Delhi District Court
Lakshman Prasad Agarwal vs Pnb Housing Finance Limited on 18 October, 2022
In the Court of Shri Sanjiv Jain,
District Judge (Commercial Court-03), Patiala House Courts
New Delhi
OMP (T) No. 02/2021
1. Lakshman Prasad Agarwal
S/o Sh. Uma Shankar Agarwal
2. Neha Agarwal,
W/o Sh. Lakshman Prasad Agarwal,
Both R/o 10, Mayfair Road,
Ballygunge,
Kokata ... Petitioners
versus
PNB Housing Finance Limited,
9th Floor, Antrikesh Bhawan, 22,
Kasturba Gandhi Marg, New Delhi .....Respondent
Date of institution : 31.08.2021 Date of reserving judgment : 22.08.2022 Date of decision : 18.10.2022 JUDGME NT
1. Lakshman Prasad Agarwal & Ors, petitioners herein have filed this petition under Section 14,15 r/w Section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter called the "Act") making a prayer to terminate the mandate of the Arbitrator Sh. K. K. Nangia and appoint another Arbitrator to adjudicate the disputes arising out of the agreement between the OMP (T) 02/2021 Page No.1 of 21 parties including a preliminary issue as to the existence of an arbitration agreement in the said agreement.
2. Briefly stated, the facts are that the petitioners had taken loan of an amount of Rs. 93,28,349/- from the respondent vide loan agreement dated 29.11.2014. It was repayable in a period of 180 months. The loan amount carried an interest @ 12.75% per annum. The petitioners in consideration thereof executed various documents including promissory note, declaration etc and mortgaged their property at Country Home, Unit No. B-5, Rivera, PS Diamond Harbour, South 24, South 24 PGS, West Bengal-743368. They failed / avoided to adhere to the terms of the repayment of loan and committed defaults to pay the EMIs. The respondent then sent recall / foreclosure notice dated 30.07.2019 recalling the loan facility but despite that petitioners did not pay the outstanding amount. The loan agreement carried an arbitration clause i.e. Clause no. 10.9, as per which, in case of any dispute / difference in respect of the loan agreement, the matter shall be settled by arbitration to be referred to a sole arbitrator to be appointed by the respondent and the award thereupon shall be binding upon the parties to the agreement. The place of arbitration shall be at Delhi. Since, the dispute arose between the parties as to repayment of loan, the respondent referred the matter to Sole Arbitrator Sh. K. K. Nangia, who vide letter dated 04.09.2019 gave his consent and OMP (T) 02/2021 Page No.2 of 21 sent statutory disclosure in the prescribed format under VI Schedule as per Section 12 (1) of the Act. The respondent filed its statement of claims before the Arbitrator. The petitioners appeared before the Arbitrator and filed an application under Section 12 & 13 of the Act requesting the Arbitrator to withdraw himself from acting as an Arbitrator, which application was dismissed by the Arbitrator vide order dated 27.01.2020. The petitioner then filed an application under Section 16 of the Act, which was also dismissed by the Arbitrator vide order dated 09.03.2021.
3. It is alleged in the petition that there does not exist any arbitration clause between the parties. The petitioners had not received any notice under Section 21 of the Act, so very initiation / commencement of the arbitral proceedings / reference was bad in law. It was for the first time from the statement of claims, the petitioners came to know of the agreement between the parties. It is alleged that the respondent had taken signature of the petitioners on blank agreement and the petitioners had no occasion to go through the alleged agreement nor the petitioners were apprised of the contents of the agreement as the copy of the agreement was never provided to the petitioner. It is alleged that the arbitration clause was inserted by the respondent by perpetrating fraud.
OMP (T) 02/2021 Page No.3 of 214. It is further alleged that the disclosure made by the Arbitrator under Section 12 of the Act shows that he was appointed by the respondent in 59 matters out of which, he passed the awards in favour of the respondent in 40 matters. It is alleged that the respondent was not entitled to appoint the Arbitrator on its own and the nomination of Arbitrator by the respondent is bad in law after amendment 2015 in the Act. Reference is made of the case Perkins Eastman Architects DPC & Anr Vs. HSCC Ind Ltd, 2019 SCC OnLine SC 1517 to state that the Arbitrator failed to appreciate that the advantage, a party derives by nominating an Arbitrator of its choice needs be counter balanced by equal power with the other party.
