Cyril Amarchand MangaldasExperts Corner

The Supreme Court of India has retrospectively applied a prohibition inserted by a 2015 amendment, where employees of a party cannot be appointed as arbitrators, to arbitrations commenced even before the amendment.

In Ellora Paper Mills v. State of M.P.,[1] the Supreme Court (Court) held that a tribunal comprised entirely of officers of the State had “lost its mandate” by virtue of the 2015 amendment (2015 amendment) to the Arbitration and Conciliation Act, 1996 (Act), which inter alia prevents appointing arbitrators who are the employees, consultants, or advisors, or persons that have any other past or present business relationship with a party to the dispute.

A reading of the judgment suggests that the Court premised its ruling on the fact that the underlying arbitration did not technically commence because the State had obtained a stay on proceedings from the Madhya Pradesh High Court. Therefore, the arbitration was deemed to have commenced after the 2015 amendment, due to which the judgment does not strictly apply the 2015 amendment retrospectively. However, as we explain below, obtaining a stay on proceedings presupposes that those proceedings have commenced. On that basis, this decision could serve as precedent for extending the 2015 amendment retrospectively.

The 2015 amendment inserted Section 12(5) and the Fifth, Sixth, and Seventh Schedules to the Act. Under Section 12(5), persons who fall within the Seventh Schedule are ineligible to act as arbitrators, unless the parties by way of express agreement waive the disqualification after the dispute arises. Besides the appointment of employees or consultants, other examples of such ineligibilities include having a significant financial interest in the outcome of the case, or being a lawyer in the same law firm which is representing one of the parties.

Under Section 12 of the Act, an arbitrator must disclose grounds that may give rise to “justifiable doubts” about his impartiality and independence. The grounds for this purpose are mentioned in the Fifth Schedule. Some of these grounds (namely, Entries 1-19) also appear in the Seventh Schedule, which governs when an arbitrator becomes ineligible for appointment. There is a commonality of grounds in the Fifth and Seventh Schedules for the sole purpose of ensuring that the grounds in the Seventh Schedule are made aware to the parties by the arbitrator due to her obligations in the Fifth Schedule. In this sense, the 2015 amendment creates a dichotomy between grounds that may give rise to justifiable doubts, which become the subject of a challenge to the arbitrator, and grounds in the Seventh Schedule that automatically render an arbitrator ineligible and terminate her mandate.

The Fifth and Seventh Schedules are inspired by the IBA Guidelines on the Conflicts of Interest in International Arbitration (IBA Guidelines), issued by the International Bar Association (IBA). However, they depart from the IBA Guidelines on the point of waiver. Unlike the IBA Guidelines, the proviso to Section 12(5) allows parties to waive the ineligibility in the Seventh Schedule after a dispute arises by way of an express agreement in writing.

In its judgment in Ellora Paper Mills[2], the Court ruled that because the Arbitral Tribunal constituted to hear the underlying dispute was composed of employees of the State, they became ineligible after the 2015 amendment, thereby terminating their mandate. Therefore, the Court ruled that the Tribunal could not continue, and a fresh arbitrator had to be appointed as per the Act.

The Court’s decision is a useful consolidation of the various rulings on Section 12(5) of the Act, and serves as a reminder for parties to assess whether arbitration agreements concluded before the various amendments to the Act need a rethink in light of the changing legal landscape. However, the decision’s impact on arbitrations commenced before the 2015 amendment is worrisome, as it has the potential effect of: (1) applying this substantive retrospectively (although, as discussed below this is based on the court’s interpretation that the arbitration did not “commence” before 2015 – which we argue is not accurate); and (2) compelling pre-amendment arbitrations to start afresh by reconstituting the Tribunal—to the extent the Tribunal has become ineligible and loses its mandate to act—even if the arbitration is at an advanced stage.

Facts

At the heart of controversy is a government tender issued by the State of Madhya Pradesh for the supply of specialised paper for the year 1993-1994. Ellora Paper Mills (Ellora) bid successfully and was awarded a contract through a supply order.

Subsequently, Ellora remonstrated that the State did not honour its payment obligations under the contract and had also rejected some consignments without justification. The State informed Ellora that the paper supplied did not conform to its specifications and could not be utilised.

From 1994 onwards, Ellora filed a variety of civil actions against the State. One of these was a civil suit for the recovery of money. The State approached the civil court under Section 8 of the Act, seeking a stay of the civil proceeding and requesting that the parties be referred to arbitration. The civil court rejected this application. On appeal, the Madhya Pradesh High Court in 2000 referred the parties to arbitration. A tribunal called the “Stationery Purchase Committee” was then constituted in the same year. It comprised of five officers of the State, including Deputy Secretary, Department of Revenue, Deputy Secretary, General Administration Department, and Deputy Secretary, Department of Finance.

