Exclusive jurisdiction of the Supreme Court for extending the mandate of an arbitral tribunal in international commercial arbitrations under Section 29A of the Act.

ORDER :

1. These are applications filed under Section 29A of the Arbitration and Conciliation Act,1996 (for short 'the Act') whereby the petitioner has prayed that the mandate of the arbitral tribunal be extended for a period of six months, for the arbitral tribunal to conclude the arbitral proceedings and make an award. The following are the prayers as made in the petitions:

“(a) that this Hon'ble Court be pleased to extend the time period for making the award in the arbitration proceedings pending between the Petitioner and Respondent before the learned Sole Arbitrator Mr.Justice F.I.Rebello (Retd.) by a period of 6 (six) months or for such other period, from August 20, 2019, as this Hon'ble Court deems fit; and

(b) for such other and further reliefs as this Hon'ble Court deems just and proper in the nature and circumstances of the present case.”

2. At the outset it may be observed that the arbitration in question is an international commercial arbitration. The Supreme Court by an order dated 9 August 2017 passed under Section 11(5) of the Act was pleased to appoint an arbitral tribunal. The said order reads as under:

“1. We have heard the learned Senior Counsel appearing for the parties.

2. This is an application under Section 11(5) of the Arbitration and Conciliation Act,1996 to appoint an Arbitrator. In the contract between the parties, the arbitration clause, being Clause 17, is set out as follows:

“17. Arbitration:

(a) All disputes or difference between the parties under or in connection with this Agreement or any breach thereof shall be sought to be referred to the Chief Engineer (Infrastructure Plan).

(b) If such differences or disputes as between the parties cannot be settled through Chief Engineer (Infrastructure Plan) within 180 days of such disputes, they shall be settled by arbitration. The arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act,1996 and any statutory modification thereof from time to time.

(c) The language of the arbitration shall be English and the place of arbitration shall be Mumbai.

(d) Notwithstanding the existence of any dispute referred to arbitration, the parties shall continue to perform their obligations under this Agreement.”

3. Learned Senior Counsel appearing on behalf of the respondent states that an arbitration can take place only if disputes and differences between the parties cannot be settled through the Chief Engineer and it is only after 180 days of such disputes not being settled, that arbitration can be invoked.

4. We find that by a letter dated 08.06.2016, the petitioner wrote to the Chief Engineer under the Clause asking that this was by way of a final attempt to achieve amicable settlement of the disputes set out in the letter. It appears that in response to the said letter, the Chief Engineer, by a letter dated 17.06.2016 called a meeting, which was held on 22.06.2016, after which nothing had taken place. Inasmuch as nothing has happened thereafter, and more than 180 days have gone since June,2016, according to us, an Arbitrator needs to be appointed to resolve the disputes between the parties. We appoint Hon'ble Mr.Justice F.I.Rebello, retired Judge of the Bombay High Court as Sole Arbitrator to resolve the disputes between the parties.

5. Accordingly, the Arbitration Petitions are disposed of.”

3. The arbitral tribunal could not conclude the arbitral proceedings within the time limits prescribed under Section 29A of the Act. It appears that the petitioner had earlier approached this Court by filing Commercial Arbitration Petition (L) No.30 of 2019 seeking extension of the mandate of the arbitral tribunal for six months. A learned Single Judge of this Court by an order dated 14 January 2019 was pleased to extend the mandate of the arbitral tribunal by six months as prayed in the said application. The said order passed by this Court (B.P.Colabawalla, J.) reads thus:

“This Arbitration Petition has been filed under Section 29A of the Arbit