5. On getting notice of the petition, the respondent filed its reply stating that the application is not maintainable and this Court does not have jurisdiction to appoint / substitute the Arbitrator. It is alleged that the petitioners under the disguise of this petition intends to challenge the order passed by the Arbitrator on the application of the petitioners under Section 16 of the Act, which can only be done in appeal. It denied the averments made in the petition and alleged that there existed valid arbitration agreement between the parties. The petitioners at the time of availing loan had signed the loan agreement and executed the documents, which were explained and read over to the petitioners. They had received the notice under Section 21 OMP (T) 02/2021 Page No.4 of 21 of the Act. They after availing the loan facility have now raised false & frivolous pleas. The Arbitrator already dismissed the application of the petitioners under Section 12 & 13 of the Act. It is stated that the appointment of the Arbitrator was made in terms of the arbitration clause contained in the agreement, which the petitioners had agreed at the time of signing the agreement.
6. I have heard Ld. Counsel Sh. Chayan Gupta for the petitioners and Ld. Counsel Sh. Himanshu for the respondent.
7. Ld. Counsel for the petitioner reiterated what has been stated in the petition. He stated that as per Section 2 (1) (e) of the Act, application under Section 14 & 15 of the Act is maintainable before this Court. In the present case, the petitioner only seeks the termination of mandate of Arbitrator. In this case, value of the claim is less than Rs. 2.0 crores, so, this petition lies with this Court. He referred an order of District Judge (Commercial Court-01), South-East District, Delhi in OMP (T) (Comm) No. 05/2020 dated 27.11.2020 to contend that an application to terminate the mandate of Sole Arbitrator under Section 14 (1) of the Act is maintainable before this Court. He also referred the case of Yashwardhan Raghuwanshi Vs. District & Sessions Judge & Anr, WP No. 19656/2020 decided by the High Court of Judicature for Madhya Pradesh at OMP (T) 02/2021 Page No.5 of 21 Jabalpur dated 26.02.2021 to contend that the Court of District Judge as the Principal Civil Court of original jurisdiction would be competent to decide the matters / disputes filed under Sections 9, 14, 34 & 36 of the Act and also under the provisions of Commercial Courts Act regardless of the value of claim. He referred the case of Doshion Pvt Ltd Vs. Hindustan Zinc Ltd, S. B. Arbitration Application No. 18/2017 decided by High Court of Judicature for Rajasthan at Jodhpur on 14.01.2018, where it was held that jurisdiction under Section 14 (2) of the Act, where the controversy remains concerning any of the grounds referred to in clause (a) of sub Section (1) of Section 14 and the mandate of Arbitrator is sought to be terminated by approaching the Court, the party has to apply to the Court and the Court would be as defined under Section 2 (1) (e) of the Act, which in the present case is the Principal Civil Court of the District. He also referred the case of Swadesh Kumar Agarwal & Anr Vs. Dinesh Kumar Agarwal & Ors, CA No. 2935-2938 of 2022, passed by Supreme Court dated 05.05.2022 to contend that filing of application under Section 14 before the District Court is permissible and maintainable. Ld. Counsel stated that it is a case of unilateral appointment of Arbitrator, which is in contravention of law laid down by the Supreme Court in the case of Perkins Eastman Architects DPC & Anr Vs. HSCC Ind Ltd, 2019 SCC OnLine SC 1517.
OMP (T) 02/2021 Page No.6 of 218. Ld. Counsel for the respondent per contra referred Section 14 of the Act to contend that this section makes mandatory for the Court to substitute the Arbitrator after termination of his mandate. Since, power to appoint an Arbitrator under the Act lies with the High Court or the Supreme Court as the case may be, therefore, the petitioner after the amendment in 2015 cannot make such application before this Court. Ld. Counsel referred Section 2 (1) (e) of the Act and stated that a harmonious interpretation of Court as per Section 2 (1) (e) & Section 14 (2) of the Act would mean that termination of the mandate of the Arbitrator could be done by a Court, which also has the power to substitute an Arbitrator. He placed reliance on the case DDA Vs. Tara Chand Civil Construction, OMP (Misc) (Comm) NO. 236/2019 decided by High Court of Delhi.
