IN THE HIGH COURT OF JUDICATURE AT PATNA
P. B. BAJANTHRI and ARUN KUMAR JHA, JJ.
CWJC Nos. 20350 of 2021; 13762 of 2018 with Request Case Nos. 147 of 2018; 5 of 2022 with Misc. App.
No. 635, 638 of 2021
(26.4.2023)
South Bihar Power Distribution
Company Ltd. & Ors.
(in 20350, 147, 635, 638)
SPML Infra Ltd. (in 13762)
Bhagalpur Electricity Distribution
Company Pvt. Ltd.
& Ors. (in 5) ... Appellants
vs.
Bhagalpur Electricity Distribution
Company Pvt. Ltd.
(in 20350, 635, 638)
SPML Infra Ltd. & Anr. (in 147)
South Bihar Power Distribution
Company Ltd. & Ors.
(in 13762, 5) ... Respondents
Arbitration and Conciliation Act, 1996 – Sections 2(e), 11 (4) (5) (6) and 29 A (4) and (6) – Extension of time – the court which could grant extension of time could only be the court which has the power to appoint the Arbitrators and not the Principal Civil Court which is the court for other purposes under the Act – otherwise, the conflict between the power of the superior courts to appoint Arbitrators under Section 11 of the Act and powers of the Principal Civil Court to substitute such Arbitrators under Section 29 A (6) of the Act could not be reconciled – so, the learned District Judge erred while granting the extension of time to the learned Arbitral Tribunal – in the present case, however, as the Arbitrators were not appointed by the High Court and were appointed by the parties themselves during pendency of Request case No. 06/2016 filed on behalf of BEDCPL for appointment of Arbitrator on behalf of SBPDCL, there ought not to be any issue for their extension or for that matter substitution under Section 29 (4) (6) of the Act – but, that case, the proceedings on this assumption that the Principal Civil Court got jurisdiction as the Arbitrators were appointed by the parties themselves would again give rise to conflicting situation – so, the extension of term of arbitral tribunal by the learned District Judge was without any authority of law or jurisdiction and the same came to an end after its first extension on consent of the parties – CWJC No. 20350/2021, M.A. No. – 635/2021, M.A. No 638/2021 allowed and rest cases disposed of. (Paras 91 & 92)
AIR 1959 SC 24 (Para 11), AIR 1962 SC 538 (Para 11 to 18), (2011) 12 SCC 695 (para 30 and 31), AIR 1982 Cal 368 (Para 10 to 14), (2011) 1 SCC 320, (2020) 17 SCC 383, (2000) 8 SCC 151, (2006)2 SCC 638, (2005) 8 SCC 618, (2021) 2 SCC 1, 2016 SCC Online Guj 7809 (Para 40 & 41), 2019 (1) PLJR SC 276 (Para 4, 13, 18, 21), (2014) 11 SCC 560 (Para 1, 16, 24, 27, 31, 33 & 34), 2015 SCC Online P & H 105 (Para 1, 8, 9, 10 & 14), (2020) 15 SCC 706 (Para 12, 13, 22, 25), (2009) 2 SCC 337 (Para 39) (2019)2 SCC 488 (Para 1, 4, 14, 18, 19, 20 & 21), (1994) 2 SCC 440 (Para 23, 24, 25, 26, 28, 29, 30, 101, 102), (1995) 4 SCC 182, Para 9 , 10, 11 & 15), MANU / SC OR / 95271/2022, (2016) 3 SCC 619, (2020) 17 SCC 383, (2016) 10 SCC 813, (2020) 12 SCC 767, (2013) 1SCC 641, Misc. Civil Application (OJ) No. 1 of 2018 (para 15), 2019 SCC Online Bom 1437 (Para 7), AIR Online 2022 All 15 (Para 34 to 36) – Referred.
Arun Kumar Jha, J.—In these bunch of cases, the issues are common and interrelated, as such, all have been heard together and are being disposed of by this common judgment. The reliefs sought by the petitioners are as under :
2. In CWJC No. 20350 of 2021 (South Bihar Power Distribution Company Limited vs. Bhagalpur Electricity Company Private Limited)
This petition has been filed by the South Bihar Power Distribution Company Limited (SBPDCL) under Article 227 of the Constitution of India. In the instant petition, petitioner has prayed for the following reliefs:—
"(I) To quash and cancel the Judgment/order dated 25.09.2021 passed by Sri Sunit Datta Mishra in Arbitration case no. 1 of 2017 the learned District Judge being the Principal Civil Court within the meaning of Section 2(e) of Arbitration and Conciliation Act, 1996 and a Commercial Court notified in accordance with Section 3 of the Commercial Court, Commercial Division and Commercial Appellate Division of High Courts Act, 2015;
(II) To issue other interim and final order or orders, direction or directions, writ or writs as this Hon'ble Court may deem fit proper in the facts and circumstances of this case;"
3. Request Case No. 147 of 2018 (South Bihar Power Distribution Co. Ltd, through its Chief Engineer (Commercial) vs. SPML Infra Ltd. and Anr.)