Between 2000 and 2019, the arbitration did not progress in view of Ellora’s numerous objections to the Tribunal’s jurisdiction and consequent litigation on the matter. Ultimately, in 2019 Ellora filed an application before the Madhya Pradesh High Court under Section 14 (failure or impossibility to act) read with Sections 11 (appointment of arbitrators) and 15 (termination of mandate and substitution of arbitrator) of the Act. It requested that a new tribunal be constituted, as the Stationery Purchase Committee had become ineligible pursuant to the 2015 amendment inserting Section 12(5) in the Act.

Before the High Court, Ellora argued that because the nominated arbitrators were all employees of the State, they were hit by the ineligibility in Entry 1 of the Seventh Schedule of the Act, which bars an arbitrator from being an employee, consultant, advisor or having any other past or present business relationship with a party. By reason of their ineligibility, Ellora asserted that the ineligible arbitrators could not appoint their replacement arbitrators either.

The High Court rejected Ellora’s application. It relied on the Supreme Court’s decisions in BCCI v. Kochi Cricket (P) Ltd.[3] and Union of India v. Parmar Construction Co.,[4] where the Court had ruled that provisions of the 2015 amendment will not apply to arbitral proceedings commenced before the 2015 amendment unless the parties otherwise agreed. In this case, the High Court ruled that the prohibition in Section 12(5) read with the Seventh Schedule­—inserted by the 2015 amendment—preventing a party from appointing its own employees to an Arbitral Tribunal did not apply to the arbitration, as it had commenced before the 2015 amendment. Ellora appealed this decision to the Court.

Arguments by the parties

Before the court, Ellora argued that in the absence of an express agreement in writing to continue with the arbitration proceedings, the mandate of the Stationery Purchase Committee had terminated after the insertion of Section 12(5) of the Act.

In response, the State argued that since the Arbitral Tribunal was constituted in 2000, Section 12(5) would not apply. The State asserted that the 2015 amendment, which was brought into effect from 23-10-2015 did not have retrospective application.

The Court’s decision

The Court observed that though the Tribunal was formed in 2000, there was no real progress in the arbitration due to the various litigations initiated by Ellora, which culminated in a stay granted by the Madhya Pradesh High Court from 2001 to 2017. “[T]he fact remains”, the Court said, that “no further steps whatsoever have been taken in the arbitration proceedings and therefore technically it cannot be said that the arbitration proceedings by (the Stationery Purchase Committee) has commenced”.

Accepting that the Arbitral Tribunal—comprising officers of the State—were hit by the disqualification in Section 12(5) read with Entry 1 in the Seventh Schedule of the Act, the Court ruled that all the members had become ineligible to continue as arbitrators. When the arbitration clause is found to be foul with the amended provision, the appointment of arbitrators would be “beyond the pale of the arbitration agreement”, empowering a court to appoint an arbitrator as may be permissible, the Court ruled.

 

As a result, the Court ruled that a fresh arbitrator had to be appointed under the provisions of the Act. It set aside the decision of the High Court. Interestingly, instead of remanding the matter to the High Court for appointing a fresh arbitrator, the Court went ahead and appointed its own choice of an arbitrator (retired Justice Abhay Manohar Sapre). It did so because the dispute was pending for over 21 years.

Comment

The Court in Ellora Paper Mills[5] engaged on the limited legal question (for the first time) of whether an ineligibility, when it exists, applies to arbitration proceedings initiated before the 2015 amendment. Previous decisions, though sharing the commonality of a contract concluded before the 2015 amendment, were nevertheless in respect of arbitration proceedings commenced after the 2015 amendment. The implications of the judgment in Ellora Paper Mills[6] on arbitral proceedings before the 2015 amendment are worrisome and against business prudence.

(1) 2015 amendment given retrospective applicability without legal basis

Firstly, the Court said because the arbitration did not progress since 2000, the arbitration proceedings did not “technically” commence.[7] This finding, it may be argued, can be looked at differently since Ellora could have never obtained a stay on proceedings that did not commence at all. Therefore, the Court’s observation that the arbitration did not “technically” commence is contrary to the stay having been granted.

At any rate, the court seems to have relied on the nascent stage of the underlying arbitration to make the ineligibility in Section 12(5) read with the Seventh Schedule applicable to members of the Arbitral Tribunal, by virtue of their relationship with the State. While this ruling is correct in attempting to remedy the wrongs that the Fifth and Seventh Schedules to the Act aim to redress, it allows a subsequent judicial forum to halt arbitral proceedings at an advanced stage and appoint a new arbitrator if a party petitions to have the Tribunal’s mandate terminated retrospectively on applying the standards of the 2015. This would seriously hamper the efficacy of the previous proceedings and would require the whole dispute to be heard afresh. One way to distinguish this case is the Court ruled as it did since it found that the arbitral proceedings had not commenced and therefore that they are deemed to have been commenced after 2015. However, as described above, this finding is also open to other interpretations.