9. Ld. Counsel contended that the agreement consisted of an arbitration clause, which was signed by the petitioners before availing the loan facility. The agreement clause clearly provided for appointment of Sole Arbitrator by the respondent for resolution of disputes. Ld. Counsel stated that notice under Section 21 of the Act was duly served upon the petitioners. The appointment of Arbitrator was made in consonance with the agreement. The Arbitrator before entering into the reference had made the disclosures under Section 12 of the Act. He also OMP (T) 02/2021 Page No.7 of 21 dismissed the application of the petitioners under Section 12 & 16 of the Act, which order was not challenged by the petitioners.
10. I have given my thoughtful consideration to the rival contentions and perused the material placed on record and case laws (supra).
11. Sections 2(1)(e) of the Act reads as under:
"2. Definitions-(1) In this Part, unless the context otherwise requires,-
(a) ..................................................................................
(b) ..................................................................................
(c) .................................................................................
(d) .................................................................................
(e) "Court" means-
(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-
matter of the arbitration if the same had been the subject- matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes:
12. Section 11 of the Act is with respect to the appointment of the Arbitrators by the Supreme Court or as the case may be or, by the High Court or any person or the institution designated by such Court.
13. Section 14 of the Act reads as under:
OMP (T) 02/2021 Page No.8 of 2114. Failure or impossibility to act.-- (1) The mandate of an arbitrator shall terminate and he shall be substituted by another arbitrator, if --
(a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and
(b) he withdraws from his office or the parties agree to the termination of his mandate.
(2) If a controversy remains concerning any of the grounds referred to in clause (a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate.
(3) If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or sub-section (3) of section 12.
14. Section 15 of the Act reads as under:
15. Termination of mandate and substitution of arbitrator.--
(1) In addition to the circumstances referred to in section 13 or section 14, the mandate of an arbitrator shall terminate--
(a) where he withdraws from office for any reason; or
(b) by or pursuant to agreement of the parties. (2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced. (3) Unless otherwise agreed by the parties, where an arbitrator is replaced under sub-section (2), any hearings previously held may be repeated at the discretion of the arbitral tribunal. (4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalid solely because there has been a change in the composition of the arbitral tribunal."
15. It provides that the mandate of arbitrator shall terminate if he withdraws from office for any reason or by or pursuant to agreement of the parties. In such an event, the substitute OMP (T) 02/2021 Page No.9 of 21 arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced. If such an arbitrator is replaced, any hearings previously held may be repeated at the discretion of the arbitral tribunal. Unless otherwise agreed by the parties, the earlier order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator shall not be invalid.
16. Under Section 16 of the Act, the arbitral tribunal is empowered to rule on its own jurisdiction including ruling on any objections with respect to the existence or validity of arbitration agreement. Such plea shall be raised not later than the submission of the statement of defence. If such plea is rejected by the arbitral tribunal, it has to proceed with the arbitral proceedings and declare an award. If plea of jurisdiction is accepted by the arbitral tribunal, the respondent may file an appeal under section 37 of the Act. If plea of jurisdiction is not accepted, the respondent may challenge such ruling along with award under section 34 of the Act.
17. Sub-section (1) of Section 29A of the Act provides that the award shall be made within a period of twelve months from the date, the arbitral tribunal enters upon the reference. The explanation to the said provision provides that an arbitral tribunal shall be deemed to have entered upon the reference on OMP (T) 02/2021 Page No.10 of 21 the date on which the arbitrator or all the arbitrators, as the case may be, have received notice in writing of their appointment. Sub-section (2) of Section 29A of the Act provides that if the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties may agree. Sub-section(3) of Section 29A of the Act provides that the parties may, by consent, extend the period specified in subsection (1) for making award for a further period not exceeding six months. Subsection (4) of Section 29A of the Act provides that 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. If the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, the Court may pass an order for reduction of fees of arbitrator(s) by not exceeding five per cent for each month of such delay. Sub- section(5) of Section 29A of the Act provides that the extension may be granted only for sufficient cause and on such terms and conditions as may be imposed by the Court.
