IMPORTANT POINT
Inherent power under Section 151 of CPC cannot be exercised when specific provision exists – Mere non-mentioning of an incorrect provision is not fatal to application if power to pass such order is available with court.

JUDGMENT

OMP No. 1197 of 2024

The applicant/petitioner has filed an application under Section 151 of CPC for extension of time to comply with the order dated 30.10.2023 passed in arbitration case No. 799 of 2023. It has been asserted that the applicant/petitioner filed a petition before the Court seeking an extension of time to enable the arbitrator to conclude the arbitration proceedings in reference No. 1376 of 2017. This petition was disposed of by this Court on 30.10.2023 by allowing the extension of time enabling the learned arbitrator to conclude the proceedings within six months. The parties were directed to remain present before the learned Arbitrator on 31.10.2023. Learned counsel representing the petitioner intimated this fact to the learned counsel appearing before the learned Arbitrator. He asked the learned counsel to download the copy of the order but he failed to do so. Learned Arbitrator could not take up the matter in the absence of the order extending the time and the time granted by this Court stood expired. Hence, the application for an extension of time.

2. No reply was filed.

3. I have heard Mr. Rohan Thakur, Advocate vice Mr. Maan Singh, learned counsel for the petitioner, Mr. Lokender Kutlehria, learned Additional Advocate General for respondents No.1 & 3/state and Ms. Shreya Chauhan, learned counsel for respondent No.2/NHAI.

4. Mr. Rohan Thakur, learned vice counsel for the petitioner submits that the order was conveyed to the learned counsel representing the petitioner before the learned Arbitrator, however, he failed to download the order and appear before the learned Arbitrator. Since the order was not conveyed to the learned Arbitrator, he could not proceed further in the matter. The other cases have already been decided; therefore, he prayed that the present application be allowed and the time be extended.

5. Ms. Shreya Chauhan, learned counsel for respondent No.2/NHAI submitted that the present application under Section 151 CPC is not maintainable as a specific provision exists under Section 29 (A) (4) of the Arbitration and Conciliation Act. The petitioners were negligent in not appearing before the learned Arbitrator and there is no sufficient cause for extending the period. NHAI would be forced to deposit the interest for an extended period. Therefore, she prayed that the present application be dismissed.

6. Mr. Lokender Kutlheria, learned Additional Advocate General for the respondents No.1 and 3/State adopted the submissions of Ms. Shreya Chauhan and prayed that the present application be dismissed.

7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

8. It is true that there is a specific provision under Section 29A (4) of the Arbitration and Conciliation Act for extending the period for completing the arbitration proceedings. It was laid down by the Hon’ble Supreme Court in My Palace Mutually Aided Coop. Society v. B. Mahesh, 2022 SCC OnLine SC 1063 that the inherent power under section 151 of CPC cannot be exercised when a specific provision exists. It was observed:

“28. Section 151 of the CPC can only be applicable if there is no alternate remedy available in accordance with the existing provisions of law. Such inherent power cannot override statutory prohibitions or create remedies which are not contemplated under the Code. Section 151 cannot be invoked as an alternative to filing fresh suits, appeals, revisions, or reviews. A party cannot find solace in Section 151 to allege and rectify historic wrongs and bypass procedural safeguards inbuilt in the CPC.”

9. Hence, the application under Section 151 CPC would not be maintainable when specific provision under Section 29 A (4) of the Arbitration and Conciliation Act exists to extend the time and the submission of Ms. Shreya Chauhan, learned counsel for respondent No.2/NHAI has to be accepted as correct that the application should have been filed under Section 29 A (4) of the