The Court’s reliance on previous decisions on Section 12(5) to arrive at its ruling deserves some inspection.

By way of background, the genesis of the legal discussion surrounding Section 12(5) is in two decisions of the Court in Voestalpine Schienen GmbH v. Delhi Metro Rail Corpn. Ltd.[8] and HRD Corpn. v. GAIL (India) Ltd.[9] In these cases, the Court characterised an arbitrator’s ineligibility in the Seventh Schedule as one which goes to the “root of the appointment”. This is because the arbitrator’s ineligibility is by operation of law, and renders her without any inherent jurisdiction to continue. In such cases, the Court ruled that a challenge to the arbitrator (or the Tribunal) is not needed. An aggrieved party needs to instead file an application under Section 14(2) of the Act, which deals with an application to a court for terminating an arbitrator’s mandate.

In TRF Ltd. v. Energo Engg. Projects Ltd.[10] (TRF) the Court considered whether the Managing Director of a party designated as an appointing authority, and subsequently rendered ineligible under Section 12(5) read with the Seventh Schedule could then nominate an arbitrator as his/her replacement. The Court invoked the maxim qui facit per alium facit per se (what one does through another is done by oneself), and ruled that the nomination of an arbitrator by an ineligible arbitrator would be tantamount to the ineligible arbitrator carrying on the arbitration herself. This was not allowed.

Subsequently, in Bharat Broadband Network Ltd. v. United Telecoms Ltd.,[11] (BBNL) the Court ruled that the decision in TRF[12] does not save appointments by ineligible managing directors even if such appointments were made before the judgment in TRF.[13] Both TRF[14] and BBNL[15] are decisions where the contract was concluded before the 2015 amendment but the dispute itself arose after the 2015 amendment.

At this juncture, it is noteworthy to mention that the proviso to Section 12(5) allows parties to waive an arbitrator’s ineligibility once the dispute arises “by an express agreement in writing”. Interpreting these words, the Court in BBNL[16] said the requirement under Section 12(5) is to have an express agreement in writing, which disallows implied agreements (or conduct) such as filing a statement of claim in the arbitration. In any case, the Court added, party autonomy in waiving the ineligibility under Section 12(5) by express agreement “is to be respected only in certain exceptional situations” such as family arbitrations or situations where the ineligible person commands blind faith by both parties to the dispute.

In Jaipur Zila Dugdh Utpadak Sahkari Sangh Ltd. v. Ajay Sales & Suppliers[17] the Court considered whether the chairman of one of the parties could act as a sole arbitrator in the dispute. The contract in this case was also before the 2015 amendment, but disputes arose after the 2015 amendment. Observing that since an arbitrator derives her power of appointment from the arbitration agreement, if the arbitration agreement itself becomes contrary to law, the Court said the ineligible arbitrator can no longer continue to act. In such cases, it would be appropriate for a party to approach a court and have a replacement arbitrator appointed.

On facts, the Court in Jaipur Zila Dugdh[18] ruled that a chairman would be ineligible under the Seventh Schedule since he (i) has a business relationship with one of the parties to the dispute; (ii) has a controlling influence over one of the parties; and (iii) represents or advises one of the parties or their affiliates.

 

In Ellora Paper Mills[19], the contract and arbitration were both before the 2015 amendment—a unique factual matrix not seen in TRF[20], BBNL[21], or Jaipur Zila Dugdh[22]. Yet the Court relied on these three decisions and extended the 2015 amendment to an arbitration proceeding commenced before the 2015 amendment. While it is true that an arbitrator becomes ineligible by virtue of the 2015 amendment, the question before the Court was whether that ineligibility would operate in the arbitration in question, commenced several years prior in time. The Court ruled that it did on the basis that the underlying arbitration never commenced because of the stay order. However, the Court did not engage any further on whether its ruling meant all pre-2015 amendment arbitrations would now expose themselves to the 2015 amendment.

The applicability of the 2015 amendment to arbitral proceedings, while the subject of some initial controversy, is now a settled question in view of the judgment in BCCI v. Kochi Cricket (P) Ltd.[23] where the Court ruled that the 2015 amendment applies prospectively to arbitral proceedings i.e. to arbitrations commencing after 23-10-2015, which is the date when the 2015 amendment came into effect. As for court proceedings relating to arbitration proceedings, the Court ruled that the 2015 amendment would apply to all court proceedings even if initiated before the 2015 amendment.

The Government sought to nullify this ruling through the Arbitration and Conciliation (Amendment) Act, 2019, which inserted a new Section 87 that provided that (unless the parties agreed otherwise) the 2015 amendments would apply prospectively to all arbitral and court proceedings commenced after 23-10-2015 and not otherwise. The Court struck this down as unconstitutional in Hindustan Construction Co. Ltd. v. Union of India.[24] As a result, the position in BCCI[25] is the law today.

