The main legal point established is that the jurisdiction and applicability of Section 29A of the Arbitration and Conciliation Act, 1996 should be considered in the context of the appointing authority and the non obstante clause of Section 42.

JUDGMENT

Debangsu Basak, J. - The petitioner has invoked the provisions of Section 29A of the Arbitration and Conciliation Act, 1996 for extension of time to conclude the reference by a period as may be deemed fit and appropriate by the Court.

2. Learned Advocate appearing for the petitioner has submitted that, the parties entered into an agreement dated April 7, 2015. Such agreement had an arbitration clause. Disputes and differences had arisen between the parties. The petitioner had invoked arbitration clause contained in such agreement by a notice dated February 3, 2018 for the resolution of the disputes and differences between the parties. The arbitration clause had allowed the petitioner to nominate its arbitrator. Arbitration clause had also permitted the respondent to nominate his arbitrator. Although the petitioner had invoked its arbitrator, the respondent failed to do so. Consequently, the petitioner approached this Hon'ble Court under Section 11 of the Act of 1996 being A.P. No. 239 of 2018 for constitution of the arbitral tribunal. By an order dated June 29, 2020, the Court had disposed of such application by constituting the arbitral tribunal. The arbitral tribunal had entered into reference on August 17, 2018 which fact the arbitral tribunal had recorded in the minutes of the meeting dated October 9, 2018.

3. Learned Advocate appearing for the petitioner has submitted that, the time to conclude the arbitral reference had lapsed on September 4, 2020. According to him, the petitioner is not at fault in the arbitral tribunal not succeeding to complete the reference within the initial time stipulated by the Act of 1996. He has submitted that, since the nominee of the petitioner was elevated as a Judge of this Hon'ble Court, the petitioner nominated its arbitrator. Constitution of the arbitral tribunal is complete. However, the arbitral tribunal is not in a position to conclude the reference in view of the expiry of the time period.

4. Learned Advocate for the petitioner has relied upon ( Cabra Instalaciones Y. Servicios v. Maharashtra State Electricity Distribution Company Limited,2019 SCCOnlineBom 1437) , ( Nilesh Ramanbhai Patel & Ors. v. Bhanubhai Ramanbhai Patel & Ors., (2019) 2 GLR 1537) and ( DDA v. Tara Chand Sumit Construction Co.,2020 2 ArbLR 505) (Delhi) in support of the contention that this Hon'ble Court has the jurisdiction to try, entertain and determine an application under Section 29A of the Act of 1996. He has submitted that,

5. Learned Advocate appearing for the petitioner has relied upon Section 29A of the Act of 1996 and submitted that, the exercise of jurisdiction by a Court named under Section 11 of the Act of 1996 is different. He has submitted that, Section 42 of the Act of 1996 is not attracted when a Court is exercising jurisdiction under Section 11 of the Act of 1996. By the same analogy, the definition of the Court as appearing in Section 2 (1)(e) of the Act of 1996 is not attracted while considering an application under Section 29A of the Act of 1996. He has referred to Sections 14 and 15 and in particular Section 15(2) of the Act of 1996. He has submitted that, the time to make and publish the award by the arbitral tribunal be suitably extended.

6. Learned Advocate appearing for the respondent has submitted that, the last sitting of the arbitral tribunal was held on February 2, 2020. There has been delay on the part of the petitioner in approaching this Hon'ble Court. He has submitted that, the present application has been filed sometime in December 2020 while the last sitting of the arbitral tribunal was on February 2, 2020. According to him, there has been unexplained delay on the part of the petitioner in approaching the Court.

7. Learned Advocate appearing for the respondent has contended that, there is an application in Section 9 of the Arbitration and Conciliation Act, 1996 pending before the Alipore Court. By virtue of Section 42 of the Act of 1996 therefore, such court has the jur