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IN THE HIGH COURT OF DELHI AT NEW DELHI
Prateek Jalan, J.
Wadia Techno-engineering Services Limited – Appellant
Versus
Director General of Married Accommodation Project & Anr. – Respondents
O.M.P.(MISC.)(COMM.) 123 of 2023
Decided On : 16-05-2023
Arbitration - Extension of Mandate - Arbitration and Conciliation Act 1996, Section 29A
Fact of the Case:
The petitioner filed petitions under Section 29A of the Arbitration and Conciliation Act 1996 seeking extension of the mandate of the arbitrator, whose mandate had expired. The respondent opposed the extension, citing lack of consent and delay in the conduct of arbitration proceedings.
Finding of the Court:
The court found that there was sufficient cause for the extension of the mandate of the arbitrator, as the proceedings had reached the stage of final arguments and the arbitrator had acted expeditiously. The court also imposed costs on the respondent for making legal and factual arguments beyond the scope of consideration.
Issues: Extension of mandate under Section 29A of the Act, consent of parties, delay in arbitration proceedings, imposition of costs
Ratio Decidendi: The court held that the requirement of consent of the parties for extension of mandate under Section 29A(3) does not apply to Section 29A(4) and (5). The court also emphasized that the power to extend the period specified in Section 29A(1) or the extended period under Section 29A(3) is available even after the expiry of the mandate of the arbitrator. The court further stated that the conduct of the arbitration proceedings and the respondent's grievances were beyond the scope of consideration in the present proceedings.
Final Decision: The petitions were allowed, and the mandate of the arbitrator was extended for six months. The court imposed costs on the respondent under Section 29A(8) of the Act, assessed at Rs.30,000/- in each petition, to be paid by the respondent to the petitioner.
JUDGMENT
Prateek Jalan, J. (Oral)
1. These three petitions under Section 29A of the Arbitration and Conciliation Act 1996 [hereinafter, "the Act"] have been filed for extension of the mandate of the learned arbitrator, who is adjudicating disputes between the parties under three contract agreements issued under separate letters of acceptance dated 22.05.2009. It is stated that the mandate of the learned arbitrator expired on 20.03.2023 and an extension is sought for a period of six months.
2. The arbitration proceedings commenced pursuant to a common order dated 23.08.2021 passed in ARB. P. 794-96/2020. Hon'ble Mr. Justice A.K. Pathak, former Judge of this Court, was appointed as the arbitrator. In the arbitration proceedings, the claim arising out of ARB. P. 794/2020 was categorized as "Arbitration case No. 1" [OMP(MISC)(COMM) 124/2023], ARB. P. 795/2020 as "Arbitration case No. 2" [OMP (MISC)(COMM) 125/2023] and ARB. P. 796/2020 as "Arbitration case No. 3" [OMP (MISC)(COMM) 123/2023]. To maintain consistency, nomenclature used by the learned arbitrator will be followed in this judgment.
3. The learned arbitrator scheduled a preliminary hearing on 27.09.2021, wherein he granted six weeks' time for filing of the Statement of Claim [hereinafter, "SOC"] and six weeks thereafter for filing of the Statement of Defence [hereinafter, "SOD"] and counter claims [hereinafter, "CC"]. Further time of four weeks was granted for filing rejoinder/reply to CC by the petitioner/claimant. Directions for payment of fees were also passed.
4. By a further order dated 03.02.2022, the learned arbitrator noted that SOC was filed on 08.11.2021 and that the SOD and CC had not been filed. Instead, the respondent filed an application for extension of time for filing of SOD and CC until 31.03.2022. The learned arbitrator extended time for filing SOD and CC by three weeks i.e. until 24.02.2022. An application under Section 16 of the Act was also filed by the respondent, which was kept pending.
5. The next hearing was held on 28.03.2022, when the learned arbitrator noted that SOC and CC have been filed in Case No. 2 on 25.02.2022, and that legible copies were supplied to counsel for the petitioner on 26.03.2022. It was also noted that in Case No. 1, SOD and CC were filed only on 25.03.2022 and no SOD and CC were filed in Case No. 3. The learned arbitrator took on record SOD and CC in Case No.1 subject to payment of costs of Rs. 20,000/-and granted time in Case No.3, again subject to payment of costs of Rs. 20,000/-.
6. In Case Nos. 1 and 3, the respondent thereafter sent an e-mail on 22.04.2022 requesting for waiver of costs imposed by the above order, which was declined by the learned arbitrator on the same date.
7. By order dated 13.05.2022 in Case Nos.1 and 3, the SOD and CC were struck off the record of the tribunal for want of payment of costs and arbitral fees by the respondent. In Case No. 2, only CC was struck off the record for non-payment of arbitral fees.
8. Evidence of the claimant [petitioner herein] thereafter commenced.
9. In the meanwhile, the learned arbitrator dismissed the respondent's application under Section 16 of the Act vide order dated 29.08.2022.
10. An oral application, in Case Nos. 1 and 3, for recall of order dated 13.05.2022 was rejected on 30.08.2022, following which, a written application for recall of orders dated 28.03.2022, 22.04.2022, 13.05.2022 and 30.08.2022 was filed in Case Nos. 1 and 31[In Case No. 2, an application was filed only for recall of orders dated 28.03.2022, 13.05.2022 and 29.08.2022.] . By an order dated 04.11.2022, the learned arbitrator declined to waive the costs, but granted a further period of four weeks for payment of costs, in which case the SOD would be considered in Case Nos. 1 and 3. In all three cases, the learned arbitrator also gave directions for payment of arbitral fees and granted six weeks for this purpose, in which case the CC would be considered. It was recorded that order dat
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