Therefore, the judgment in Ellora Paper Mills[26] read in the context of these cases seems to be a deviation from the effect of the ruling in BCCI[27]. Both BCCI[28] and Ellora Paper Mills[29] were rendered by two-Judge Benches. Section 26 of the 2015 amendment is also designed to apply prospectively since it states, “Nothing contained in the (2015 amendment) shall apply to the arbitral proceedings commenced, in accordance with the provisions of Section 21 of (the Act) unless the parties otherwise agree….”

The only remaining issue on the retrospective applicability of the 2015 amendment to arbitral proceedings is when can parties said to have agreed to make the amendment applicable to their arbitration. Case law suggests that the standard of proof for such an agreement is high. For example, S.P. Singla Constructions (P) Ltd. v. State of H.P.[30] ruled that a contractual clause that said any statutory modifications or re-enactments to the Arbitration Act, 1940 shall also apply to the arbitration proceedings under that clause were itself not sufficient to make the 2015 amendment to Section 12(5) applicable to arbitral proceedings commenced in 2013. The Court in Ellora Paper Mills[31] did not consider that commencing an arbitration before the 2015 amendment was itself evidence that the parties did not intend to make the 2015 amendment apply to their arbitration.

(2) Amending existing arbitration agreements and powers of the court as an appellate forum

Nevertheless, Ellora Paper Mills[32] and the judgments it relies on has an important commercial implication. Arbitration agreements, particularly in government contracts, concluded before 2015 may still stipulate the appointment of an arbitrator in contravention of the Seventh Schedule.

Where a party believes it would not prefer to waive this disqualification in future, it must initiate negotiations to amend the arbitration clause and bring it in line with the Act. This would save a lot of legal costs and precious time after a dispute arises.

Section 14 of the Act inter alia says an arbitrator’s mandate terminates if he becomes de jure unable to perform his functions. The effect of case law on Section 12(5) read with the Seventh Schedule is an ineligible arbitrator becomes de jure unable to perform his functions, consequently seeing his mandate terminated. If the parties disagree on this fact that the mandate is terminated, they can apply to a court under Section 14 to receive a judicial decision on this point.

Another important aspect of Ellora Paper Mills[33] is the Court’s decision to appoint a replacement arbitrator itself, instead of remanding the case to the Madhya Pradesh High Court. The Court cites the sheer delay in proceedings as a ground for exercising its powers (presumably under Article 142 of the Indian Constitution) to appoint a replacement arbitrator.[34] This is a welcome move, as it shows the Court’s willingness to exercise its powers as an appellate forum to do justice.

(3) Impact of Ellora Paper Mills on government maintained panels of arbitrators

In Voestalpine Schienen GmbH v. Delhi Metro Rail Corpn. Ltd.[35] (DMRC case) the arbitration clause stipulated that the Delhi Metro Rail Corporation would forward names of five persons from a 31-member panel it maintains to the other party, which would then have to choose its nominee arbitrator from the shortlisted names. The other party challenged this procedure on grounds that the panel comprises of government employees who did not qualify as independent arbitrators.

The Court said the fact that one of the members of the panel was a government employee did not by itself make the person ineligible under Section 12(5), as such persons would possess the necessary technical background to decide the case. The true test was whether such a panel member could be treated as an employee or consultant or advisor of the Delhi Metro Rail Corporation specifically.

As a result, maintaining a panel of arbitrators is not disallowed under the scheme of Section 12(5) of the Act. Nevertheless, the Court in its judgment in the DMRC[36] observed that it is not appropriate for the other party to have been given only five names from a larger pool of 31 names. The Court also said the scope of the panel ought to be expanded, with even retired private sector technical persons as well as persons with a legal background brought under its ambit.

Government contracts today are likely to contain arbitration clauses that fall foul of the prohibition in Section 12(5) read with the Seventh Schedule. As a final takeaway, these clauses should be amended to address the rulings of the series of judgments culminating with Ellora Paper Mills[37] and to address the observations in the DMRC[38]. In particular, clauses that specify designations of government employees as arbitrators can no longer remain, unless those arbitrators are employees of a different government department. Equally, a panel of arbitrators maintained by a government department (or the Government itself) must be diverse, and should allow the opposite party scope to select from a wide pool of people.

Conclusion

The importance of choosing a technically qualified arbitrator can never be overstated. However, the law installs some protections to prevent a party, especially when it is a government entity, from breaching the rule against bias by appointing their own employee, consultant or advisor or anyone with a past business relationship as an arbitrator. While applying this welcome change in Indian law however, care should be taken such that its impact does not unsettle past arbitrations. Of course in this case, the Court was trying to correct a historical long and galvanise a slow moving arbitration – this however should not be read to mean that all pre-amendment arbitrations would now open themselves up to the rigours of the 2015 amendment standards on appointment. A fine balance in this regard has to be maintained to apply these changes even handedly.


