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Telecommunication Consultants India ... vs Shivaa Trading on 26 July, 2022

Author: Anup Jairam Bhambhani

Bench: Anup Jairam Bhambhani

                          $~39

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +      O.M.P. (COMM) 311/2022 & I.A. 11551-11553/2022

                                 TELECOMMUNICATION CONSULTANTS INDIA LTD
                                                                              ..... Petitioner
                                             Through: Mr. Nikhilesh Krishnan, Advocate
                                                      with Ms. Harshita Sinha, Advocate.

                                                     versus

                                 SHIVAA TRADING                                        ..... Respondent
                                              Through:

                                 CORAM:
                                 HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
                                                     ORDER

% 26.07.2022 I.A. Nos.11551/2022 (exemption) Exemption allowed, subject to just exceptions. Let requisite compliances be made within 01 week. Application stands disposed of.

I.A. Nos.11552/2022 (condonation of delay in filing) & 11553/2022 (condonation of delay in re-filing) By way of these applications, the petitioner seeks condonation of 69 days delay in filing and 25 days delay in re-filing the petition.

2. The arbitral award that is impugned by way of the present petition was rendered on 17.12.2021, which fell within the period between Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:30.07.2022 OMP (COMM.) 311/2022 Page 1 of 4 13:37:31 15.03.2020 and 28.02.2022, and vidé order dated 10th January 2022 made in Suo Motu Writ Petition (Civil) No. 3/2020, in relation to limitation that would have expired between that period, the Hon'ble Supreme Court has directed as follows :

"In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that long period shall apply."

3. The present petition was filed on 27th May 2022, which is accordingly within the three-month period from 1st March 2022.

4. In view of the foregoing therefore, there is in fact no delay in filing the petition; and furthermore, the delay of 25 days in re-filing the petition is also sufficiently explained.

5. Accordingly, for the reasons stated in the applications, which are supported by affidavits, the same are allowed; and delay in filing and re-filing the petition is condoned.

6. The petition is taken on Board.

7. Applications stand disposed of.

O.M.P.(COMM.) 311/2022

8. By way of the present petition under section 34 of the Arbitration and Conciliation Act 1996 ('A&C Act' for short), the petitioner seeks setting-aside of arbitral award dated 17.12.2021 rendered by the learned Sole Arbitrator inter-alia on the ground that the arbitrator was appointed vidé communication dated 10.09.2018 by the petitioner itself.

9. By way of the impugned award, all claims and counter-claims of the parties have been rejected.

10. Mr. Nikhilesh Krishnan, learned counsel for the petitioner submits that regardless of the fact that the learned Sole Arbitrator was appointed by the petitioner and the petitioner participated in the arbitral proceedings, yet, since the appointment of the learned Sole Arbitrator is de-jure invalid in view of section 12(5) of the A&C Act, which was in force from 23.10.2015 i.e. prior to the appointment of the arbitrator, the petitioner is entitled to challenge the arbitral award inter-alia on this ground.

11. In support of this contention, learned counsel draws attention to the decision of the Hon'ble Supreme Court in Bharat Broadband Network Limited vs. United Telecoms Limited reported as (2019) 5 SCC 755, which according to counsel's submissions, holds that section 12(5) of the A&C Act cannot be waived by conduct but must necessarily be waived by an express agreement in writing, which was not the case here. It is pointed-out that even in Bharat Broadband Network Limited (supra), the letter appointing the arbitrator had been issued by the appellant in that case; and yet the appellant was held entitled to challenge the arbitral award inter-alia on that ground. The petitioner has also raised other grounds of challenge to the conclusions contained in the arbitral award.

12. Upon a prima-facie consideration of the grounds of challenge, issue notice, returnable 14.11.2022.

13. Upon the petitioner taking steps, let notice be sent to the respondent for the returnable date.

14. Let the notice indicate that reply to the petition be within 06 weeks of service; rejoinder thereto, if any, be filed within 04 weeks thereafter; with copies to the opposing counsel.

15. Re-notify on 14th November 2022.

ANUP JAIRAM BHAMBHANI, J JULY 26, 2022 Ne Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:30.07.2022 OMP (COMM.) 311/2022 Page 4 of 4 13:37:31