Citation Codes

Equivalent Citations

citation codes

Case Number

AP/482/2019

Disposition

allowed

Advocates

Mr. S.N. Mitra, Sr. Adv., Ms. Suparna Mukherjee, Adv., Mr. Arik Banerjee, Adv., Mr. Niloy Sengupta, Adv., Ms. Swati Agarwal, Adv. ..
Mr. Kishore Datta, Advocate General., Mr. Jishnu Chowdhury, Adv., Mr. Sarvapriya Mukherjee, Adv., Mr. Sandip Dasgupta, Adv., Mr. Ayan De, Adv. ..

Judges

The Hon'ble Justice Arindam Sinha

Acts

ARBITRATION ACT 1940
SECTION 3 EVIDENCE ACT 1872
WEST BENGAL LAND REFORMS ACT
SECTION 14 LIMITATION ACT
provisions in the Act of 1996,
Act of 1996. Arbitration Act, 1940 had section 28
sub-section (4) of section 23,

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Smart Summary

Structured Summary of the Opinion (Arindam Sinha, J.)

Factual and Procedural Background

This opinion arises from a petition by the claimant in an arbitration reference seeking extension of time to conclude the reference under section 29A of the Arbitration and Conciliation Act, 1996. The petition was heard by this Court. The respondent's Advocate General, Mr. Datta, argued that section 29A allows only a once-only approach to the Court for extension. The petitioner relied on prior orders said to have extended the tribunal's mandate: an order of this Bench dated 27 September 2018 and a coordinate Bench order dated 3 January 2019 (the latter admitted by the respondent in paragraph 16 of their affidavit). The respondent had, during reference hearings, recorded a submission that the time to conclude the hearing had expired and that the parties should go to the High Court for further extension. The petition was filed on 24 July 2019. The Court heard arguments addressing the meaning and effect of section 29A (including its amendments), the scope of judicial intervention under the Act of 1996, and the applicability of section 14 of the Limitation Act, 1963. The Court granted the petition and extended time to conclude the reference up to 30 June 2021, and allowed the petition accordingly.

Legal Issues Presented

Whether an application to the Court under section 29A of the Arbitration and Conciliation Act, 1996 for extension of time to make an award can be made more than once (i.e., whether the Court's power to extend time is a "once only" remedy).
Whether, after the arbitral tribunal's mandate terminates on expiry of the period under section 29A, the parties can seek adjudication before the Court by availing exclusion of time under section 14 of the Limitation Act, 1963 (and whether an arbitral tribunal qualifies as a "Court of first instance" or a "court" for that purpose).
Relatedly, whether the concepts of "defect of jurisdiction or other cause of a like nature" in section 14 of the Limitation Act apply to a situation where the tribunal's mandate has ended.

Arguments of the Parties

Respondent's (Mr. Datta) Arguments

Primary contention: Section 29A permits only a single approach to the Court for extension. The omission of the words "from time to time" (present in section 28 of the repealed Arbitration Act, 1940) manifests Parliament's deliberate intention to restrict repeated recourse to the Court.
Historical and legislative context: Section 29A was inserted following consideration of the Law Commission's report (Arbitration (Amendment) Bill, 2001); relevant report paragraphs were cited (2.21.1, 2.21.4, 2.21.5, 2.42 and paragraph 27) to show Parliament departed from the recommendation that would have allowed recurring extensions.
Authorities relied on for statutory interpretation: Ram Saha v. State of West Bengal; Abdur Rahim v. Mahomed Barkat Ali (quoted passage about considering the previous law when an amendment is said to make substantial changes); Lmj International Limited v. Swiss Singapore Overseas Enterprises (reference to various English and Indian decisions).
On the consequences of the tribunal becoming functus officio: once the tribunal's mandate terminates after exhausting section 29A remedies, parties must move the Court; exclusion of time under section 14 of the Limitation Act may operate (and the tribunal constitutes or is akin to a "Court of first instance" for the purposes of section 14), with the phrase "defect of jurisdiction or other cause of a like nature" applying.
Authorities relied upon for quasi-judicial character and limitation law: Srei Infrastructure Finance Ltd. v. Tuff Drilling Pvt. Ltd. (arbitral reference as quasi-judicial proceeding), M.P. Steel Corporation v. Commissioner of Central Excise (expansion of section 14 application beyond Courts), A.P. Power Coordination Committee v. Lanco Kondapalli (following M.P. Steel), P. Sarathy v. State Bank of India, and Nahar Industrial Enterprises Ltd. v. HSBC (for principles on tribunal/court distinctions and limitation consequences).
On the conduct of the petitioner's counsel in reference hearings: the recorded submission that parties should approach the High Court for further extension cannot be construed (by itself) to confer jurisdiction or justify repeated petitions.

