Delhi High Court - Orders
Engineering Projects (India) Limited vs K.K. Builders Private Limited on 1 April, 2024
Author: Prateek Jalan
Bench: Prateek Jalan
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (COMM) 336/2023
ENGINEERING PROJECTS (INDIA) LIMITED ..... Petitioner
Through: Mr. Sonal Kumar Singh, Mr.
Obhirup Ghosh, Mr. Anmol Adhrit
& Mr. Jitendra Tanwar, Advocates.
versus
K.K. BUILDERS PRIVATE LIMITED ..... Respondent
Through: Mr. M.A. Niyazi, Ms. Anamika
Ghai Niyazi, Ms. Kirti Bhardwaj,
Ms. Nehmat Sethi & Mr. Arquam
Ali, Advocates.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 01.04.2024
O.M.P. (COMM) 336/2023
1. The petitioner assails an arbitral award dated 29.03.2023 by which a learned sole arbitrator has adjudicated disputes between the parties under a work order dated 24.12.2003, as amended by a letter dated 19.01.2005.
2. The principal argument of Mr. Sonal Kumar Singh, learned counsel for the petitioner, is that the award has been rendered after the statutory mandate of the arbitral proceedings had already lapsed under Section 29A of the Arbitration and Conciliation Act, 1996 ["the Act"], without any extension having been granted, either by consent of the parties or by the Court.
3. The factual basis for this submission is that the arbitration O.M.P. (COMM) 336/2023 Page 1 of 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/04/2024 at 02:18:09 proceedings were originally commenced in the year 2011 and were initially conducted by officers of the petitioner. Those proceedings were terminated in the year 2018, and a former Judge of this Court was appointed as the arbitrator on 24.07.2018. He entered into the reference on 09.08.2018, by which time pleadings had already been completed. Even counting the period of mandate of the learned arbitrator as 18 months upon a conjoint reading of Sections 23(4) and 29A(1) of the Act, Mr. Singh submits that the mandate of the said arbitrator expired on 09.02.2020. The learned arbitrator unfortunately passed away in April, 2021 and another former Judge of this Court was appointed as the arbitrator by an order dated 22.12.2021, on an application under Sections 14 and 15 of the Act. The learned arbitrator so appointed entered upon reference on 10.01.2022 but made the impugned award on 29.03.2023, more than one year thereafter.
4. On these facts, Mr. Singh submits that the mandate of the learned arbitral tribunal had expired while the erstwhile arbitrator was in seisin of the proceedings on 09.02.2020 and in any event, without prejudice to the said contention, one year after the subsequent appointment i.e. on 10.01.2023.
5. Mr. Singh also contends that the award is vitiated by an undue delay of 11 months in making of the award after conclusion of the hearing.
6. The matter requires further consideration.
7. Issue notice. Mr. M.A. Niyazi, learned counsel for the respondent, accepts notice.
8. Mr. Niyazi submits that the present proceedings had commenced O.M.P. (COMM) 336/2023 Page 2 of 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/04/2024 at 02:18:09 well before insertion of Section 29A in the Act by an amendment of the year 2015. He therefore submits that Section 29A would have no application. Mr. Niyazi draws my attention to an order dated 09.08.2018, by which the tribunal recorded that the proceedings would be concluded within the time contemplated under the 2015 Amendment or such further extension as agreed by the parties or allowed by the Court. However, according to him, such consent is immaterial, as the effect of the Amendment Act upon the proceedings in question would not be dependent upon consent of the parties. He submits that Section 87 of the Act, which was inserted by a subsequent Amendment in 2019, would also not apply to the present arbitral proceedings and that, in any event, Section 87 of the Act has been struck down by the Supreme Court in Hindustan Construction Co. Ltd. v. Union of India, [2019 SCC OnLine SC 1520].
9. Learned counsel for the parties are requested to file written submissions, alongwith judgments in support thereof, within a period of 4 weeks from today.
10. List on 05.07.2024.
I.A. 16068/2023(Stay) Mr. Singh does not press for a stay of the award at this stage. The application is therefore disposed of as not pressed.
PRATEEK JALAN, J APRIL 1, 2024 'pv'/ O.M.P. (COMM) 336/2023 Page 3 of 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 03/04/2024 at 02:18:09