Mandate Of The Arbitral Tribunal Can Only Be Extended By The High Court If The Tribunal Was Constituted Pursuant To Directions Under Section 11(6) Of The A&C Act: Meghalaya High Court

The Bench of Justice H.S. Thangkhiew of Meghalaya High Court has held that the mandate of the arbitral tribunal can only be extended by the High Court under Section 29A of the A&C Act if the tribunal was constituted pursuant to the directions issued by the Court under Section 11(6) of the Act.

The Court held that though the Court may have directed the nominee arbitrators of the parties to appoint the presiding arbitrator, the mandate of the tribunal constituted pursuant to such directions can only be extended by the High Court and not by the Principal Civil Court.

Facts

The petitioner approached the High Court under Section 11(4) & (6) of the A&C Act seeking the appointment of the presiding arbitrator. The Court disposed of the application with directions to nominee arbitrators for both parties to appoint the presiding arbitrator.

The tribunal was constituted and the proceedings commenced on 21.04.2022. The proceedings could not be completed in time and the parties with mutual consent extended the mandate of the arbitrator till 04.04.2024, however, the tribunal still could not complete the arbitral proceedings.

The petitioner approached the High Court under Section 29A(4) seeking extension of time for making the arbitral award.

Submissions by the Parties

The respondent did not oppose the extension, however, it questioned the maintainability of the petition before the High Court on the ground that the presiding arbitrator was not appointed by the High Court, ergo, the petition would lie before the Principal Civil Court as per Section 2((1)e) of the Act.

Analysis by the Court

The Court observed that though the presiding arbitrator was not directly appointed by the High Court under Section 11(6), however, it was only pursuant to the directions of the High Court that the nominee arbitrators appointed it.

The Court held that the mandate of the arbitral tribunal can only be extended by the High Court under Section 29A of the A&C Act if the tribunal was constituted pursuant to the directions issued by the Court under Section 11(6) of the Act.

The Court held that though the Court may have directed the nominee arbitrators of the parties to appoint the presiding arbitrator, the mandate of the tribunal constituted pursuant to such directions can only be extended by the High Court and not by the Principal Civil Court.

The Court relied upon the decision of a coordinate bench in Chief Engineer (NH) PWD (Roads) vs. M/s BSC&C wherein the Court held that in a situation where the arbitrator is appointed by the High Court under Section 11, an application under Section 29A can only lie before the High Court and if the application is entertained by the Principal Civil Court, it would lead to an anomalous situation wherein an arbitrator appointment by the High Court can be substituted by a lower court.

Accordingly, the Court dismissed the objection and appointed the arbitrator.

Case Title: BSCPL Infrastructure Limited v. The Addl. Chief Engineer, PWD(Roads), Arb. P. No. 2 of 2024

Date: 23.04.2024

Counsel for the Petitioner: Mr. K. Ch. Gautam, Adv.

Counsel for the Respondent: Mr. A.S. Pandey, Adv. with Mr. A.H. Kharwanlang, Addl. Sr. GA Mr. J.N. Rynjah, GA

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