† Partner at Cyril Amarchand Mangaldas.

†† Associate at Cyril Amarchand Mangaldas.

[1] 2022 SCC OnLine SC 8.

[2] 2022 SCC OnLine SC 8.

[3] (2018) 6 SCC 287.

[4] (2019) 15 SCC 682.

[5] 2022 SCC OnLine SC 8.

[6] 2022 SCC OnLine SC 8.

[7] 2022 SCC OnLine SC 8, Para 6

[8] (2017) 4 SCC 665.

[9] (2018) 12 SCC 471.

[10] (2017) 8 SCC 377.

[11] (2019) 5 SCC 755.

[12] (2017) 8 SCC 377.

[13] (2017) 8 SCC 377.

[14] (2017) 8 SCC 377.

[15] (2019) 5 SCC 755.

[16] (2019) 5 SCC 755.

[17] 2021 SCC OnLine SC 730.

[18] 2021 SCC OnLine SC 730.

[19] 2022 SCC OnLine SC 8.

[20] (2017) 8 SCC 377.

[21] (2019) 5 SCC 755.

[22] 2021 SCC OnLine SC 730.

[23] (2018) 6 SCC 287.

[24] (2020) 17 SCC 324 : 2019 SCC OnLine SC 1520.

[25] (2018) 6 SCC 287.

[26] 2022 SCC OnLine SC 8.

[27] (2018) 6 SCC 287.

[28] (2018) 6 SCC 287.

[29] 2022 SCC OnLine SC 8.

[30] (2019) 2 SCC 488.

[31] 2022 SCC OnLine SC 8.

[32] 2022 SCC OnLine SC 8.

[33] 2022 SCC OnLine SC 8.

[34] 2022 SCC OnLine SC 8, Para 11.

[35] (2017) 4 SCC 665.

[36] (2017) 4 SCC 665.

[37] 2022 SCC OnLine SC 8.

[38] (2017) 4 SCC 665.

Cyril Amarchand MangaldasExperts Corner


Introduction


Personal liberty and the rule of law find their rightful place under Articles 21 and 22 of the Constitution of India, which include measures against arbitrary and indefinite detention. Even with the option of an elaborate judicial procedure to deal with matters regarding grant of bail, the system is somehow unable to meet the parameters of an archetypal system, giving rise to the notion that the bail system is unpredictable[1].

 

Recently, the Bombay High Court in Sameer Narayanrao Paltewar v. State of Maharashtra[2] (Paltewar judgment) has reiterated the mandate of the law to protect accused persons against the “incalculable harm to the reputation and self-esteem of a person”[3] caused by an arrest.

 

A peculiar provision of law dealing with the grant of anticipatory bail under Section 438 of the Code of Criminal Procedure Code, 1973 (CrPC) allows the State to make an application requesting the presence of the accused applicant seeking anticipatory bail at the time of final hearing of the Anticipatory Bail Application (‘ABA’) and passing of final order by the relevant court. The same law also authorises the court to compel the presence of such accused if the court considers it “necessary in the interest of justice”. The obvious problem with this provision is that if the ABA is rejected, the police not only can locate, but may also arrest  the accused.

 

While interpreting the powers under Section 438(4) of the CrPC (as exercised by the Sessions Court), the Bombay High Court has now directed that while orders mandating physical presence at final hearing may be passed, the Sessions Court should also ensure that should the ABA be rejected at such final hearing, the applicant shall be protected against arrest for a stipulated period to allow him/her time to approach the High Court and re-agitate a request for anticipatory bail.

 


Backdrop


Prior to 1973, criminal procedure in India[4] did not envisage the concept of ‘anticipatory bail’/’bail apprehending arrest’. The Law Commission of India in its 41st Report on the CrPC first identified the necessity for provisions regarding grant of anticipatory bail as:

 

“[…] sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. […] Apart from false cases, where there are reasonable grounds […], there seems no justification to require [an accused person] first to submit to custody, remain in prison for some days and then apply for bail.”[5]

 

The initial idea of providing for anticipatory bail was to avoid the situation where a person needed to obtain a bail after being arrested, even while reasonable grounds existed for the same prior to arrest. In 1973, Sections 436, 437 and 439 of the CrPC dealing with the grant of bail were streamlined and the new provision of Section 438 of the CrPC for anticipatory bail was introduced.

 

It is only through judicial interpretation that the law in relation to anticipatory bail (and bail in general) was thereafter developed to align itself with the constitutional objectives of protecting personal liberty and to strike a fine equilibrium between the “freedom of person” and “interest of social order”.

 

While Section 438 of the CrPC originally read to allow the High Court or Sessions Court to grant anticipatory bail at their discretion, it intentionally did not prescribe standards or thresholds for the same. The law on anticipatory bail has since been modified to provide for various aspects, with the State of Maharashtra amending the CrPC (as it applies to Maharashtra) in 1993 to include sub-section (4) to Section 438, which states as follows:

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the court, if on an application made to it by the Public Prosecutor, the court considers such presence necessary in the interest of justice.

