Arbitrators must consider recall applications under Section 25(a) of the Arbitration Act when sufficient cause is shown, especially in the absence of alternate remedies for appeal.

JUDGMENT (Oral)

1. These petitions assail identical orders dated 19th February, 2021, passed by the learned sole arbitrator, arbitrating on the dispute between the petitioner and the respondent, in respect of identical contracts bearing different numbers.

2. Despite notice, the respondent has not appeared today.

3. It is seen that there was no appearance on behalf of the respondent on the last date of hearing either.

4. I have heard Mr Rakesh Kumar, learned Counsel for the petitioner-Union of India and applied myself to the facts and the law that applies.

5. The learned sole arbitrator has, exercising her jurisdiction under Section 25(a)¹ of the Arbitration and Conciliation Act, 1996 (the 1996 Act), terminated the arbitral proceedings before her on the ground of default, on the part of the petitioner, in filing statements of claim, allegedly despite repeated opportunities having been granted for the said purpose. The petitioner also filed applications before the learned sole arbitrator for recall of the aforesaid orders, but it appears that the learned arbitrator has not condescended to pass any order on the said applications.

6. It is in these circumstances that the petitioner has moved these petitions before this Court, praying that the orders dated 19th February, 2021, passed by the learned sole arbitrator, be quashed and set aside or, in the alternative, that the learned arbitrator be directed to pass an order on the applications filed by the petitioner in these cases seeking recall of the said orders.

7. On the last date of hearing, I had queried of Mr. Rakesh Kumar as to how, in view of the judgment of the Supreme Court in Bhaven Construction v. Executive Engineer, Sardar Sarovar Narmada Nigam Ltd., (2022)1 SCC 75, the present petitions would not lie under Article 227 of the Constitution of India.

8. Mr. Rakesh Kumar submits that the present case is distinguishable from Bhaven Construction, as the impugned orders were passed under Section 25(a) of the 1996 Act, against which there is no alternate remedy available to the petitioner. He submits that Bhaven Construction dealt with an order passed under Section 16(5) of the 1996 Act, against which the remedy under Section 34 is provided by Section 16(6) of the 1996 Act. Section 16 of the 1996 Act reads thus:

"16. Competence of arbitral tribunal to rule on its jurisdiction.--

(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,--

(a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and

(b) a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator.

(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.

(4) The arbitral tribunal may, in either of the cases referred to in sub-section (2) or sub-section (3), admit a later plea if it considers the delay