THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 16.12.2019 ANNEXURE-G PASSED BY THE RESPONDENT NO.2 IN A.C.NO.126/2017 ETC.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

ORAL ORDER

This petition raises a question with regard to the applicability, or otherwise, of Section 29A of the Arbitration and Conciliation Act, 1996 ('Act 1996' for short) to the facts of the case, though admittedly, the arbitration proceedings in the instant case were initiated prior to the Arbitration and Conciliation (Amendment) Act, 2015 ('Act 2015' for short) coming into force.

2. Brief facts of the case are;

(a) that the petitioners and the respondent No.1 herein had entered into a Joint Development Agreement dated 30.08.2011. Dispute arose between the petitioners and respondent No.1 herein. Since the said Joint Development Agreement contains a clause for resolution of dispute through arbitration and conciliation, respondent No. 1 issued notice dated 04.05.2013 as contemplated under Section 21 of the Act, 1996 invoking the said arbitration clause. The petitioners herein issued a reply on 15.05.2013. A petition under Section 11 of the Act, 1996 was filed in Civil Miscellaneous Petition No. 45/2014 seeking appointment of an arbitrator, which was disposed of by order dated 26.07.2017 appointing a sole arbitrator to resolve the dispute between the parties at Bangalore Arbitration Centre as per the Arbitration Centre, Karnataka (Domestic and International) Rules, 2012 (Rules 2012).

(b) Claim statement is stated to have been filed by the respondent No.1 herein on 12.10.2017. Petitioners herein, who are the respondents in the arbitration proceedings, had filed their statement of objections on 06.02.2018 along with a counter-claim. Objection to the counter-claim came to be filed by the respondent No. 1 herein on 01.03.2018.

(c) In the meantime, in view of the amendment to the the Act, 1996 by Act 2015 restricting the duration of arbitration proceedings, the parties filed a joint memo dated 01.08.2018 mutually agreeing to an extension of time for adjudication of the dispute for a period of six months. This was accepted, and the time was accordingly extended. Thereafter, the time has been further extended on two occasions by the Board of Governors of Bangalore Arbitration Centre as per Rules 2012.

(d) Things stood thus, a memo dated 16.12.2019 came to be filed by the petitioners herein, stating that in terms of Section 29A of the Act, 1996, the mandate of the arbitrator had stood terminated. On the said memo, the arbitrator passed the impugned order holding that the provisions of Section 29A of the Act, 1996 as amended by the Act, 2015 were not applicable to the case at hand. Therefore, the extension of time granted by the Board of Governors in accordance with the Rules 2012 was adopted and directed the parties to proceed with the matter and to conclude the same before 21.12.2019, the date which would otherwise have expired in view of the extension granted by the Board of Governors. It is this order which is put in question.

3. Learned counsel for the petitioners, taking this Court extensively through the records submitted;

(a) that though the arbitration proceedings were initiated under the Act, 1996 prior to the Act, 2015 and by virtue of filing a joint memo dated 01.08.2018, the parties have consciously agreed and submitted themselves to be governed under the amended provisions, namely Section 29A of the Act, 2015;

(b) He refers to Section 26 of the Act, 2015, providing for an option for the parties to agree otherwise.

(c) He also pointed out that by the subsequent Amendment Act 33 of 2019, though the said provision was deleted, by virtue of the pronouncement of law by the Apex Court in the case of Hindustan Construction Company Limited and another V/s Union of India and others, reported in (2020) 17 SC