IMPORTANT POINT
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 grounds covered by Section 14, and the arbitration must resume without further delay.

JUDGMENT :

Moushumi Bhattacharya, J.

1. The petitioners in all the 4 matters have filed applications for extending the mandate of the learned Sole Arbitrator for concluding the reference and alternatively, for appointment of a substitute arbitrator for conclusion of the arbitral reference arising out of an arbitral agreement dated 1st August, 2018. Since all the 4 applications involve identical points of law, namely, termination of the arbitrator’s mandate and substitution of a new arbitrator, the Court proposes to dispose of the applications in the following manner.

2. The facts presented to the Court are that the petitioner invoked the arbitration clause in terms of an arbitration agreement contained in a Agreement to License dated 1st August, 2018. The respondent accepted the petitioner’s nomination of arbitrator but disputed the significance of the letter dated 9th May, 2020 by which the arbitral reference was commenced. The respondent questioned the jurisdiction of the learned arbitrator in an application filed under section 16 of The Arbitration and Conciliation Act, 1996. The petitioner on the other hand claimed license fees which remained due and payable by the respondent. The petitioner is the claimant in the arbitration.

3. The admitted facts are also that the Statement of Claim was filed on 15th September, 2020; the Statement of Defence on 5th December, 2020 and the Rejoinder was filed on 23rd November, 2021. The parties continued with their arguments till 29th August, 2023 and filed their respective notes of arguments on that date.

4. According to learned counsel appearing for the petitioner/claimant, the period of 12 months expired on 22nd November, 2022 after which the parties agreed to extend the time. The learned arbitrator however omitted to record the same. Learned counsel appearing for the respondent says that the 12 months came to an end on 4th December, 2021 and the respondent did not expressly agree to extend the time thereafter.

5. Whatever be the correct position in terms of dates, the fact remains that further extension of the arbitrator’s mandate would be required under section 29A(4) of the 1996 Act for the arbitral reference to continue. Admittedly, both parties overlooked the stipulated time frames under section 29A and proceeded in the arbitration till 24th July, 2023, which was the last date of hearing. The parties filed their notes of arguments on 29th August, 2023.

6. Counsel appearing for the petitioner submits that the arbitration is pending as on date and has not been terminated under section 32 of the Act and that the petitioner has a statutory right to seek appointment of a substitute arbitrator within 3 years under Article 137 of the Schedule to the Limitation Act, 1963. According to counsel, the petitioner does not have any other statutory option for seeking such relief after exhausting the time lines under section 29A of the 1996 Act.

7. Learned counsel appearing for the respondent takes a point of jurisdiction in that application under section 29A would have to be filed before a “Court” as defined in section 2(1)(e) of the Act. Counsel submits that the Calcutta High Court does not have territorial jurisdiction to entertain the present application. Counsel further submits that section 15 of the Act would not be applicable after expiry of the mandate of the arbitrator and hence the application under section 29A is not maintainable. Counsel urges that section 15 in any event cannot be applied after enactment of section 29A of the Act. According to counsel, the petitioner’s remedy lies in section 29A itself for substitution of the arbitrator. Counsel submits that section 15 of the Act will also not be applicable since the arbitrator has not withdrawn from office.

The statutory blockades before the petitioner/claimant under the 1996 Act

8. The petitioner seeks substitution of the existing arbitrator on the ground that after termination of mandate, the petitioner does not have any approach-routes to t