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2020 Supreme(Guj) 929
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIKRAM NATH, J.B. PARDIWALA, JJ.
Narmada Clean-Tech and Others – Appellants
Versus
Indian Council of Arbitration and Others – Respondents
Letters Patent Appeal No. 308 of 2020, Special Civil Application No. 18097 of 2017, Civil Application (for Stay) No. 1 of 2020
Decided On : 19-08-2020
Advocate Appeared:
For the Appellants : Mr. Kamal Trivedi, Mr. Abhishek M. Mehta.
For the Respondents: Mr. Paras Sukhwani, Mr. Chirag K. Sukhwani.
Point of Law: Tender – Arbitration Proceedings – Challenged - Arbitral Tribunal is to be proceeded in accordance with ICA Rules. Rule 38 and Rule 63 of ICA Rules have been reproduced and duly discussed in earlier part of this judgment. These provisions provide in no uncertain terms that date of entering reference would be date of completion of pleadings.
Headnote:
Constitution of India,1950 - Articles 226 and/or 227 - Arbitration and Conciliation Act, 1996 - Sections 12 read with13, 14, 29A and 15 - Letter patent appeal - Clause 15 - Bid for executing works contract pertaining to laying of HDPE and GRP - Pipeline for 3 phases including construction of manholes, pipe culverts, canal and road crushing - Augmentation of effluent disposal system - Contract Agreement - Appeal under Clause 15 of the Letters Patent Act has been preferred by original writ petitioners-Narmada Clean-Tech, a company registered under the provisions of the Companies Act, 1956 - Appellant company had appointed the respondent No. 3 as its Contractor after following due tender process and had accepted its bid for executing works contract pertaining to laying of HDPE and GRP pipeline for 3 phases including construction of manholes, pipe culverts, canal and road crushing etc. as part of augmentation of effluent disposal system at Ankleshvar, GIDC Estate - Pursuant to the said acceptance, a Contract Agreement was executed between parties. As per the terms of the agreement, there was a provision for arbitration which could be referred to as per rules of the Indian Council of Arbitration –
Finding of the Court:
, Arbitral Tribunal to deliver the award. If this period is excluded, the period on which the pleadings were complete period of 2 years would not have expired and then there is a further relaxation of an additional 1 year - Registrar, ICA did not communicate any decision of the Chairman, Arbitration Committee on the request made by the Arbitral Tribunal said letter, Arbitral Tribunal had requested for declared as the date of entering reference - High Court which were granted on the petitions and Civil Applications filed by appellant, no benefits can be extended to the appellant said period during which there was an interim order operating passed by this Court, cannot be counted as a part of period provided under ICA Rules - Arbitral Tribunal still has sufficient time to proceed with matter and deliver award within time as prescribed under the ICA Rules - Judgments deal with ICA Rules - Admittedly in present case, Arbitral Tribunal is to be proceeded in accordance with ICA Rules. Rule 38 and Rule 63 of the ICA Rules have been reproduced and duly discussed in the earlier part of this judgment – Court do not find any error in order passed by Tribunal which was impugned before learned Single Judge and now before us –
Result: Civil Application also stands disposed of
JUDGMENT :
VIKRAM NATH, J.
1. This appeal under Clause 15 of the Letters Patent Act has been preferred by the original writ petitioners-Narmada Clean-Tech, a company registered under the provisions of the Companies Act, 1956, assailing the correctness of the judgment and order dated 18.05.2020 passed by the learned Single Judge in Special Civil Application No. 18097 of 2017-Narmada Clean-Tech vs. Indian Council of Arbitration and two others, whereby the learned Single Judge dismissed the writ petition holding it to be not maintainable only on the ground that the order passed during the course of arbitration proceedings cannot be challenged under Articles 226 and/or 227 of the Constitution of India.
2. Earlier vide judgment and order dated 30.07.2020, the Division Bench had held that the writ petition would be maintainable against the order impugned passed by the Arbitral Tribunal. At that stage, we could have remitted the matter to the learned Single Judge for its decision on merits, but instead it was provided that the matter may be argued on merits and the Division Bench itself will examine the same. Learned counsel for the parties had not raised any objection to the Division Bench hearing the matter on merits.
3. Accordingly, we heard Shri Kamal Trivedi, learned Senior Advocate assisted by Shri Abhishek Mehta, learned counsel for the appellants and Shri Chirag K. Sukhwani, learned counsel for the respondent No. 3, the claimant before the Tribunal, the contesting party and have perused the material on record.
4. The appellant company had appointed the respondent No. 3 as its Contractor after following the due tender process and had accepted its bid for executing works contract pertaining to laying of HDPE and GRP pipeline for 3 phases including construction of manholes, pipe culverts, canal and road crushing etc. as part of augmentation of effluent disposal system at Ankleshvar, GIDC Estate. Pursuant to the said acceptance, a Contract Agreement was executed on 20.08.2008 between the parties. As per the terms of the agreement, there was a provision for arbitration which could be referred to as per rules of the Indian Council of Arbitration (respondent No. 1). There was an earlier litigation also with which we are not concerned, however, while mentioning the chronology of events at a later stage, reference to the said petition would also be made.
5. The Indian Council of Arbitration (“ICA” for short) vide letter dated 23.12.2013 notified the Constitution of the Arbitral Tribunal by appointing the respondent No. 2 as the Arbitral Tribunal. The first meeting of the Tribunal was scheduled for 30.01.2014. While notifying the Arbitral Tribunal, the ICA forwarded only a Statement of Claim submitted by the respondent No. 3-claimant along with supporting documents.
6. The present appellants who were the respondents before the Arbitral Tribunal intimated the Tribunal vide their communication dated 31.12.2013 that they are not willing to conduct the matter before the Arbitrator appointed by the ICA. On 30.01.2014, the first and preliminary meeting of the Arbitral Tribunal was held which the appellants did not attend. A next meeting of the Arbitral Tribunal which was fixed for 25.02.2014 was again not attended by the appellants. On the said date, the Arbitral Tribunal issued final notice to the appellants to attend the next meeting failing which the Tribunal would proceed with the reference.
7. In the meantime, the appellants approached this Court vide Special Civil Application No. 3072 of 2014, challenging the appointment of the Arbitrator on certain grounds. This Court passed interim order dated 25.02.2014 staying the Arbitral proceedings. The said petition remained pending till 10.07.2015 which was dismissed by this Court and the interim order was discharged.
8. Thereafter, the third meeting of the Arbitral Tribunal was fixed for 06.08.2