Petitioner's (Mr. Mitra) Arguments

Fact-based submissions: There were two prior orders extending the tribunal's mandate — the Bench's order of 27 September 2018 and a coordinate Bench order dated 3 January 2019 (the latter stated to be passed under section 29A(6)) and that the respondent admitted the January 2019 extension in their affidavit.
Legal submissions on section 29A: Section 29A contains no express limit on the number of times a party may approach the Court for extension; other provisions in the Arbitration Act (Sections 5, 34, 37) contain explicit time limits where intended, demonstrating Parliament knew how to impose temporal limits when desired.
Limitation Act contention: Section 14 of the Limitation Act, 1963 is not applicable to compel parties to approach Court after termination of the tribunal's mandate because the reference could not be said to have "proceeded" before the tribunal where there is a defect of jurisdiction or similar cause.
On precedents and rulings: Reliance on an order in AP 337 of 2019 (Hindustan Construction Co. Ltd. v. Kolkata Metropolitan Development Authority) dated 31 July 2019 (a view not distinguished by respondent). He also relied on Army Welfare Housing Organisation v. Sumangal Services (P) Ltd. for the proposition that an arbitral tribunal is not a court of law and does not exercise judicial functions.
On legislative policy: The Law Commission's report recommended leaving to the Court to fix an upper limit in specific situations (e.g., whether to cap extension at 24 months or more) to ensure an award is ultimately passed; Parliament did not simply adopt the recommendation verbatim, and the petitioner argued that the statutory regime should be interpreted to facilitate conclusion of references rather than to create an absolute bar on repeated court applications.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ram Saha v. State of West Bengal, (2004) 11 SCC 497	Used on statutory interpretation — caution against reading into an enactment words omitted by Legislature; example where High Court expanded scope of a statutory provision (section 4A of West Bengal Land Reforms Act).	The Court considered Ram Saha as relied on by respondent to argue omission of "from time to time" could not be supplied by interpretation. The Court concluded Ram Saha did not support the respondent's contention that section 29A allows only a single court approach.
Abdur Rahim v. Mahomed Barkat Ali, (1927-28) 55 IA 96	Principle that when an amendment is claimed to effect substantial change, one must consider prior law to see if the words effect the suggested change.	The Court noted the principle but held it did not aid the respondent: section 29A was a later incorporated provision and the historical comparison with the 1940 Act did not lead to the conclusion that only a single approach to Court was intended.
Lmj International Ltd. v. Swiss Singapore Overseas Enterprises Pte Ltd., (2016) 4 CHN 486	Carries references to multiple English and Indian authorities relevant to interpretation (as cited by respondent).	The decision was cited by respondent; the Court recorded that it had been relied upon but its specific application to the present question was not adopted as dispositive.
Srei Infrastructure Finance Ltd. v. Tuff Drilling Pvt. Ltd., (2018) 11 SCC 470	Arbitral reference characterized as a quasi-judicial proceeding (relevant to limitation and section 14 arguments).	Relied upon by respondent to support the argument that section 14 could apply; the Court considered such authorities but proceeded to decide the petition on statutory grounds under section 29A and therefore did not decide the section 14 issue.
M.P. Steel Corporation v. Commissioner of Central Excise, (2015) 7 SCC 58	Expansion of the application of section 14 of the Limitation Act beyond traditional courts.	Relied upon by respondent for the contention that exclusion of time under section 14 may apply; the Court recorded the reliance but left the section 14 question undecided as unnecessary to the primary determination.
A.P. Power Coordination Committee v. Lanco Kondapalli Power Ltd., (2016) 3 SCC 468	Followed M.P. Steel on expansion of section 14's application.	Noted as following M.P. Steel; used by respondent in argument. The Court did not decide the resulting limitation questions as they were not necessary to dispose of the petition.
P. Sarathy v. State Bank of India, (2000) 5 SCC 355	Authorities cited by respondent in support of treating a tribunal as akin to a forum for limitation purposes (context supplied by respondent).	Relied upon by respondent; the Court recorded the citation but did not resolve the underlying tribunal-vs-court limitation question, as it was unnecessary to decide given the main conclusion on section 29A.
Nahar Industrial Enterprises Ltd. v. HSBC, (2009) 8 SCC 646	Discussion on distinctions between "tribunal", "court" and "civil court" for evidentiary and other law purposes.	Relied upon by respondent; the Court recorded and engaged with the authorities but did not answer the question whether an arbitrator is a "court" for purposes of section 14, as that issue was not required to be decided.
Md. Army Welfare Housing Organisation v. Sumangal Services (P) Ltd., (2004) 9 SCC 619	Passage for the proposition that an Arbitral Tribunal is not a court of law and cannot exercise judicial powers beyond the agreement.	Relied upon by petitioner (Mr. Mitra) to counter the respondent's section 14 arguments. The Court recorded the citation but did not resolve the broader questions about section 14 applicability.
Hindustan Construction Co. Ltd. v. Kolkata Metropolitan Development Authority (AP 337 of 2019), order dated 31 July 2019	Order of this Bench addressing whether the Court's discretion to extend time under section 29A is circumscribed to a single exercise and related issues.	The petitioner relied on this Bench's view. The Court reproduced and found the reasoning persuasive and supportive of the petitioner's case that the Court's discretion in extending time is not confined to a single exercise.

