IMPORTANT POINT
The court's power to extend an arbitrator's mandate under Section 29-A is not limited by the timing of the application, allowing for extensions even after termination.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The sole issue which has fallen for consideration in the present case is brief, but having huge repercussions-whether the court can extend the mandate of an arbitrator after its termination if the application under Section 29-A of the Arbitration and Conciliation Act, 1996 is filed post-termination.

2. Learned Counsel for the respondents places reliance on a co-ordinate Bench Judgment of this Court in Rohan Builders (India) Pvt. Ltd. vs. Berger Paints India Limited, reported at (2023) SCC OnLine Cal 2645 for the proposition that if an application is filed for extension after termination of the mandate, such mandate cannot be extended under section 29-A.

3. Learned Counsel for the Petitioner opposes such contention and places reliance on an order dated November 6, 2023, passed by the Supreme Court in a Special Leave Petition, bearing SLP No.24489 of 2023, passed in a challenge against an order taking the same view as Rohan Builders (supra), in the matter of Vrindavan Advisory Services LLP vs. Deep Shambhulal Bhanushali, where the Supreme Court directed notices to be served, tagging the same with SLP (C) No. 23320 of 2023, preferred against Rohan Builders (supra), and granted stay of operation of the impugned judgment.

4. Learned Counsel for the Petitioner also cites another judgment of the same learned Single Judge who decided Rohan Builders (supra) where, according to the respondents, the learned Single Judge diluted such proposition and, in fact, extended the mandate even after termination.

5. Learned Counsel for the respondents also cites two judgments of learned Single Judges of the Delhi High Court and the Bombay High Court respectively in the matters of ATC Telecom Infrastructure Private Lmited vs. Bharat Sanchar Nigam Limited reported at (2023) SCC OnLine Del 7135 and Nikhil H. Malkan and Others vs. Standard Chartered Investment and Loans (India) reported at (2023) SCC OnLine Bom 2575. The Delhi and Bombay High Courts distinguished the ratio of Rohan Builders (supra)and held that even in cases where applications were made after the termination of mandate, the court retained the power to extend the mandate.

6. Since this court agrees in principle with the ratio laid down by the Delhi and Bombay High Courts in ATC (supra) and Nikhil H. Malkan (supra), the said decisions are not being discussed threadbare.

7. Thus, the broad issue which comes up for adjudication here is :

Whether the mandate of an arbitrator can be extended under Section 29-A of the 1996 Act if the application for extension is filed after the statutory timeline of expiry of mandate.

8. To decide the same, certain sub-issues arise, which are formulated and dealt with below.

9. The first such sub-issue is :

(a) Whether the Rohan Builders (supra) ratio operates as a binding precedent on this Court

10. While deciding such issue, it has to be kept in mind that the proposition laid down in Rohan Builders (supra), has now been stayed by the Supreme Court. Although mere stay of operation does not efface the said decision or the ratio laid down therein but merely puts the same in hibernation, fact remains that as of today, the said ratio cannot be said to be operative, thus leaving it open for this court to decide the issues independently.

11. It is also to be seen that the Delhi and Bombay High Courts have held contrary views to Rohan Builders(supra). Although the said judgments, being of other High Courts, have persuasive value only, such views cannot be over looked while arriving at a final decision all the same.

12. Although Rohan Builders (supra) would otherwise be binding on this Court unless the same is referred to a larger Bench, there are two aspects which are needed to be considered.

13. First, the operation of the stay of the ratio by the Supreme Court has taken out the sting from the same as a binding precedent, at least for the present. Secondly, the same learned Single Judge who decided Rohan Builders (supra) has rather dilut