 

For the rest of India, Section 438 of the CrPC has since been amended[6] to include sub-section (1-B) which incorporates the identical language as above.

 


Paltewar judgment – Brief overview


The case arises out of a dispute between the applicant and the original complainant, who were directors of a company operating a hospital. The original complainant filed a complaint against the applicant for offences punishable under Sections 406, 409, 420, 465, 467, 468 and 471 of the Penal Code, 1860 (IPC) and Section 66-C of the Information Technology Act, 2000.

 

During the investigation into such complaint, the applicant had filed an ABA before the Sessions Court, Nagpur. In such an ABA, the Public Prosecutor moved an application seeking presence of the applicant in the Sessions Court at the time of final hearing of the anticipatory bail application and the same was allowed.

 

Aggrieved by the order of the Sessions Court in granting the request of the prosecution and compelling his personal presence at the final hearing, the applicant accused filed an application under Section 482 of the CrPC before the Bombay High Court invoking its inherent jurisdiction.

 

The main issue that arose for determination before the Bombay High Court was in relation to the fate of an accused in the State of Maharashtra who is directed to remain present in the Sessions Court pursuant to a direction under Section 438(4) of the CrPC (as it applies to Maharashtra), and the consequences that may arise if such application for anticipatory bail is rejected.

 


Interim protection


While the applicant had been granted interim protection under Section 438(1) of the CrPC by the Sessions Court, the Bombay High Court further granted interim protection stating that if the ABA before the Sessions Court is rejected during the pendency of the High Court proceedings, then the interim protection granted against arrest would extend for a further period of 72 hours to allow the applicant to approach the High Court.

 

However, while such interim order effectively protected the applicant, the Bombay High Court proceeded with the hearing in the matter as a substantial question of law was involved.

 

In its analysis of Section 438(4) of the CrPC (as applicable in Maharashtra), at the outset, the Bombay High Court reiterated that an order directing an accused person to appear at the final hearing can be passed only when interim protection is already operating in favour of an accused[7].

 

The Paltewar[8] judgment recorded that in case the applicant is not granted interim protection in an ABA and the Sessions Court still directs him/her to remain present in the court on the date fixed for final hearing, by virtue of proviso to sub-section (1), it is open for the investigating officer to effect arrest of the applicant. The direction under sub-section (4), if considered as an independent and irrespective of interim protection, will prove to be a mouse trap and not a protection of personal liberty of the citizen. Being under the directions of the court, the applicant would be obliged to proceed towards the court while the investigating officer can wait at the entrance gate of the court premises.[9]

 


Analysis on Section 438(4) of the CrPC


At the outset, the Bombay High Court has clarified that Section 438(4) of the CrPC has already passed constitutional muster inter alia in Vijaya Ramesh Ramdasi v. State of Maharashtra[10] and Goyappa Jalagiri v. State of Maharashtra[11]. While dealing with the same, however, the Bombay High Court clearly observed that applications seeking personal presence of an accused cannot be moved callously by the prosecution neither can it be routinely allowed by the Sessions Court. It was further observed that a direction under Section 438(4) of the CrPC can be issued seeking the presence of the accused before the court at the stage of final hearing of the application but only if the accused’s interim order of protection from arrest was in operation.

 

Understanding the lacunae from the point of view of an accused, the Bombay High Court relied on State of Maharashtra v. Kachrusingh Santaramsingh Rajput[12] and catena of other Supreme Court judgments to state that the very purpose of introducing Section 438 in the CrPC, and the new form in which it was brought into force in the State of Maharashtra, was to strike a balance between the interest of the State to investigate through police into offences according to established procedure of law and the individual liberties of a person accused of serious crimes.[13]

 

In the Paltewar[14] judgment, the Bombay High Court also observed that when the Sessions Court allows an application that seeks the presence of the accused, it should provide sufficient reasons for allowing the same. The Sessions Court’s reasons must elaborate why the presence of the accused was important in the “interest of justice”, for example, specifying if there was possibility of absconding by the accused, etc.

 

The court further threw light on the expression “in the interest of justice” by stating that it has to be construed in the interest of both the prosecution as well as the accused and the court is obliged to strike a balance between the interests of the two. As the same was not done in the Paltewar[15] judgment, the Bombay High Court had quashed and set aside the order allowing the applicant’s presence.

 


Right to approach the High Court


It is well settled now that both the High Court and the Sessions Court have concurrent jurisdiction to deal with ABAs for directions under Section 438 of the CrPC and it is open to a person to move either of these two courts. It is, however, a generally accepted practice, as recorded in the Paltewar[16] judgment, to approach first the Sessions Court and thereafter the High Court for such relief.

