The Union of India and 10 Ors v. M/S Puna Hinda

ORDER Date : 12.12.2024

Heard Mr. M. Kato, learned counsel for the petitioner. Also heard Mr. B. Senapati, learned counsel along with Mr. B. Picha, learned counsel for the sole respondent.

¶2The present Civil Revision Petition has been instituted by the petitioners herein, assailing an order dated 30.09.2024, passed by the learned District & Sessions Judge, West Kameng, Pakke Kesang, East Kameng, Bichum & Tawang (hereinafter referred to as 'the District Judge'), in Arbitration No. 01/2024, whereby the preliminary objection raised by the petitioners herein, as respondents, with regard to maintainability of the application so filed by the respondents herein, Page No.# 4/9 under Section 29A of the Arbitration and Conciliation Act, 1996, came to be rejected. The learned District Judge, proceeded to hold that he had the jurisdiction to entertain the application so preferred before him, by the respondents herein, invoking the provisions of Section 29(A) (4) of the said Act of 1996.

¶3Mr. Kato, learned counsel for the petitioner has submitted that the Arbitrator, in the matter, being so appointed by this Court, it is only this Court that would have the jurisdiction to entertain any application, including an application preferred under sub-Section (4) of Section 29(A) of the said Act of 1996. He further submits that the learned District Judge erred in proceeding to conclude that he had jurisdiction to entertain the application so preferred under sub-Section (4) of Section 29(A) of the said Act of 1996 by the petitioners, herein, for extension of the mandate of the arbitrator to continue with the Arbitration proceeding and pass the award therein. Accordingly, he submits that the order dated 30.09.2024 would call for an interference by this Court.

¶4Per contra, Mr. D. Senapati, learned counsel appearing for the respondents herein, had submitted that the respondents had instituted an application, invoking the provisions of sub-Section (4) of Section 29(A) of the said Act of 1996 before the learned District Judge, praying for extension of the mandate of the arbitrator. He submits that the provisions of sub-Section (4) of Section 29(A) of the said Act of 1996, mandates that the mandate of the arbitrator(s) shall terminate unless the Court has either prior to or after the expiry of the period so specified, extends the period of mandate of such arbitrator. He submits that the term 'Court' so finding mention in the provisions of sub-Section (4) of Section 29(A) of the said Act of 1996 is defined under the provisions of Section 2(1) (e) of the said Act of 1996 and the said term has been so defined to mean the Principal Civil Court of original jurisdiction in a district and also includes the High Court in exercise of the original civil jurisdiction. Page No.# 5/9

¶5Mr. Senapati, learned counsel further submits that the Gauhati High Court does not have an ordinary original Civil jurisdiction and accordingly, the application so preferred under sub-Section (4) of Section 29(A) of the said Act of 1996 would be maintainable only before the Principal Civil Court of original jurisdiction and the learned District & Sessions Judge, West Kameng, Pakke Kesang, East Kameng, Bichum & Tawang being the Principal Civil Court of the district, the order dated

30.09.2024, passed by the learned District Judge would not call for any interference.

¶6In support of his submission, Mr. Senapati, learned counsel has placed reliance on a recent decision of the Hon'ble Supreme Court, in the case of Chief Engineer (NH) PWD (Roads) Vs M/S BSC & C and C JV[vide order dated

13.05.2024 in SLP (C) No(s). 10544/2024].In the above premises, Mr. Senapati, learned counsel has submitted that the present Civil Revision Petition would be required to be dismissed, in limine.

¶7I have heard the learned counsels appearing for the parties and also perused the materials placed on record.

¶8The respondents herein had instituted an application before the learned District Judge by invoking the provisions of sub-Section (4) of Section 29(A) of the said Act of 1996 and therein, a preliminary objection came to be raised by the petitioners herein, with regard to the jurisdiction of the learned District Judge to consider the said application. The learned District Judge, on consideration of the said application, proceeded to hold that the said application would be maintainable before him and accordingly, rejected the preliminary objection, regarding jurisdiction, so raised by the petitioners herein. It is also to be noted that the preliminary objection so raised, was to the effect that this Court having appointed the arbitrator in the matter, the application so preferred by the respondents herein, invoking the provisions of sub-Section (4) of Section 29(A) of the said Act of 1996 Page No.# 6/9 would be maintainable before this Court and not before the learned District Judge.

¶9The provisions of sub-Section (4) of Section 29(A) of the said Act of 1996 being relevant, is extracted herein below:- "29 A. Time Limit for arbitral award.-(1) The award in matters other than international commercial arbitration shall be made by the arbitral tribunal within a period of twelve months from the date of completion of pleadings under sub-section (4) of Section 23. ………………………………………………………………

(2)………………………………………………………………..

(3)………………………………………………………………..

(4) 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: Provided that while extending the period under this sub-section, if the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, it may order reduction of fees of arbitrator(s) by not exceeding five percent, for each month of such delay: Provided further that where an application under sub-section (5) is pending, the mandate of the arbitrator shall continue till the disposal of the said application: Provided also that the arbitrator shall be given an opportunity of being heard before the fees is reduced."

¶10A perusal of the provisions of sub-Section (4) of Section 29(A) of the said Act of 1996, would go to reveal that the mandate of an arbitrator would stand terminated in the event, the award is not made within the period specified in sub-Section (1) or the extended period specified under sub-Section (3) of Section 29(A), unless the Court has either prior to or after the expiry of the period so specified, extendedsuch period. Page No.# 7/9

¶11The term 'Court' finding mention in the provisions of sub-Section (4) of Section 29(A) of the said Act of 1996, is defined under the provisions of Section

(2)(1)(e) of the said Act of 1996. The said definition being relevant is extracted herein below:-"2. Definitions.-(1) In this Part, unless the context otherwise requires,-

(a)……………………………….