Court's Reasoning and Analysis

The Court conducted a statutory and contextual analysis of section 29A as inserted into the Arbitration and Conciliation Act, 1996 (and as subsequently amended). The reasoning proceeded along these principal lines:

Text and legislative history of section 29A: The Court summarized the operative scheme — a 12-month period for making an award from the date the tribunal enters upon the reference, a possible 6-month extension by consent of parties, and the provision that the tribunal's mandate terminates unless the Court extends the time either before or after expiry, on sufficient cause and on such terms as the Court may impose.
The Court drew attention to attendant powers the statute confers on the Court when extending time: the proviso in subsection (4) allows reduction of arbitrator fees (with procedural safeguards such as opportunity to be heard), subsection (6) permits substitution of arbitrators, and subsection (8) permits imposition of costs. These powers, in the Court's view, demonstrate that the extension mechanism is a means to regulate completion of the reference rather than to create a single, once-only recourse.
Consideration of amendments (including 2019 amendments): The Court noted that amendments shifted the commencement date in some respects and added the proviso in subsection (4) (with an opportunity to be heard where fees are reduced). The Court acknowledged that the petition was filed on 24 July 2019 (before the 2019 amendments came into effect on 30 August 2019) but observed that even under the earlier amendment regime (2015), the Bench's prior view in Hindustan Construction Co. (supra) finds support from the Legislature's manifest intention to see references concluded.
On the argument from omission (absence of the words "from time to time"): The Court examined respondent's reliance on prior law (the 1940 Act's section 28) and argued authorities proffered by respondent (Ram Saha; Abdur Rahim) addressing how omitted words should be treated. The Court concluded that the omission of the phrase in the 1996 Act (and later inserted section 29A) does not mandate an interpretation that the Court's power to extend may be exercised only once. The Court reasoned that the statutory structure, including specific powers to regulate an extant reference, supports a construction that the Court's discretion is not limited to a single exercise.
On related limitation and jurisdictional questions: The Court expressly held that because it reached its conclusion on the principal question regarding the scope of section 29A, it was unnecessary to decide subsidiary legal issues — specifically whether the phrase "defect of jurisdiction or other cause of a like nature" in section 14 of the Limitation Act applies, or whether an arbitrator is a "court" for the relevant purposes.
Remedy and practical consequence: Having decided that the Court's discretion under section 29A is not confined to a single exercise and that the petition could be entertained, the Court exercised its discretion to grant an extension of time to conclude the reference to 30 June 2021. The Court declined to make directions concerning inquiries into causes of delay because the parties did not invite the Court to adjudicate that issue.

