The Judgment of the Court was delivered by
Anil K. Narendran, J.:— The petitioner, who is the claimant in the arbitral proceedings pending before the Sole Arbitrator, Mr. K. George Oommen, Retd. District Judge, is before this Court in this original petition filed under Article 227 of the Constitution of India, seeking the following relief;
“To grant a time period of six months to complete the arbitration proceedings between the petitioner and the respondent, pending before the Sole Arbitrator Mr. K. George Oomman, Retd. District Judge.”
2. Heard the learned counsel for the petitioner/claimant and also the learned counsel for the respondent/respondent.
3. During the course of arguments, the learned counsel on both sides would submit that under sub-section (5) of Section 29A of the Arbitration and Conciliation Ac, 1996 this Court is empowered to grant the extension of time sought for in this original petition.
4. Section 29A of the Arbitration and Conciliation Act, 1996, as inserted by the Arbitration and Conciliation (Amendment) Act, 2015, reads thus;
“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.
(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.”
5. As per sub-section (1) of Section 29A of the Act, the award shall be made by the arbitral tribunal within a period of twelve months from the date on which it entered upon the reference. The explanation to sub-section (1) makes it clear that, for the purpose of the said 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. Going by sub-section (3) of Section 29A, the parties may, by consent, extend the period specified in sub-section (1) for making award for a further period not exceeding six months.
6. As per sub-section (4) Section 29A, 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. Going by the proviso to sub-section (4), while extending the period under sub-section (4), 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.
7. Sub-section (5) of Section 29A provides that, 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. Sub-section (9) provides further that, 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.
8. clause (e) of sub-section (1) of Section 2 of the Arbitration and Conciliation Act, 1996 defines the term ‘Court’. Clause (e) of sub-section (1) of Section 2 of the Act, as it stood prior to its amendment by the Arbitration and Conciliation (Amendment) Act, 2015 reads thus;
(e) ‘Court’ means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;”
9. In Pandey and Co. Builders Pvt. Ltd. v. State of Bihar [(2007) 1 SCC 467] the Apex Court held that, the definition of ‘Court’ in clause (e) of sub-section (1) of Section (2) of the Arbitration and Conciliation Act, 1996 means the principal Civil Court of original jurisdiction in a district and included the High Court which exercises the original civil jurisdiction. If the High Court does not exercise the original civil jurisdiction, it would not be a ‘Court’ within the meaning of clause (e) of sub-section (1) of Section (2) of the Act. In the said decision the Apex Court held that, as the Patna High Court did not have original civil jurisdiction, the said Court was justified in holding that it had no jurisdiction to deal with an appeal filed under Section 37 of the Arbitration and Conciliation Act.
10. In State of West Bengal v. Associated Contractors [((2015) 1 SCC 32] a Three-Judge Bench of the Apex Court held that, under clause (e) of sub-section (1) of Section 2 of the Arbitration and Conciliation Act, 1996 the competent court is fixed as the principal Civil Court exercising original jurisdiction or a High Court exercising original civil jurisdiction, and no other Court.
11. clause (e) of sub-section (1) of Section 2 of the Arbitration and Conciliation Act, 1996 as substituted by the Arbitration and Conciliation (Amendment) Act, 2015 with effect from 23.10.2015, reads thus;
“(e) “Court” means—
(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Clauses;
(ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court.”
12. In the instant case, the arbitral proceedings before the Sole Arbitrator is in relation to a domestic arbitration, i.e, an arbitration other than international commercial arbitration. Going by sub-clause (i) of clause (e) of sub-section (1) of Section 2 of the Arbitration and Conciliation Act, in the case of domestic arbitrations, an application under sub-section (5) of Section 29A of the Act seeking extension of the period referred to in sub-section (4) of Section 29A, has to be made before the principal Civil Court of original jurisdiction in a district or the High Court in exercise of its original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit. Chartered High Courts under the Letters Patent can only exercise original civil jurisdiction. As this Court did not have original civil jurisdiction, it is not a ‘Court’ within the meaning of sub-clause (i) of clause (e) of sub-section (1) of Section (2) of the Act, for entertaining an application made by any of the parties to a domestic arbitration, i.e, an arbitration other than international commercial arbitration, seeking extension under sub-section (5) of Section 29A of the said Act. Registry has numbered this original petition without noticing the said fact.
13. In the result, this original petition fails and the same is accordingly dismissed as not maintainable, without prejudice to the right of the parties to the arbitration to move an application under sub-section (5) of Section 29A of the Arbitration and Conciliation Act, 1966 before the appropriate court, in terms of sub-clause (i) of clause (e) of sub-section (1) of Section (2) of the said Act.