 

Where a person chooses to move the Sessions Court in the first instance, a revision will lie in the High Court against the order of the Sessions Court on the application for issue of directions under Section 438 of the CrPC.

 

It is in light of this statutory intention, that the Bombay High Court stated that in the absence of any interim order of protection operating in favour of the accused during pendency of the application for anticipatory bail before the Sessions Court, the right available to the accused to move the High Court will stand frustrated if he/she is arrested and such arrest will obviously be facilitated by the direction of the Sessions Court under Section 438(4) of the CrPC[17]

 

In light of the above, even though the order under Section 438(4) of the CrPC (as applicable in Maharashtra) in the Paltewar[18] judgment was set aside, the Bombay High Court put down the following guidelines for Sessions Courts to follow when passing such orders:

 

(a) While filing the application under Section 438(4) of the CrPC (Maharashtra Amendment), the prosecutor has to state cogent reasons while seeking the obligatory presence of the accused before the Sessions Court at the time of final hearing of the ABA.

(b) The Sessions Court shall consider the application by the prosecutor and pass a reasoned order as to why the presence of the accused is necessary “in the interest of justice” at the time of final hearing of an ABA.

(c) If the Sessions Court rejects the application, it shall mandatorily extend the interim protection operating in favour of the accused for a minimum period of three (3) working days on the same conditions on which interim protection was granted during pendency of an ABA or on such further conditions as the Sessions Court may deem fit, in the interest of justice.

(d) If the Sessions Court considers it appropriate to grant extension of protection for more than three (3) working days, it shall record the reasons for the same, but in any event, it should not be more than seven (7) days.

(e) The accused should abide by the conditions imposed by the Sessions Court while granting extension of interim protection, failing which such interim protection shall cease to operate instantly.

 


Conclusion


The Paltewar[19] judgment expands on a very important point under the jurisprudence in relation to bails, specifically anticipatory bails. It is seen in a lot of cases that the accused, who is facing a potential arrest, is not provided with a protective order for a reasonable period of time when the presence under Section 438(4) of the CrPC is sought by the Sessions Court. With freedom jeopardised, the accused is pushed closer to a probable arrest.

 

The Paltewar[20] judgment has now made it mandatory to protect the applicant against any untoward impact of such requirement to be personally present, which would give a lot of security to the public at large.

 


† Partner, Cyril Amarchand Mangaldas.

†† Principal Associate, Cyril Amarchand Mangaldas.

††† Associate, Cyril Amarchand Mangaldas.

[1] Government of India, Law Commission of India, Report No. 268 Amendments to Criminal Procedure Code, 1973 Provisions Relating Bail, 23-5-2017.

[2] 2021 SCC OnLine Bom 2192.

[3] Joginder Kumar v. State of U.P., (1994) 4 SCC 260.

[4] Under the Code of Criminal Procedure, 1898.

[5] Government of India, Law Commission of India, 41st Report, The Code of Criminal Procedure, 1898 – Volume I, dated 24-9-1969 at Para 39.9.

[6] Code of Criminal Procedure (Amendment) Act, 2005, S. 38, with effect from 23-6-2006.

[7] Vijaya Ramesh Ramdasi v. State of Maharashtra, Bombay High Court, Criminal Application No. 569 of 2001,

decided on 20-3-2001 .

[8] 2021 SCC OnLine Bom 2192.

[9] 2021 SCC OnLine Bom 2192.

[10] Criminal Application No. 569 of 2001.

[11] Criminal Application No. 4370 of 2004.

[12] 1994 SCC OnLine Bom 73 : (1994) 3 Bom CR 348.

[13] 2021 SCC OnLine Bom 2192, para 17.

[14] 2021 SCC OnLine Bom 2192.

[15] 2021 SCC OnLine Bom 2192.

[16] 2021 SCC OnLine Bom 2192.

[17] 2021 SCC OnLine Bom 2192, para 26.

[18] 2021 SCC OnLine Bom 2192.

[19] 2021 SCC OnLine Bom 2192.

[20] 2021 SCC OnLine Bom 2192.

Cyril Amarchand MangaldasExperts Corner

It is no secret that the infrastructure market has grown exponentially in India[1] and as EOTs, delays and cost overruns occur, so do disputes. We examine in this piece some recent, interesting judgments in construction of arbitration law and comment on some emerging trends.

 

Pre-arbitral Section 9 – Mumbai International Airport Ltd. v. Airports Authority of India[2]

 

The Mumbai International Airport Limited (MIAL) and Airports Authority of India (AAI) executed an operation, management and development agreement (OMDA) on 4-4-2016. Under the OMDA, the AAI leased certain areas MIAL including the Chhatrapati Shivaji Maharaj International Airport (CSI) to operate, maintain, develop, upgrade the CSI, etc. and to keep it in good operating condition. Further, under the OMDA, MIAL was required to pay an annual fee payable in twelve equal monthly instalments to AAI. Pursuant to Covid-19 and consequent restrictions, MIAL invoked the force majeure clause under the OMDA and informed AAI that it was suspending its obligation towards the payment of monthly fee, and that it had instructed the State Bank of India as the Escrow Bank, not to transfer any amount towards monthly payment of annual fee or any other payment to AAI, commencing April 2020.