18. In the case of DDA vs M/s Tara Chand Sumit Construction Company, OMP (Misc.) (Comm.) 236/2019, OMP (T) 02/2021 Page No.11 of 21 decided on 12/05/2020, it was held that an application under Section 29A of the Act seeking extension of the mandate of the Arbitrator would lie only before the Court which has the power to appoint Arbitrator under Section 11 of the Act and not with the Civil Courts. Petitions under Section 11 of the Act are filed in the High Court irrespective of the pecuniary jurisdiction of the Court and the same analogy would apply to the petitions under Section 29A of the Act. It was held that there is no merit in the contention of the learned counsel for the respondent that the High Court has no pecuniary jurisdiction to entertain the petition having the value of the claims below Rs. 2.0 Crores.
19. In the case of Proddatur Cable TV Digi Services vs. Siti Cable Network Ltd., 2020 SCC Online Del 350, following the ratio of the judgment in the case of Perkins (supra), it was held that it is clear that a unilateral appointment by an authority which is interested in the outcome or decision of the dispute is impermissible in law. When the arbitration clause empowers the Company to appoint Sole Arbitrator, it can hardly be disputed that the Company acting through its Board of Directors will have an interest in the outcome of the dispute. In that case, the appellant had filed the petition under Section 14 and 15 of the Act seeking declaration that the mandate of the arbitrator appointed by the respondent be terminated and an arbitrator be appointed by High Court under the provisions of the Act.
OMP (T) 02/2021 Page No.12 of 21Following the ratio of the judgments in Bharat Broadband Network Limited Vs. United Telecoms Limited, CA No. 3973 of 2019 decided on 16.04.2019, the mandate of the Arbitrator was terminated de jure and another independent Sole Arbitrator was appointed to substitute the previous Arbitrator.
20. In the case of M/s Omcon Infrastructure Pvt. Ltd. Vs India Bulls Investment Advisors Ltd, OMP (T) (Comm) No. 35/2020 decided on 01/09/2020, petition was filed under Section 14 and 15 of the Act seeking termination of the mandate of the Arbitrator unilaterally appointed by the respondent and also for quashing of order passed by Ld. Arbitrator rejecting the application of petitioner under Section 12 of the Act. The ratio of the decision in case of Perkins (supra) was applied and it was held that once the Managing Director of the respondent Company was ineligible to appoint the arbitrator, the same would also bar the Company from unilaterally appointing the sole arbitrator. Reference was also made to the decision of Proddatur Cable TV Digi Services (supra).
21. In the case of Lalitkumar V Sanghavi (D) Th. L.Rs. and Ors. Vs Dharamdas V. Sanghavi and Ors supra, the Supreme Court held that the question whether the mandate of the arbitrator stood legally terminated or not can be examined by OMP (T) 02/2021 Page No.13 of 21 the court "as provided under Section 14(2)" of the Act. Also was stated that the expression "Court" is a defined expression under Section 2(1)(e) of the Act. In that case, the appellants were given liberty to approach the appropriate court for determination of the legality of the termination of the mandate of the arbitral tribunal, which in turn was based upon an order dated 29/10/2007 by which the arbitral proceedings were terminated by the Presiding Arbitrator as for more than four years, the matter was pending and fees of the Arbitrator were not paid despite directions.
22. In the case of DDA vs M/s Tara Chand Sumit Construction Company (supra), the High Court interpreted sub Section (1) of Section 2 of the Act with respect to the definition of the 'Court' and observed that sub Section (1) of Section 2 begins with the expression "in this part, unless the context otherwise requires". It was observed that a Court which has the power to appoint an Arbitrator under Section 11 of the Act can only extend the mandate of the arbitrator under Section 29A of the Act as in the process of extending the mandate of the arbitrator under Section 29A of the Act, need may also arise for substitution of the arbitrator and there may be situation where conflict would arise between the powers of Superior Courts to appoint Arbitrators under Section 11 of the Act and those of the Civil Court to substitute those Arbitrators under Section 29A of OMP (T) 02/2021 Page No.14 of 21 the Act. It was held that there is no merit in the contention of the Ld. Counsel for respondent that High Court has no pecuniary jurisdiction to entertain the petition for extension of mandate of the arbitrator for the value of claims below Rs 2.0 crores. True that the interpretation of the term "Court" was in the context of Section 29A of the Act for extension of the mandate of the Arbitrator but the fact remains that while extending the mandate of an Arbitrator, there may also be need to substitute an Arbitrator. It was held that there was need to avoid conflict that would arise between the power of Superior Courts to appoint Arbitrators under Section 11 of the Act and those of the Civil Court to substitute those Arbitrators under Section 29A of the Act as Section 11 of the Act confers power of appointment of Arbitrator only on the High Court or the Supreme Court, as the case may be.
