calcutta high court

Calcutta High Court: In an application filed under Section 29-A(4) of the Arbitration and Conciliation Act, 1996 (the Act), seeking an extension of the mandate of the Arbitrator, a single-judge bench comprising of Moushumi Bhattacharya,* J., allowed the application for extension, extending the mandate for 6 months from 01-10-2023 to 31-03-2024. The Court granted the petitioner the benefit of Section 4 of the Limitation Act, 1963, as 02-10-2023 was a national and Court holiday.

“There is nothing to suggest that the provisions of The Limitation Act or the General Clauses Act will not apply under section 29A of the 1996 Act particularly where 2nd October, 2023 was a declared national holiday.”

Brief Facts

In the instant matter, the petitioner preferred the present petition seeking extension of the arbitrator’s mandate under section 29A(4) of the Act. The dispute arose over the calculation of the completion of pleadings and the starting point for the 12-month period under section 29A(1) of the Act.

The petitioner stated that the pleadings were completed on 30-09-2022, and the 12-month period under section 29A(1) ended on 01-10-2023. The petitioner argued for excluding 01-10-2023, citing Section 12 of the Limitation Act, Section 9 of the General Clauses Act, 1897, and the national holiday on 02-10-2023. The respondent opposed the extension, claiming the mandate expired on 19-08-2023, as it did not consent to the 6-month extension under section 29A(3).

Moot Point

Whether the petitioner filed the application for extension of the mandate of the Arbitrator within the timelines prescribed under Section 29A of the Act?

Law Point

  • Section 29A(1) of the Act sets a 12-month timeframe for making an award in non-international commercial arbitrations from the date of completion of pleadings.

  • Section 29A(3) of the Act allows parties to extend the mandate under Section 29A(1) for up to 6 months.

  • Section 23(4) of the Act specifies the completion of pleadings as the basis for the 12-month period under Section 29A(1).

  • Section 12 of The Limitation Act excludes the first day for calculating the period of limitation.

  • Section 9 of the General Clauses Act provides a similar benefit for excluding the first day in the computation of time.

Court’s Assessment

The Court observed that the respondent initially admitted, in its application for an extension, that the petitioner’s rejoinder should be treated as part of the pleadings. However, the respondent later sought to disown this admission. The Court, considering the respondent’s conduct, concluded that the rejoinder is indeed part of the pleadings, and the completion date is 30-09-2022.

“The conduct of the respondent is that of slumbering litigant who also made calculated moves to frustrate the arbitration. This is not a case of a recalcitrant litigant but of one who took every opportunity to stretch the timelines under section 29A but tightened the same when the petitioner became entangled in the mesh of dates.”

The Court stated that “it would be worthwhile to bear in mind that section 29A of the 1996 Act is not about the Court sitting with a calculator in one hand and a (whacking) stick in the other; but about ensuring that the parties and the arbitral tribunal do not contribute to an inordinately long arbitration process.”

The Court observed that there is no evidence on record to show that the petitioner took the timelines for granted or fell off the radar during the course of arbitration. The Court stated that “Section 29A underlines the distinction between an indifferent litigant who allows the mandate to terminate and a vigilant litigant who makes his best effort to meet the timelines but is caught in the games played by the opponent. The present case falls in the latter category.”

The Court applied Section 12(1) of the Limitation Act and Section 9 of the General Clauses Act to exclude 01-10-2023 from the calculation. Consequently, the first date for computation is 02-10-2023, which was a holiday. The Court granted the benefit of Section 4 of the Limitation Act for filing on the next working day, 03-10- 2023.

The Court highlighted the respondent’s deliberate actions, including seeking extensions and remaining silent on consent under section 29A(3) of the Act and hardening “its stand only after the petitioner filed the present application”, contributing to the delay and stated that the petitioner filed the application promptly after the respondent’s refusal to extend.

Court’s Decision

The Court allowed the application for extension of the Arbitrator’s mandate under Section 29A(4), extending it for 6 months from 01-10-2023 to 31-03-2024, considering the petitioner’s effort to meet timelines.

This is the first extension prayed for, with the tribunal scheduled to fix dates for cross-examination in October 2023.

[Satnam Global Infraprojects Ltd. v. Bharat Heavy Electricals Ltd., 2023 SCC OnLine Cal 4668, order dated 24-11-2023]

*Judgment by Justice Moushumi Bhattacharya

Advocates who appeared in this case :

Mr. Priyankar Saha, Mr. Oman Ahmad, Mr. Vikram Shah, Mr. Hemant Tiwari, Mr. Tuhin Dey, Counsel for the Petitioner

Mr. Rohit Das, Ms. Kishwar Rahman, Ms. Divya Jyoti Tekriwal, Ms. Sristi Roy, Counsel for the Respondent

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