Holding and Implications

Holding (core ruling): THE PETITION IS ALLOWED — the Court grants an extension of time to conclude the arbitration reference up to 30 June 2021.

Implications:

Direct effect: The petitioner's request for extension of time to conclude the reference was granted and the tribunal's mandate (for the purpose of concluding the reference) is extended to 30 June 2021.
On broader implications: The Court concluded that interpretation of section 29A does not restrict the Court to a single extension application; however, the opinion did not adjudicate ancillary issues about applicability of section 14 of the Limitation Act or whether an arbitral tribunal constitutes a "court" for limitation purposes. The opinion does not set out further directions concerning causes of delay since the parties did not seek such adjudication.

Note: This summary is limited to and strictly reflects the arguments, authorities and reasoning contained in the provided opinion. No facts or holdings beyond those in the opinion have been introduced.

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SENBO ENGINEERING LIMITED v. HOOGHLY RIVER BRIDGE COMMISSIONERS

Arindam Sinha, J.:— The Court:— The arbitration petition for extension of time has been heard. Petitioner is claimant in the reference and has petitioned for extension of time to conclude it. Mr. Datta, learned senior advocate, Advocate General appeared on behalf of respondent and argued, the petition is misconceived because section 29A in Arbitration and Concilliation Act, 1996 allows a once only approach to Court for the purpose.

2. Mr. Datta submitted, there is deliberate intention of Parliament, manifest by omission of the words “from time to time” in section 29A, used in section 28 of repealed Arbitration Act, 1940 regarding extension of time for making the award. Section 29A was inserted by amendment on consideration of report of the Law Commission on Arbitration (Amendment) Bill, 2001. He referred to paragraphs 2.21.1, 2.21.4, 2.21.5, 2.42 and paragraph 27 in the report. He submitted, the recommendation also had the words but Parliament acted otherwise in omitting them. In that context he relied on following judgments on interpretation of statutes:

i. Sri. Ram Saha v. State of West Bengal reported in (2004) 11 SCC 497, paragraphs 19 to 24;

ii. Abdur Rahim v. Mahomed Barkat Ali reported in (1927-28) 55 IA 96, page 103 for the passage quoted below:

“It is a sound rule of interpretation to take the words of a statute as they stand and to interpret them ordinarily without any reference to the previous state of the law on the subject or the English law upon which it may be founded; but when it is contended that the legislature intended by any particular amendment to make substantial changes in the pre-existing law, it is impossible to arrive at a conclusion without considering what the law was previously to the particular enactment and to see whether the words used in the statute can be taken to effect the change that is suggested as intended. For this reason it becomes necessary to consider how the law stood prior to the enactment of s.92 of the Code of Civil Procedure of 1908.”

iii. Lmj International Limited v. Swiss Singapore Overseas Enterprises Pte Limited reported in (2016) 4 CHN 486, page 4, which carries reference to five judgments of English Courts, Supreme Court and this Court.

3. On consequences of a reference becoming abortive after exhausting recourse to provisions in section 29A, his contention being that Court can only extend time once, he submitted, for thereafter resolution of the dispute, Court has to be moved. The litigant can avail of exclusion of time provided under section 14 in Limitation Act, 1963. This exclusion by the section has been expanded to apply to quasi judicial proceedings. He relied on judgments of Supreme Court.

i. Srei Infrastructure Finance Limited v. Tuff Drilling Private Limited . reported in (2018) 11 SCC 470, paragraphs 13, 14 and 26 for arbitration reference being a quasi judicial proceeding;

ii. M.P. Steel Corporation v. Commissioner Of Central Excise . reported in (2015) 7 SCC 58, paragraphs 1 to 3, 11, 21, 34 and 35 for declaration of law expanding application of section 14, Limitation Act, 1963 to beyond Courts; and

iii. A.P. Power Coordination Committee v. Lanco Kondapalli Power Ltd. reported in (2016) 3 SCC 468 in following M.P. Steel Corporation (supra).