This petition has been filed by the South Bihar Power Distribution Co. Ltd. under Section 11(5) & (6) of the Arbitration and Conciliation Act, 1996. In the instant petition, petitioner has prayed for the following reliefs:—
"For appointment of an Arbitrator on behalf of the Respondent No. 1 before this Hon'ble Court in accordance with the 'Arbitration Agreement' as contained in Clause 17.2.5 and 17.2.6 of the 'Distribution Franchisee Agreement' dated 19th July, 2013 between the petitioner and the Respondent No. 1, whereas the proforma Respondent No. 2 being the Agent 'Special Purpose Vehicle' appointed by the Respondent No. 1 is a confirming party and/or an Agent or Respondent No. 1 to the said agreement."
4. CWJC No. 13762 of 2018 (SPML Infra Limited vs. South Bihar Power Distribution Company Ltd. and Anr)
This petition has been filed by the SPML Infra Limited under Article 226 of the Constitution of India. In the instant petition, petitioner has prayed for the following reliefs:—
"(i) To issue a writ/order/direction for quashing the notice under Section 21 of the Arbitration and Conciliation Act, 1996 issued vide letter no. SBC366/2015/388 dated 11.06.2018 by the respondent South Bihar Power Distribution Company Limited through Chief Engineer (Commercial) by which dispute has been raised against the petitioner and seeking for resolving the same by way of arbitration. (Annexure- 7).
(ii) To hold and declare that the notice under Section 21 of the Arbitration and Conciliation Act, 1996 issued vide letter no. SBC- 366/2015/ 388 dated 11.06.2018 by the respondent South Bihar Power Distribution Company Limited through Chief Engineer (Commercial) is wholly without jurisdiction as there is no arbitration clause with the petitioner in terms of the Distribution Franchise Agreement dated 19.07.2013 and also for the same an arbitration was already going on for the same dispute with M/s Bhagalpur Electricity Distribution Company Private Limited wherein Arbitration Case No. 106 of 2016 and hence they cannot be second arbitration in relation to the same dispute arising out of the same agreement.
(iii) To any other relief or reliefs for which the petitioner is found to be entitled in the facts and circumstances of the case.
5. M.A. No. 635 of 2021 (South Bihar Power Distribution Company Limited vs. Bhagalpur Electricity Distribution Private Limited)
This Misc. Appeal has been filed by the South Bihar Power Distribution Co. Ltd. under Section 37 of the Arbitration and Conciliation Act, 1996. In the instant appeal, the appellant has prayed for the following reliefs:—
"For quashing the judgment/ order dated 25.09.2021 passed by the District Judge Patna being
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Radha Sundar Dutta vs. Mohd Jahadur Rahim
Radha Krishna Sivadutta Rai vs. Tayebali Dawoodbhai
National Textile Corporation Ltd. vs. Nareshkumar Badrikumar Jagad
Union of India vs. Chinoy Chablani & Co. AIR 1982 Cal 365 (Para 10 to 14)
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Antrix Corporation Ltd. vs. Devas Multimedia Pvt. Ltd., (2014) 11 SCC 560 (Para 1, 16, 24, 27, 31
Deep Industries Ltd. vs. Oil and Natural Gas Corporation Ltd., (2020) 15 SCC 706 (Para 12, 13, 22
Bharat Sanchar Nigam Ltd. vs. Motorola India Pvt. Ltd.
Commissioner of Income Tax vs. Ajanta Electricals, Punjab, (1995) 4 SCC 182 (para 9, 10
Jayesh H. Pandaya vs. Subhtex India Ltd.
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The main legal point established in the judgment is that the petitioner's recourse for appointment of a substitute arbitrator lies through Section 15 of The Arbitration and Conciliation Act, 1996, on....
The main legal point established in the judgment is that the term 'Court' in Section 29-A of the Arbitration and Conciliation Act, 1996 should be interpreted in the context of the power to appoint an....
The High Court has exclusive authority to extend the mandate of an arbitrator appointed under Section 11 of the Arbitration & Conciliation Act, 1996, regardless of the pecuniary value of the claim.
Refusal to extend arbitrator's mandate under Section 29A due to claimant's fault and abandonment terminates arbitral proceedings, barring fresh appointment under Section 11 by defaulting party.
The main legal point established in the judgment is that the application for extension of time under Section 29A(4) of the Arbitration Act is to be heard by the Court having jurisdiction to hear Arbi....
The main legal point established in the judgment is that the District Court had jurisdiction to substitute the Arbitrator under Section 29-A of the Arbitration and Conciliation Act, 1996 in the absen....
The High Court has jurisdiction to extend time for arbitration proceedings, provided the arbitrator was appointed by it, reflecting legislative intent requiring contextual interpretation of 'Court' i....
The court affirmed that when arbitration fails to occur within statutory timelines, the court has the authority to substitute the arbitrator under Section 29A of the Arbitration and Conciliation Act,....
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