23. By Section 9 of the Arbitration and Conciliation (Amendment) Act 2015 {in short Act 3 of 2016}, Section 14 of the Principal Act has been amended. Prior to said amendment, the mandate of legislature with respect to the said provision was only for the termination of mandate of an Arbitrator. After the amendment, the mandate of legislature is not only for making provision for termination of the mandate of an Arbitrator but also for substitution by another Arbitrator, on existence of certain pre-conditions, as detailed therein and as elicited OMP (T) 02/2021 Page No.15 of 21 hereinbefore, which is implicitly clear by the following reproduction of Section 14 before the amendement by Act 3 of 2016 and after the amendment by Act 3 of 2016.
24. Section 14 (1) of the Act after amendment by Act 3 of 2016 reads as under:
"14. Failure or impossibility to act.- (1) The mandate of an arbitrator shall terminate and he shall be substituted by another arbitrator, if--
(a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and
(b) he withdraws from his office or the parties agree to the termination of his mandate"
25. In the case of Swadesh Kumar Agarwal vs Dinesh Kumar Agarwal & Ors, (supra), the Sole Arbitrator was appointed by the parties themselves by mutual consent and in the absence of any written contract containing the arbitration agreement. Following questions arose before Supreme Court for consideration:-
"6.(i) Whether the High Court in exercise of powers under section 11(6) of the Act, 1996, can terminate the mandate of the sole arbitrator?
(ii) Whether in the absence of any written contract containing the arbitration agreement, the application under section 11(6) of the Act, 1996 would be maintainable?
(iii) Is there any difference and distinction between sub-
section (5) of section 11 and sub-section (6) of section 11 of the Act, 1996?
(iv) Whether the application under sub-section (6) of section 11 shall be maintainable in a case where the parties themselves appointed a sole arbitrator with mutual consent?
(v)Whether in the facts and circumstances of the case the OMP (T) 02/2021 Page No.16 of 21 High Court was justified in terminating the mandate of the sole arbitrator on the ground that there was undue delay on the part of the sole arbitrator in concluding the arbitration proceedings which would lead to the termination of his mandate, in an application under section 11 (6) of the Act, 1996?
(vi) Whether in the facts and circumstances of the case, the learned Trial Court was justified in dismissing the application submitted by the appellant, submitted to reject the application under section 14(2) of the Act, 1996 in exercise of powers under Order VII Rule 11 of CPC?"
26. The Supreme Court held:-
"11. In view of the aforesaid discussion and for the reasons stated above, it is observed and held as under:-
(i) That there is a difference and distinction between section 11(5) and section 11(6) of the Act, 1996;
(ii) In a case where there is no written agreement between the parties on the procedure for appointing an arbitrator or arbitrators, parties are free to agree on a procedure by mutual consent and/or agreement and the dispute can be referred to a sole arbitrator/arbitrators who can be appointed by mutual consent and failing any agreement referred to section 11(2), section 11(5) of the Act shall be attracted and in such a situation, the application for appointment of arbitrator or arbitrators shall be maintainable under section 11(5) of the Act and not under section 11(6) of the Act;
(iii) In case where there is a written agreement and/or contract containing the arbitration agreement and the appointment or procedure is agreed upon by the parties, an application under section 11(6) of the Act shall be maintainable and the High Court or its nominee can appoint an arbitrator or arbitrators in case any of the eventualities occurring under section 11(6)(a) to (c) of the Act;
(iv)Once the dispute is referred to arbitration and the sole arbitrator is appointed by the parties by mutual consent and the arbitrator/arbitrators is/are so appointed, the arbitration agreement cannot be invoked for the second time;
(v)In a case where there is a dispute/controversy on the OMP (T) 02/2021 Page No.17 of 21 mandate of the arbitrator being terminated on the ground mentioned in section 14(1)(a), such a dispute has to be raised before the "court", defined under section 2(e) of the Act, 1996 and such a dispute cannot be decided on an application filed under section 11(6) of the Act, 1996."