4. Mr. Mitra, learned senior advocate appeared on behalf of petitioner. On facts he referred to order dated 27 September, 2018, of this Bench, to demonstrate that thereby there was first extension of time for mandate. Subsequently by order dated 3 January, 2019, passed by coordinate Bench, there was second extension of time for mandate. That such was extension stands admitted by respondent in paragraph 16 of their affidavit in opposition affirmed on 3 September, 2019. There is clear averment that order dated 3 January, 2019, was passed under section 29A(6). Respondent's submission, thereafter in 66 sitting of the reference, was recorded as follows:—

“After withdrawal of the cease work call, the next hearing was held on June 15, 2019 when it was submitted on behalf of the Respondent that going by the order of the Hon'ble High Court the time to conclude the hearing within four months had expired. Hence, the parties should go before the High Court for further extension of time.”

5. As such, respondent now cannot obstruct there being extension of time to conclude the reference.

6. He then drew attention to provisions in the Act of 1996, regarding interference by Court. Section 5 limits extent of judicial intervention as confined to, intervention where provided in part one. Section 34, dealing with setting aside of award, has in it sub-section (3) limiting time, in which Court can entertain an application, being three months and thirty days but not thereafter. Section 37 limits orders, from which appeal would lie. He submitted, there is no limit, on approach to Court, provided in section 29A.

7. On cases cited by respondent he submitted, order dated 31 July, 2019 in AP 337 of 2019 (Hindustan Construction Co. Ltd. v. Kolkata Metropolitan Development Authority) was brought to notice of respondent by Court but was not distinguished, as not applicable to its contention. He submitted further, view taken therein has not been interfered with till date.

8. He then referred to Sri. Ram Saha (supra), to paragraph 24. He submitted, the Supreme Court found that the High Court had expanded scope and application of section 4A in West Bengal Land Reforms Act, 1955. In entertaining repeated plea for extension of time the High Court would not be expanding scope or application of section 29A. He reiterated, there is no limitation in the provision akin to those provided in sections 5, 34 and 37 of the Act of 1996. On Abdur Rahim (supra) he submitted, section 29A was incorporated by amendment. The decision would not apply to it inasmuch as this was not amendment made of an existing provision, to cause substantial change to it. The provision is a subsequent incorporation by amendment and as such the decision does not go in aid of respondent's contention.

9. Mr. Mitra drew attention to report of the Law Commission, in particular paragraphs 2.21.4 and 2.21.5. Recommendation was that it be left to Court to fix upper limit regarding the time of extension, in context of situation contemplated, of whether the extension should be capped at 24 months or allowed to be more. It was reported that proposal was to see that an arbitral award is ultimately passed even if the delays have taken place. Mr. Mitra also submitted, section 14 in Limitation Act, 1963 is not applicable for the purpose of parties being compelled to approach Court on termination of mandate since the reference could not be said to have proceeded before the Tribunal, on it having suffered from defect of jurisdiction or other cause of a like nature.

10. Mr. Datta, with reference to sub-section (1) in section 14 of the Limitation Act, emphasized on three phrases in the sub-section, being ‘civil proceeding’, ‘Court of first instance’ and ‘defect jurisdiction or other cause of a like nature’. According to him, Arbitral Tribunal would be included in ‘Court of first instance’, subject matter of the reference being indisputably ‘civil proceeding’. When, Arbitral Tribunal loses its mandate, on exhausting time provided under the Act, at the first instance and on extension by the one approach to Court, the phrase ‘defect of jurisdiction’ becomes applicable to it and the civil proceeding thereafter cannot be prosecuted before the Tribunal. He relied on judgments of the Supreme Court.

