JUDGMENT (ORAL)

19.09.2024

1. This is a petition filed under Section 29A(4) and (6), (4) If the award is not made within the period specified in sub-section (1) or the extended period specified under sub-section (3), the mandate of the arbitrator(s) shall terminate unless the court has, either prior to or after the expiry of the period so specified, extended the period: 

Provided that while extending the period under this sub-section, if the court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five per cent for each month of such delay:

Provided further that where an application under sub-section (5) is pending, the mandate of the arbitrator shall continue till the disposal of the said application:

Provided also that the arbitrator shall be given an opportunity of being heard before the fees is reduced.

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(6) While extending the period referred to in sub-section (4), it shall be open to the court to substitute one or all of the arbitrators and if one or all of the arbitrators are substituted, the arbitral proceedings shall continue from the stage already reached and on the basis of the evidence and material already on record, and the arbitrator(s) appointed under this section shall be deemed to have received the said evidence and material. of the Arbitration and Conciliation Act, 1996, “the1996Act”,hereinafter, seeking extension of the mandate of the learned Arbitrator, in seisin of the disputes between the parties. Additionally, the petitioner seeks substitution of the learned Arbitrator and relies, for the said purpose, on Section 29A(6) of the 1996 Act.

2. I have heard Ms. Suruchi Mittal, the learned Counsel for the petitioner and Mr. Nikhilesh Kirishnan, learned Counsel for the respondent at some length.

3. Mr. Nikhilesh Krishnan submits that, while he has no objection to the extension of the mandate of the learned Arbitrator, he seriously opposes the prayer for substitution. He submits that no justifiable basis for substitution of the Arbitrator exists in the present case.

4. Ms. Suruchi Mittal has placed reliance on Section 29A(6) of the 1996 Act. She submits that the Court has absolute power, under the said provision, to substitute the Arbitrator, while extending his mandate. Inasmuch as no guidelines or criteria are contained in Section 29A(6), Ms. Suruchi Mittal’s contention is that the Court can act ex debito justiciae, and, on any reasonable ground being made out, substitute theArbitrator.

5. I have my reservations on whether Section 29A(6) is as open ended as Ms. Suruchi Mittal would urge it to be. To my understanding, Section 29A(6) has to be read in context, as one of the sub-sections in Section 29A. Section 29A is a provision which deals with extension of the mandate of the Arbitral Tribunal. Sub-section (6), when read in context, would indicate that the substitution of one or more of the Arbitrators is to be undertaken, under the said sub-section, only where the court is of the view that the proceedings are being unduly delayed by the Arbitrator who is presently in seisin of the proceedings. The obvious intent is to ensure that the exercise of discretion by the Court while extending the mandate of the Arbitral Tribunal is not frustrated by an arbitrator who is unduly delaying the proceedings for no justifiable reason.

6. Ms. Suruchi Mittal sought to contend that she is seeking substitution of the learnedArbitrator on the ground of bias.

7. It is well-settled that bias is a question of fact and has to be specifically pleaded and proved by cogent evidence., South India Cashew Factories Workers’ Union v Kerala State Cashew Development Corpn, (2006) 5 SCC 201. A Division Bench of this Court has held, in Red Roses Public School v Reshmawati, 2019 SCC OnLine Del1 0937, thus, on bias:

“17. It is well settled in law that personal bias has to be specifically pleaded, and specific allegations have to be mad