Full Judgment Text
Neutral Citation Number: 2023/DHC/000401
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18.01.2023
+ O.M.P.(MISC.)(COMM.) 198/2022
BARASAT KRISHNAGAR EXPRESSWAYS LTD
..... Petitioner
Through: Mr.Anil K. Airi, Sr. Adv. with
Mr. Suryadeep Singh, Ms.
Radha R. Tarkar, Mr. Mudit
Ruhella & Ms. Sadhna Sharma
versus
NATIONAL HIGHWAYS AUTHORITY OF INDIA
..... Respondent
Through: Mr.Ankur Mittal & Mr.Raushal
Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
1. This petition has been filed under Section 29A of the
Arbitration and Conciliation Act, 1996 (hereinafter referred to as the
‘Act’) seeking extension of time for the learned Arbitral Tribunal to
pronounce its Award.
2. As disputes arose between the parties, the petitioner invoked the
Arbitration Agreement between the parties in March 2016. The parties
on 02.05.2016 entered into a Supplementary Agreement providing for
the arbitration to be conducted through ‘Arbitration Rules of the
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Society for Affordable Redressal of Disputes-Ports (SAROD-Ports)’
(hereinafter referred to as the ‘SAROD Rules’). The learned Arbitral
Tribunal was constituted on 02.06.2016. On expiry of the period of
one year, the parties agreed to grant six months’ further extension in
terms of Section 29A (3) of the Act to the learned Arbitral Tribunal to
pronounce its Award. The petitioner thereafter filed an application
under Section 29A of the Act before this Court.
3. In meantime, the Presiding Arbitrator of the learned Arbitral
Tribunal was also substituted on 13.09.2018. Subsequently, the
nominee arbitrator of the petitioner tendered his resignation and,
therefore, had to be substituted.
4. On a petition filed under Section 29A of the Act, the time for
making of the Arbitral Award was extended by a period of six months
with effect from 18.03.2021. The learned Arbitral Tribunal concluded
hearing the submissions of the parties on 25.09.2021. The learned
Arbitral Tribunal directed the parties to file their written submissions,
which were filed only on 09.01.2022. The parties further filed their
respective cost submissions on 10.03.2022.
5. By an e-mail dated 21.11.2022, addressed to the parties, the
learned Arbitral Tribunal, through the Presiding Arbitrator, requested
the parties to obtain an extension of around two to three months for
passing of the Arbitral Award.
6. The petitioner filed the present petition before this Court on or
about 24.11.2022.
7. After notice on the present application had been issued to the
respondent, the learned Arbitral Tribunal, through the Presiding
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Arbitrator, has informed the parties vide e-mail dated 19.12.2022 that
the preparation of the Arbitral Award is at an advance stage and can
be pronounced within a couple of weeks of the extension being
granted by this Court.
8. The learned counsel for the respondent, however, opposes this
application and submits that the present case requires the learned
Arbitral Tribunal to be substituted in terms of Section 29A (6) of the
Act. Drawing reference to Rule 37.2 of the SAROD Rules, he submits
that the said rules mandate the Arbitral Award to be pronounced
within 30 days from the date on which the hearing is closed and such
time can be extended only by the Secretary of the SAROD or with the
consent of the parties. He, however, fairly admits that the said
provision cannot derogate from the power that is vested in this Court
under Section 29A of the Act. He submits, the above default of the
Arbitral Tribunal would still be a sufficient reason for this Court to
exercise its powers under Section 29A(6) of the Act to substitute the
Arbitral Tribunal.
9. Placing reliance on the judgment of the Supreme Court in Anil
Rai v. State of Bihar , (2001) 7 SCC 318, he submits that the Supreme
Court, albeit in relation to the pronouncement of the judgments by the
Court, has framed guidelines prescribing time for pronouncement of
the judgment. In terms of the guidelines, in case the judgment is not
pronounced within a period of six months, either party may approach
the Chief Justice of the High Court with a prayer to withdraw the said
case and to make it over to any other Bench for fresh arguments. He
submits that applying a similar principle, this Court should, in fact,
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substitute the Arbitrators as the Award has admittedly not been
pronounced within a period of six months even from the date of
submission of the written submissions.
10. The learned counsel for the respondent, placing reliance on the
judgment of this Court in Director General, Central Reserve Police
Force v. Fibroplast Marine Pvt. Ltd , 2022 SCC OnLine Del 1335,
submits that delay in pronouncing an Arbitral Award can itself be a
ground for setting aside the Award. He submits that, therefore, the
Award which may be pronounced by the present Arbitral Tribunal
would be suspect and may be set aside only on this ground. He
submits that this warrants substitution of the Arbitral Tribunal.
11. I have considered the submissions made by the learned counsels
for the parties.
12. It is to be noted that even during the period of the COVID-19
pandemic, the Arbitral Tribunal made endeavors to proceed with the
Arbitral proceedings and, in fact, concluded hearing the parties on
25.09.2021. Direction was given to the parties to file their written
submissions, which they filed only on 09.01.2022. The parties filed
their submissions on cost on 10.03.2022. The learned senior counsel
for the petitioner has submitted that the parties have filed almost 60
volumes of pleadings/documents. The convenience compilation of
documents itself runs into around 30 volumes. It is, therefore, apparent
that the parties and the Arbitral Tribunal have expended considerable
effort in ensuring that the arbitral proceedings come to a culmination.
In case the Arbitral Tribunal is to be substituted at this stage, it would
negate all this effort.
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13. The learned counsel for the respondent is correct in his
submission that an inordinate delay in passing of an Award is
detrimental to the very object of arbitration, however, in my view,
effect of delay in making an Award is to be considered by the Court
once the Award is pronounced by the Arbitral Tribunal and is
challenged by either of the parties in accordance with law.
14. Keeping in view the facts of the present case, I am of the
opinion that the delay in pronouncing the Award itself does not
warrant exercise of powers vested in this Court under Section 29A (6)
of the Act.
15. The Arbitral Tribunal has now indicated that its Award would
be ready for pronouncement within a period of a couple of weeks.
16. In view of the above, I am of the opinion that the time for
making of the Award by the Arbitral Tribunal should be extended by a
further period of two months from today. It is ordered accordingly.
17. The petition is allowed in the above terms.
NAVIN CHAWLA, J
JANUARY 18, 2023/ rv
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