(i) P. Sarathy v. State Bank Of India . reported in (2000) 5 SCC 355, paragraphs 8 to 15.

(ii) Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation reported in (2009) 8 SCC 646 paragraphs 86 and 89.

11. With regard to his client's conduct in the reference regarding record of submission made on its behalf, he submitted that without going into correctness of it, same cannot be construed as consent or even if it is, it cannot confer jurisdiction to this Court to entertain repetitive petition for extension of time.

12. In dealing with the judgments noted in last preceding paragraph, Mr. Mitra relied on judgment of the Supreme Court in Md, Army Welfare Housing Organisation v. Sumangal Services (P) Ltd. reported in (2004) 9 SCC 619, paragraph 43 for said Court's view on Arbitral Tribunal not being Court. The paragraph is extracted below:—

“43. An Arbitral Tribunal is not a court of law. Its orders are not judicial orders. Its functions are not judicial functions. It cannot exercise its power ex debito justitiae. The jurisdiction of the being confined to the four corners of the agreement, he can only pass such an order which may be the subject-matter of reference.

13. He concluded by pointing out that in Nahar Industrial Enterprises Ltd. (supra), the Supreme Court said following in paragraph 67, extracted below:—

“67. The terms “tribunal”, “court” and the “civil court” have been used in the Code differently. All “courts” are “tribunals” but all “tribunals” are not “courts”. Similarly all “civil courts” are “courts” but all “courts” are not “civil courts.” It is not much in dispute that the broad distinction between a “court” and a “tribunal” is whereas the decision of the “court” is final the decision of the “tribunal” may not be. The “tribunal”, however, which is authorised to take evidence of witnesses would ordinarily be held to be a “court” within the meeting of Section 3 of the Evidence Act, 1872. It includes not only Judges and Magistrates but also persons, except arbitrators, legally authorised to take evidence. It is an inclusive definition. There may be other forums which would also come within the purview of the said definition.”

14. This petition with prayer for extension of time to conclude the reference is not the first approach to Court. Hence, requirement for adjudication of respondent's contention. Similar contention was raised before this Bench in AP 337 of 2019 (Hindustan Construction Company Ltd. v. Kolkata Metropolitan Development Authority), dealt with by order dated 31 July, 2019. During course of hearing, on recollection of having taken a view therein, same was brought to notice of respondent. Petitioner relied on it. The view expressed is reproduced below:

“It is clear that intention of Legislature in inserting this provision regarding time limit for arbitral award is with object of expeditious resolution of disputes. Where there is arbitration agreement between parties, their disputes must be addressed and adjudicated by reference. Interference of Court is limited. That means the disputes cannot be adjudicated by Court. Therefore, if in a situation mandate of a Tribunal is terminated by expiry of the period, what will happen to adjudication of the disputes? Respondent in contending Court can extend only once, this being prayer for second extension by Court, cannot ask for recourse to sub-section (6), which provides for substitute arbitrator being appointed, to continue with the reference. On considering stage of proceedings and conduct of it on pleadings submissions, Court is not convinced recourse to sub-section (6) is to be had. Mr. Mitra's argument is also of substance since, if Court extends the time by substituting arbitrator, it can do so on a finding in terms of proviso under sub-section (4). As such, Court is convinced its discretion is not circumscribed to be exercised only once in the matter of extending the time.”

15. So it was that respondent submitted regarding subsequent step to obtain remedy of adjudication from Court, upon getting excluded time spent in the reference.

16. The Act of 1996, on enactment, did not have provision limiting time for arbitral award. Section 29A was incorporated by amendment. The provision requires award to be made within 12 months from the date the Arbitral Tribunal enters upon the reference. 6 months extension of the period can be had on consent of parties, after which mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after expiry of the period, extended it. The extension by Court may be on the application of any of the parties. The ground may be only for sufficient cause and on such terms and conditions as may be imposed by the Court.