(b)……………………………….

(c)………………………………. [(ca)…………………………….]

(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;

(ii) in the case of international commercial arbitration, 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, and in other cases, a High Court having jurisdiction to hear appeal from decrees of courts subordinate to that High Court;]"

¶12The arbitration involved in the present proceedings not being an international commercial arbitration, the provisions of Section (2) (1)(e)(i) of the said Act of 1996 would be applicable. The term 'Court' as defined under Section (2) (1)(e)(i) of the said Act of 1996 would mean the Principal Civil Court of original jurisdiction in a district, and also would include the High Court in exercise of its ordinary original civil jurisdiction. It is to be noticed that the Gauhati High Court does not have an ordinary original civil jurisdiction. Accordingly, on a conjoint reading of the provisions of sub-Section (4) of Section 29(A) and Section (2) (1)(e)(i) of the said Page No.# 8/9 Act of 1996, would go to reveal that the 'Court' as finding mention in the provisions of sub-Section (4) of Section 29(A) of the said Act of 1996 would mean the Principal Civil Court of original jurisdiction in a district. Accordingly, the learned District Judge would be the Principal Civil Court of original jurisdiction for the purpose of entertaining an application under the provisions of sub-Section (4) of Section 29(A) of the said Act of 1996.

¶13Support in this connection, has been drawn from the decision of the Hon'ble Supreme Court, in the case of Chief Engineer (NH) PWD (Roads) (supra). The conclusion as drawn by the Hon'ble Supreme Court in the matter, being relevant, is extracted herein below: - "The power under sub-Section (4) of Section 29(A) of the Arbitration Act vests in the Court as defined in Section 2(1) (e) of the Arbitration Act. It is the principal Civil Court of original jurisdiction in a district which includes a High Court provided the High Court has ordinary original civil jurisdiction. In this case, the High Court does not have the ordinary original civil jurisdiction. The power under sub-section (6) of Section 29A is only a consequential power vesting in the Court which is empowered to extend the time. If the Court finds that the cause of delay is one or all of the arbitrators, while extending the time, the Court has power to replace and substitute the Arbitrator(s). The said power has to be exercised by the Court which is empowered to extend the time as provided in sub-Section (4) of Section 29A of the Arbitration Act."

¶14The conclusions as reached by the Hon'ble Supreme Court, in the above mentioned case is squarely applicable to the present case, and accordingly, this Court is of the considered view that the order dated 30.09.2024, passed by the learned District & Sessions Judge, West Kameng, Pakke Kesang, East Kameng, Bichum & Tawang, in Arbitration No. 01/2024, holding that he had the jurisdiction to entertain the application so filed by the respondents herein, invoking the Page No.# 9/9 provisions of sub-Section (4) of Section 29(A) of the said Act of 1996, is not erroneous and would not require any interference.

¶15It is to be noted that this Court, in the present order, has only considered the order dated 30.09.2024 to the extent of the issue of jurisdiction raised by the petitioners, herein, before the learned District Judge and has not considered the other issues so arising in the Arbitration Case No. 01/2024 on merit.The learned District Judge would now proceed to consider the issues so arising in Arbitration Case No. 01/2024, expeditiously.

¶16In view of the above discussion, the present Civil Revision Petition is held to be devoid of any merit and accordingly, the same stands dismissed, however, there would be no order as to costs.

JUDGE Comparing Assistant

Page No.# 1/9 GAHC040017342024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : CRP/57/2024 The Union of India and 10 Ors represented by the Secretary, Defence, Ministry of Defence, Govt of India, 104 South Block, New Delhi 110011 2: The Secretary Age: Occupation : Ministry of Road Transport and Highway(MoRTH) Transport Bhawan 1 Parliament Street New Delhi 110011 3: The Superintending Engineer Age: Occupation : Regional Office ministry of Road Transport and Highway (MoRTH) Govt of India First Floor campus of Chief Engineer (WE) Mowb-II Itanagar 791111 4: The Secretary Age: Occupation : Border Road Development Board (BRDB) ministry of Defence (BR) Sena Bhawan B Wing 4th Floor New Delhi 110011 Page No.# 2/9 5: The Director General of Border Roads Organization Age: Occupation : Seema Sadak Bhawan Ring Road Delhi Cantt New Delhi 110011 6: The Chief Engineer Age: Occupation : Project Vartak C/o 99 APO Tezpur 931716 Assam 7: The HQ Chief Engineer Age: Occupation : Project Pushpak C/o 99 APO Pin 930017 8: The Commander Age: Occupation : 763 BRTF (GREEF) C/o 99 APO Khirmu Tawang Arunachal Pradesh Pin 930117 9: The OC Age: Occupation : Contract 117 RCC (GREEF) C/o 99 APO Lumla Tawang Arunachal Pradesh Pin 9300117 10: The Engineer in Charge Age: Occupation : 177 RCC (GREEF) C/o 99 APO Lumla Tawang Arunachal Pradesh Page No.# 3/9 Pin 9300117 11: The Supervisor JE Age: Occupation : 117 RCC (GREEF) C/o 99 APO Lumla Tawang Arunachal Pradesh Pin 930011 VERSUS M/s Puna Hinda having its registered office at C/o Times Video Library, Akash Deep, PO and PS Itanagar, Papum Pare District, Arunachal Pradesh represented by its Attorney Shri Rubu Hangu, Son of Shri Rubu Jarbo, C/o New Holland Construction Equipment's (P) Ltd, Pappu Nallah, PO and P Spappu Nallah, Papum Pare District, Arunachal Pradesh. Advocate for the Petitioner : Marto Kato, M Tanga,DSGI Advocate for the Respondent : Jumgam Jini, Tao Tarin,Kirmani Lollen,A T Tara,Binter Picha BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR