The court emphasized the importance of timely and fair conduct in arbitration proceedings and limited the scope of interference under Section 34 of the Arbitration & Conciliation Act.

PRATHIBA M. SINGH, J.

1. This is a petition under Section 34 of Arbitration & Conciliation Act, 1996 challenging the award dated 28th February, 2014 passed by Justice Dr. M.K. Sharma (Retired) – Learned Sole Arbitrator who was appointed by this Court on 29th November, 2011.

2. Notice was issued in the petition on 4th August, 2014. Subsequently, the matter has been adjourned for arguments. Today, counsel for the Petitioners has submitted that he does not have any instructions from the Petitioners and he wishes to seek discharge in the matter. He has placed on record several emails which show that repeatedly instructions are being sought from the instructing counsels in Kolkata as also the client, but no replies were received. He further submits that he has now received instructions that, as per the certificate issued by the doctor, the Petitioners’ representative has hypertension for the last 3-4 months and it will need a further period of three months.

3. On the other hand, Counsel for the Respondent has placed on record e-mail dated 21st July, 2018 from M/s. Sinha & Company to the Petitioner’s counsel, which was inadvertently marked to him wherein the instructing counsel have informed the Petitioner to seek an adjournment as the Petitioner is in financial hardship. The contradiction between the email dated 21st July 2018 and the medical certificate is apparent. In the former, financial hardship is being given as the reason for seeking an adjournment and in the latter, for the same period, illness is being asserted. It is clear that the Petitioners are avoiding addressing arguments before this Court on one pretext or the other. All the e-mails are taken on record. Counsel for the Respondent objects to the adjournment as a substantial sum is to be recovered under the Award by NBCC. Thus, no cause is made out for adjourning the matter again.

3.1 The background facts are - NBCC had published an advertisement dated 3rd February, 2007 inviting offers from various parties for development of land on an outright sale/resource sharing basis. In response to the said advertisement, the Petitioners offered their land admeasuring 34.83 acres, located at Mouza Kulai, P.S. Panchala on N.H.6, Howrah District, West Bengal (hereinafter, land), for joint development. Accordingly, a 50-50% joint venture partnership firm was formed as per registered partnership agreement dated 9th October 2007. The name of the said J.V. firm, formed as a partnership firm, was NBCC-R.K. Millen. In lieu of transfer of Rs. 10 crores to the Petitioner company, the land was transferred to the newly formed firm, vide various sale deeds. Vide supplementary Memorandum of Understanding dated 28th November 2007, it was agreed that the Bank account of the Partnership firm would be operated by NBCC only. The relevant modification to Clause 7.1 reads as under:

“Provided however that till the CLU is obtained by RKM, the Bank account in the name of NBCC-R.K. Millen (Partnership Firm) shall be operated by NBCC only and the amount received on account of sale of 34.83 acres or part thereof can be withdrawn by NBCC and credited to its account to recover its due amount, without any restriction as aforesaid.”

As agreed, NBCC made a payment of Rs. 10 crores on 22nd November 2007, to the Petitioner company and the land was sold to the Partnership firm. NBCC incurred a substantial sum of expenses to the tune of Rs. 1,12,11,978/- as stamp duty on the registration of the sale.

4. Subsequently, on 7th February 2008, the land was acquired by the Government of West Bengal. The said acquisition came to be challenged in the Calcutta High Court and vide order dated 27th October, 2017, the Calcutta High Court upheld the said acquisition. Three writ petitions were filed by the Petitioner challenging the acquisition as also payment of compensation. In fact, in the writ petitions challenging the payment of compensation in the name of the J.V., various observations were made by the Calcutta High C