S. S. Chauhan and Sons v. Union of India, Executive Engineer (II), Trichy
2025-01-24
P.B.BALAJI
body2025
DigiLaw.ai
ORDER : 1. This is an application seeking to extend the time period for completion of the Arbitration Proceedings by six months. 2. I have heard Mr.Kunwar Chandresh, learned Counsel for the applicant and Mr.R.Rajesh Vivekananthan, learned Deputy Solicitor General of India for the respondents. I have also gone through the pleadings as well as the documents filed by way of typed of papers, including the decision of the Hon'ble Supreme Court, on which reliance is placed on by the learned Counsel for the respondent. 3. The case of the petitioner is that the sole arbitrator was appointed to adjudicate the disputes between the parties arising under Contract No. 02/ADG/EE(Trichy)-II/21-22 in respect of the tender contract for Rs.41,32,54,950/-. The applicant before this Court is the claimant before the Arbitral Tribunal. The respondent is the Union of India, Government Department, (CPWD). 4. The learned counsel for the Applicant would state that after trial, before the Arbitral Tribunal, the claimant and the respondent advanced final arguments and the same was concluded on 28.10.2023. Both parties sought for time to file written synopsis. Thereafter, the claimant has filed its written synopsis on 16.11.2023 and the respondent has filed its written synopsis on 18.11.2023. It is seen that subsequently, the claimant has moved an Application before the learned Arbitrator to pass an interim award in respect of part of Claim No.1, considering the nature of claim and heavy losses suffered by the claimant. Accepting the said request, the sole Arbitrator has also passed an interim award, partially allowing Claim No.1. In respect of the other Claims, the Arbitrator has not been able to pass a final award and hence, the Application has been filed seeking extension of the mandate of the Arbitrator. 5. This Application is vehemently opposed by the respondent. The learned Deputy Solicitor General of India appearing for the respondent would submit that subsequent to the Claim being filed, the respondent filed a statement of defense along with a counterclaim on 21.07.2023. A reply to the said rejoinder was filed by the claimant on 29.08.2023 and therefore, pleadings stood completed on 29.08.2023.
The learned Deputy Solicitor General of India appearing for the respondent would submit that subsequent to the Claim being filed, the respondent filed a statement of defense along with a counterclaim on 21.07.2023. A reply to the said rejoinder was filed by the claimant on 29.08.2023 and therefore, pleadings stood completed on 29.08.2023. According to the learned counsel for the respondent, at the request of the claimant, within one week from the date of request made by the claimant, on 21.11.2023, the learned Arbitrator has passed an interim award, within 7 days i.e., on 27.11.2023 without passing a final award, despite the matter being reserved only for passing of the final award. 6. The learned counsel for the respondent states that the very fact that such a hasty interim award has been passed, clearly exposes the bias in the conduct of the learned Arbitrator and the respondent has lost confidence in the sole Arbitrator and apprehends that the final award would not be impartial or independent. The learned counsel would also invite my attention to the objection dated 02.08.2024, in and whereby, the respondent has raised serious objections which have not been replied to by the learned Arbitrator till date. The learned counsel would also bring to my attention that the said Arbitrator has been removed from the list of CPWD impaneled Arbitrators by official memorandum of CPWD dated 23.07.2024. The learned counsel would therefore submit that the delay being solely attributable to the Arbitral Tribunal and not to either of the parties to the proceedings, the extension sought for cannot be granted. 7. The learned counsel would also place reliance on the decision of the Hon'ble Supreme Court in Rohan Builders (India) Pvt. Ltd. v. Berger Paints India Ltd. where the Hon'ble Supreme Court held that the power of the Court to extend the time should be exercised only in cases where there is sufficient cause for such extension and extension cannot be granted mechanically on filing of an Application and further held that judicial discretion of the Court in terms of the enactment Acts as a deterrent against any party abusing the process of law or exposing a frivolous or vexatious Application. 8.
8. In reply, the learned counsel for the petitioner also brought to my notice that subsequent to the passing of the interim award, substantial portion of the same has also been paid by the respondent and only a small portion to the tune of Rs.70 lakhs approximately is outstanding and being disputed by the respondent. The learned counsel would therefore submit that the allegations that the Arbitrator is being partial to the claimant is not just and proper. The learned counsel for the petitioner would also submit that the application has been filed well within time and therefore in view of the provisions of Section 29 of the Act, this Court can certainly extend the mandate of the Arbitral Tribunal. 9. I have paid my anxious consideration to the submissions advanced by the learned counsel on either side. I have also called for the original records from the learned Arbitrator and the learned Arbitrator has also forwarded the entire records and proceedings to the Registry of this Court. I have perused the same. 10. I find that in view of the counterclaim being made by the respondent, time was granted to the claimant to file a reply to the counterclaim on 21.07.2023 along with admission/denial of documents. On 06.09.2023 rejoinder along with admission/denial of documents was filed by the claimant. The respondent was granted time to file admission/denial of documents by 13.09.2023. Time was given to file reply to the counterclaim and admittedly, these pleadings were completed only with the filing of the reply to the counterclaim on 29.08.2023. Therefore, on this ground, I am unable to accept the argument of the learned counsel for the respondent that the 1 year time period would commence from 21.07.2023, since the pleadings stood completed only on the rejoinder and reply being filed to the counterclaim made by the respondent and therefore, the award ought to have been passed on or before 29.08.2024 and not 21.07.2024 as contended by the respondent. 11. In and by an order dated 10.08.2024, the learned Arbitrator has directed the claimant to approach this Court for extension of time. On 21.08.2024, well before the expiry of the period of 1 year, the claimant has filed the above Application seeking extension of the mandate of the learned Arbitrator.
11. In and by an order dated 10.08.2024, the learned Arbitrator has directed the claimant to approach this Court for extension of time. On 21.08.2024, well before the expiry of the period of 1 year, the claimant has filed the above Application seeking extension of the mandate of the learned Arbitrator. Under the second proviso to Section 29A(4) of the Act, it is provided that where an Application has been filed under sub-section 5 for extension of the period, the mandate of the learned Arbitrator shall continue till the disposal of the said Application. 12. Therefore, in view of the above statutory provision, the Court is empowered to extend the mandate of the Arbitral Tribunal, since the application has been made before the expiry of the 1 year period within which the learned Arbitrator is required to publish the award. The learned Arbitrator has already elaborately heard the parties and an interim award has also been passed acceding the request of the claimant due to certain exigencies. It is also an admitted position that the respondent has in fact settled major portion of the Claim No. 1 which has been partly allowed in favor of the claimant. 13. In any event, at the stage of extension of the mandate of the Arbitral Tribunal, this Court cannot go into the question of the conduct of the learned Arbitrator, especially the allegation with regard to the learned Arbitrator acting partially towards the claimant etc. In fact, from the records made available by the learned Arbitrator, it is also seen that the final award itself is ready to be published. In and by an order dated 18.12.2024, the learned Arbitrator has passed an order informing the parties that the award is ready for pronouncement and the award will be pronounced/published once the extension of time under Section 29A(5) is allowed by this Court. 14. In view of my finding rendered earlier that the Application under Section 29A(5) is in time and the mandate of the Arbitral Tribunal has not been terminated, post-July 2024, as contended by the learned counsel to the respondent, I am inclined to allow the Application and thereby extend the mandate of the Arbitral Tribunal to enable the Arbitral Tribunal to publish the award. 15.
15. For all the above reasons, this application is allowed and the mandate of the learned Arbitrator is extended by a period of 15 days from today.