The main legal point established in the judgment is that the term 'Court' in Section 29A of the Arbitration and Conciliation Act, 1996 should be interpreted to mean the Court which has the power to appoint an Arbitrator under Section 11 of the Act.

JUDGMENT

Jyoti Singh, J. - O.M.P. (MISC.) (COMM) 236/2019

1. With the consent of the parties, arguments have been heard on the main petition also.

I.A. No.11418/2019

2. This is an application filed on behalf of the petitioner under Section 151 CPC seeking recall of order dated 31.07.2019.

3. Petitioner had filed the present petition under Section 29A of Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act") for extension of mandate of the learned Arbitrator. The Court had issued notice to the respondent. Respondent filed its reply and objected to the maintainability of the petition before this Court on the ground of lack of pecuniary jurisdiction as the value of claims was less than Rs. 2 Crores.

4. When the matter was listed on 31.07.2019, learned counsel for the petitioner submitted that the amount of claims and counter claims in the arbitration proceedings was below the pecuniary jurisdiction of this Court and, accordingly, sought leave to withdraw the petition, with liberty to file the same before the Court of competent jurisdiction. The petition was, accordingly, dismissed as withdrawn granting the liberty sought.

5. Present application seeks recall of the Order dated 31.07.2019.

6. The contention of learned counsel for the petitioner/applicant is that power to extend the mandate of an Arbitrator under sub-Section (4) of Section 29A of the Act, beyond the period of 12 months or further extended period in terms of sub-Section (3), rests with the Court. Tribunal can extend the mandate by 6 months beyond the initial 12 months, with the consent of the parties, but any further extension of mandate can only be by the Court. Court has vast power of extension of the period, even after such period is over and while doing so, Court can substitute one or all of the Arbitrators, as provided under Sections 29(6) and 29(7) of the Act. It is argued that reading the aforesaid provisions, the inescapable conclusion is that the term "Court" in Section 29A would be the High Court, in case of domestic arbitration, which has exclusive power to appoint an Arbitrator and not the District Court, as per Section 2(1)(e) of the Act.

7. It is further argued that the said interpretation finds force from the fact that it would be inconceivable that Legislature would vest the power in the Principal Civil Judge to substitute an Arbitrator, who may have been appointed by the Supreme Court or the High Court. Even otherwise, it would be wholly impermissible since powers of appointment of Arbitrators, when invoked, vest only in the Supreme Court or the High Court, as the case may be, in terms of sub-Sections (4), (5) and (6) of Section 11 of the Act and hence, the Civil Court cannot be given the power to extend the mandate of the Arbitrator, so appointed.

8. Learned counsel, in order to substantiate this argument, submits that the power of extending the mandate of an Arbitrator also includes power to substitute the Arbitrator. If in a given case and for valid reasons, the Court while extending the mandate of the Arbitrator finds that it is so necessary, it can substitute the Arbitrator in the same proceedings. Surely, this power is only with the Supreme Court or High Court given the nature of Arbitration, and in case it is to be held that the Civil Court can extend the mandate of the Arbitrator, then it would be required to be held that the Civil Court while extending the mandate, if so required, can also substitute the Arbitrator. This would be clearly in the teeth of the provisions of Section 11 of the Act. A Court which does not have the power to appoint an Arbitrator can certainly not have the power either to substitute the Arbitrator or even to extend the mandate of the Arbitrator under Section 29A of the Act, to say the least. Learned counsel submits that this conflict can be resolved by understanding the term "Court" for the purpose of Section 29A, as the Supreme Court/High Court exercising power under Section 11 of the Act and