17. The power of Court to grant extension of time is attended by several other things that Court can do in the matter. Proviso in sub-section (4) says that while extending the period, if Court finds the proceedings have been delayed for reasons attributable to the Tribunal, then it may order reduction of fees of arbitrator(s) by not exceeding 5 per cent for each month of such delay. On approach to Court, either upon expiry of the 12 months period or said period extended by further 6 months on consent of parties, a finding on delay caused in aforesaid periods is possible. This indicates it to be a first step in regulating procedure adopted by the Tribunal dealing with the reference in the prescribed time period. Then there is provided in sub-section (6) that it shall be open to the Court to substitute one or all of the arbitrator(s) and subsection (8) provides that it shall be open to the Court to impose actual or exemplary cost upon any of the parties, under the section.

18. Whether extension of time to conclude the reference can be had from Court on a once only approach can be answered by analyzing provisions in the section. Provision for Court's attendant powers, to reduce fees of arbitrator(s) or substitute them, have been made by successive separate sub-sections. The incorporated subsection (1) said, the period of 12 months commences from the date the arbitral Tribunal enters upon the reference. By the newly substituted sub-section, the commencement date was pushed back to be date of completion of pleadings under sub-section (4) of section 23, brought in by amendment of 2019. Also by amendments of 2019 was incorporated, inter alia, the proviso in sub-section (4). Further included incorporated proviso under sub-section(4) mandates for the arbitrator to be given opportunity of being heard before the fees is reduced, obviously indicating that an enquiry on causes of delay may result in finding that the delay was not caused by the Tribunal. Amendments of 2019, to the section, are with effect from 30 August, 2019. This petition was filed on 24 July, 2019. Even adjudicating the question raised in the petition on basis of amendments of 2015, view taken by this Bench in Hindustan Construction Company Ltd. (supra) appears to find support from the Legislature's manifest intention, for the reference being concluded.

19. Sri. Ram Saha (supra) was relied upon by Mr. Datta on submission that phrase ‘time to time’ stands omitted from the provisions in section 29A, which phrase cannot be imparted into it by analogy, on supplying the omission of engrafting on it or introducing in it, under the guise of interpretation. To do so would be entrenching upon the preserves of the Legislature. The Supreme Court, in dealing with a case where the High Court had extended scope of application of section 4A in West Bengal Land Reforms Act, 1955 to areas in State of West Bengal other than the specified area, being three subdivisions of Darjeeling district, had referred to its this earlier decision. Also in the context Abdur Rahim (supra) was relied upon for that when it is contended the Legislature intended, by any particular amendment, to make substantial changes in the pre-existing law, it is impossible to arrive at a conclusion without considering what the law was previously to the particular enactment, to see whether the words used in the statute can be taken to effect the change that is suggested as intended. These guides of interpretation cannot be employed in aid of respondent's contention. Substantial change in arbitration law was brought about by the Act of 1996. Arbitration Act, 1940 had section 28 providing for extension of time to conclude the reference, as could be made by Court from ‘time to time’. The 1996 Act did not have in it a provision for extension of time to conclude the reference. Interpretation on this can well be that the Legislature thought fit to do away with procedure of repeated approach to Court for extension of time, to leave the Tribunal to conclude the reference without limitation of period, in which to do it. Instead, the omission would have to be taken into consideration for purpose of interpreting section 29A, later incorporated by amendment of 2015 with further amendments made to it. Such consideration does not lead to conclusion that approach to Court for extension of time can be only once.

20. Consequent upon view taken above, the other legal issues of, ‘defect of jurisdiction or like nature’ or whether ‘Arbitrator’ is ‘Court’ are not required to be answered.

21. There will be extension of time to conclude the reference. The extension will be up to 30 June, 2021. As parties did not invite Court to adjudicate on causes of delay, no direction is being made in respect thereof.

22. The petition is allowed as above.

SENBO ENGINEERING LIMITED v. HOOGHLY RIVER BRIDGE COMMISSIONERS

Structured Summary of the Opinion (Arindam Sinha, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondent's (Mr. Datta) Arguments

Petitioner's (Mr. Mitra) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

SENBO ENGINEERING LIMITED v. HOOGHLY RIVER BRIDGE COMMISSIONERS

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