Arbitral tribunal is not a body performing public duty or discharging a public or statutory duty and hence a writ petition is not maintainable against it.

1. Challenge in this writ petition is to an order dated April 27, 2012 passed by the sole arbitrator (the first respondent) terminating the arbitral proceedings between the first petitioner and the second respondent (on the ground that the former had not filed its statement of claim within time) as well as order dated May 3, 2012 declining the request of the petitioners to extend the time for filing the statement of claim. A writ of certiorari has been prayed for to quash the impugned orders.

2. The order dated April 27, 2012 reveals that the first respondent by his letter dated February 29, 2012 had informed the first petitioner to file its statement of claim by six weeks. It appeared to him to be surprising that even after lapse of eight weeks therefrom the first petitioner had neither filed the same nor intimated any reason for non-compliance of his direction. Accordingly, he construed it to be a default worthy of attraction of Section 25(a) of the Arbitration and Conciliation Act, 1996 (hereafter the Act) and terminated the arbitral proceedings thereby.

3. The first petitioner responded by issuing a letter dated April 30, 2012. It was alleged therein that the works entrusted to it by the second respondent had been completed four years back and that since the old documents pertaining thereto were lying in various offices, some time was consumed to trace the same. However, the first petitioner was in a position to submit its statement of claim within three weeks and, accordingly, prayed for an extension till May 21, 2012.

4. By the order dated May 3, 2012, the first respondent recorded that the mandate of the arbitrator had terminated and, therefore, he had no authority to consider the prayer of the first petitioner for extension.

5. Mr. Banerjee, learned advocate for the first respondent, raised a preliminary objection to the maintainability of the writ petition. According to him, the first respondent was appointed as arbitrator in terms of the agreement between the parties and since he was under no obligation to perform any public duty, a writ would not lie against him. In support of his submission, Mr. Banerjee placed reliance on the decision of the Supreme Court reported in (2003) 4 SCC 225 (G. Bassi Reddy v. International Crops Research Institute and anr.). He also placed reliance on the decision of the Supreme Court reported in AIR 2004 SC 1344 : M.D. Army Welfare Housing Organisation v. Sumangal Services Pvt. Ltd., and prayed for dismissal of the writ petition.

6. Mr. Menon, learned advocate appearing for the petitioners contended that the point regarding entertainability of a writ petition challenging an order of an arbitrator terminating arbitral proceedings under Section 25(a) of the Act or an order recalling/refusing to recall an order made thereunder is no longer res integra. Several decisions of different High Courts were relied on in support of such contention.

7. First, he referred to the decision of a learned single judge of the Bombay High Court reported in AIR 1999 Bombay 219 : M/s. Anuptech Equipments Private Ltd. v. M/s. Ganpati Co-operative Housing Society Ltd., Mumbai and ors. It was contended by him that the learned judge upon thread bare consideration of the provisions of the Act was of the opinion that an order terminating arbitral proceedings for default of the claimant to file claim statement under Section 25(a) of the Act would amount to termination of proceedings by an order; that the expressions ‘award’ and ‘order’ are distinct and different; that a civil suit cannot be instituted against an order terminating arbitral proceedings; that the Act does not provide any other remedy to the aggrieved claimant against an order terminating arbitral proceedings; and that the arbitral tribunal is comprehended within the meaning of ‘person’ in Article 226 of the Constitution to whom a writ would go; and hence, the orders impugned were set aside on the principle that no man should be left without a r