27. In the case in hand, as evident from the loan agreement, which bears the signatures of the petitioners, the petitioners had agreed for arbitration vide arbitration clause 10.9 in the written loan agreement dated 29.11.2014, whereas with respect to the question that arose for consideration before Supreme Court, above elicited, the findings/law laid is after taking into consideration the facet of absence of written agreement and also that in case of arising of dispute/controversy on mandate of Arbitrator to be terminated on the grounds mentioned in Section 14 of the Act, it is to be raised before the competent Court.
28. On an analogy of interpretation of Section 2(1)(e) of the Act for interpreting the term "Court" adopted by the High Court in the case of DDA vs M/s Tara Chand Sumit Construction Company (supra), the elicited mandate of legislature amended by Act 3 of 2016 is to be seen. It makes clear that not only adjudicating authority has to adjudicate whether the mandate of an Arbitrator shall terminate as per Section 14 (1)and (2) of the Act but also in case of such termination, there has to be a substitution by another Arbitrator. In terms of law laid by the High Court in the case of DDA vs M/s Tara Chand Sumit OMP (T) 02/2021 Page No.18 of 21 Construction Company (supra), such substitution of an Arbitrator is to be done by the Court, which has the power to appoint an Arbitrator under Section 11 of the Act and not the Civil Courts. The mandate of legislature, as elicited and discussed above in terms of the amended Section 14 of the Act by Act 3 of 2016 also makes it vivid and clear that when the mandate of an Arbitrator shall terminate, he shall be substituted by another Arbitrator if he becomes de-jure or de-facto unable to perform his functions.
29. Since, the petitions under Section 11 of the Act are filed in Delhi High Court irrespective of the pecuniary jurisdiction of the Court, applying the same analogy in the petition under Section 29A of the Act in the case of DDA vs M/s Tara Chand Sumit Construction Company (supra), the High Court has held that there is no merit in the contention of Ld. Counsel for the respondent that High Court has no pecuniary jurisdiction to entertain the petition, value of the claims being below Rs 2 crores.
30. True that unilateral appointment by an authority which is interested in the outcome or decision of the dispute is impermissible in law as per law laid in the cases of Perkins (supra), Bharat Broadband Network Limited (supra) and Proddatur Cable TV Digi Services (supra), but fact remains that OMP (T) 02/2021 Page No.19 of 21 in an event when the Arbitrator becomes unable to perform his /her functions as an Arbitrator on finding the mandate of such Arbitrator terminated de jure, then while terminating the mandate of such Arbitrator in the same exercise, another independent Sole Arbitrator needs to be appointed to substitute the previous Arbitraror, as per the amended Section 14 of the Act subsequent to the amendment by Act 3 of 2016. This Court has no power under Section 11 of the Act to appoint the Arbitrator or under Section 29A of the Act to extend the period for making an award, so also to substitute an Arbitrator in terms of law laid in the case of DDA vs M/s Tara Chand Sumit Construction Company (supra).
31. In view of the foregoing discussions, applying the analogy adopted in the case of DDA vs M/s Tara Chand Sumit Construction Company (supra) by the High Court, I am of the opinion that the mandate of legislature, consequent to amendment by Act 3 of 2016 in Section 14 of the Act, is that the Court considering the termination of the mandate of an Arbitrator on existence of any of the pre-conditions laid in sub section (1) and (2) of Section 14 of the Act, also at the same time needs to substitute such Arbitrator by another Arbitrator. This Court has no power to substitute the present Arbitrator by another Arbitrator.
OMP (T) 02/2021 Page No.20 of 2132. In the fact of the matter, this petition is not maintainable in this Court and is hereby dismissed.
33. The parties are left to bear their own costs.
34. File be consigned to record room.
Announced in open court today i.e. 18.10.2022 (SANJIV JAIN) District Judge (Commercial Court- 03) Patiala House Courts, New Delhi OMP (T) 02/2021 Page No.21 of 21