) and submitted that the prayers sought in the O.P. (ATE) are not maintainable under Section 29 A of the Arbitration and Conciliation Act, 1996 , and hence the O.P. (ATE) is fit to be dismissed on the said ground. 4. At the outset, the learned counsel for the 2 nd respondent raised a question of maintainability of this O.P. (ATE) and submitted that the prayers sought in the O.P. (ATE) are not maintainable under Section 29 A of the Arbitration and Conciliation Act, 1996 , and hence the O.P. (ATE) is fit to be dismissed on the said ground. He terms the O.P. (ATE) as a misuse of process of court. Since the question of maintainability goes to the very root of the matter, I deem it necessary to consider the same at the very threshold. 5. Section 29 A of the Act of 1996 reads as follows: “29A.Time limit for arbitral award.— (1) The award shall be made within a period of twelve months from the date the arbitral tribunal enters upon the reference. 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. (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. for each month of such delay. (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.” It is clear from the reading of the said provision that the scope and mandate of Section 29 A of the Act of 1996 concerns the time limit of rendering an arbitral award, and that none of the prayers sought by the petitioner in this O.P.(ATE), viz., for setting setting aside the order of the Arbitrator and for staying the proceedings before the Arbitrator till orders are passed by the Commercial court in the pending stay petition, could be agitated nor are they per se maintainable in a petition filed under Section 29 A of the Act of 1996. The contention of the 2 nd respondent that the O.P. (ATE) itself is not maintainable and is fit to be dismissed in limine is thus valid and tenable. 6. Accordingly, I refrain from considering or discussing any of the contentions on merit put forth by the petitioner. This O.P. (ATE) is only to be dismissed, and it is ordered so. 7. 6. Accordingly, I refrain from considering or discussing any of the contentions on merit put forth by the petitioner. This O.P. (ATE) is only to be dismissed, and it is ordered so. 7. However, towards ensuring substantial justice and taking note of the fact that the learned Arbitrators mandate stands extended by a period of ten months vide order dated 11.04.2025 in O.P.(ATE) No.7 of 2025, the Commercial Court, Ernakulam, is hereby directed to dispose of I.A. No.1 of 2025 in M.A.(Arb) No.101 of 2025 pending before it as expeditiously as possible, at any rate within a period of two months from 19.05.2025. It is clarified that all questions of law and fact are left open to be decided by the Commercial Court, Ernakulam, in accordance with law. The learned Arbitrator while proceeding with ARC No.1 of 2024, may await the orders to be rendered in I.A.No.1 of 2025 in M.A.(Arb)No.101 of 2025, by the Commercial Court, Ernakulam, as directed above. O.P. (ATE) is dismissed. No costs.