 

Accordingly, in light of closure and stoppage of several flights, MIAL requested AAI to write to the Escrow Bank, directing it not to transfer any amount towards monthly payment or any other payment to AAI, and to transfer the funds lying in the account in which the annual fee is deposited every month, so that the said funds could be utilised by MIAL to meet its immediate requirements. AAI agreed to make this concession but for a limited period only on account of force majeure as under the OMDA, the party affected by such event was entitled to suspend its performance. However, MIAL argued that AAI ought not to accept this arrangement just for a limited period but should continue it for the entire time period during which the force majeure event continued which AAI refused to do and argued instead that despite the force majeure event, MIAL was capable of performance under OMDA. Aggrieved by this position of AAI, MIAL approached the Court under Section 9 of the Arbitration and Conciliation Act, 1996 (Arbitration Act) seeking an order to inter alia restrain AAI and Escrow Bank from appropriating any receivables towards AAI’s annual fees. The Court decided in favour of MIAL rejecting the contentions of AAI stating that the OMDA provides for suspension of performance in case of a force majeure event. The Court also permitted MIAL to utilise the deposited receivables for expenses in connection with its obligations under the OMDA.

 

Importantly, the Court also provided specific timelines within which the parties had to appoint the arbitrators. The Court noted that the “Under(sic) Section 9, court is concerned more with the necessity to preserve the status quo, so as to facilitate the arbitral process, to be initiated by the parties.” For this reason, the Court added that it was also “open to Section 9 court to, while passing pre-arbitral interim measures of protection under Section 9, condition such grant by requiring the parties benefiting therefrom, to institute arbitral proceedings within a specified timeframe”.

 

This, of course, we note is a measure also inbuilt within the language of the provision after the 2015 amendments to the Act where if the arbitration is not commenced within 90 days of interim relief under Section 9, the same stands vacated. This decision preserved the subject-matter of the dispute whilst letting business go on as usual in the interim, permitting MIAL to utilise amounts in the account in the meanwhile. This case is a good example of an order in aid of the actual project while disputes sort themselves out.

 

Post award Section 9 and order therein appealable? – SEPCO Electric Power Construction Corpn. v. Power Mech Projects Ltd.[3]

 

SEPCO Electric Power Construction Corporation (SEPCO), a Chinese entity was awarded various coal-based power projects in India. In one of its projects, subsequent to the execution of works, a dispute arose between SEPCO and one of its sub-contractors, Power Mech Projects Limited (Power Mech). The dispute was referred to arbitration and an award was made in favour of Power Mech and Power Mech filed an application under Section 9 of the Arbitration Act seeking the Court’s direction to secure the award amount. The Court in its order dated 12-2-2019 directed SEPCO to furnish a bank guarantee within six weeks and “further, the bank guarantee in the sum of Rs 30 crores will be that of a scheduled bank located in India”. Thereafter, a bank guarantee of Industrial and Commercial Bank of China Limited (ICBC) for a sum of INR 30 crores was produced by SEPCO. Power Mech filed an interim application seeking a bank guarantee of a “Scheduled Indian Bank” rather than ICBC as per the order of the Court and thereafter, SEPCO filed another interim application seeking acceptance of the ICBC bank guarantee, which was refused. Against this refusal order, SEPCO filed an appeal under Section 37 of the Arbitration Act.

 

While deciding on the maintainability of the appeal, the Court held that the order of the Court which was appealed, was an order granting interim relief under Section 9 of the Arbitration Act, directing SEPCO to furnish a bank guarantee (BG)  issued by a Scheduled Indian Bank. It was clarified that though SEPCO is not aggrieved from the direction of furnishing a bank guarantee, but it is aggrieved from the direction, that the bank guarantee be of a Scheduled Indian Bank only. The Court concluding on the maintainability of the appeal held that the said direction “would be covered within the meaning of an order granting ‘any’ measure under Section 9, within the meaning of Section 37(1)(b) of the Arbitration Act and within the meaning of ‘judgment or order’ of a Commercial Division of a High Court within the meaning of Section 13(1-A) of the Commercial Courts Act”. The Court therefore held that although the order is not final, it is nevertheless an order under Section 9. This is yet another decision which expanded the scope of what is treated as a Section 9 order and thereby the nature of a Section 9 direction order that would be appealable.

 

Would this be a beneficial reading of the provision? Some would argue that this leads to added proceedings and appeals from orders passed within a Section 9 petition that do not completely dispose it off.

 

Section 9 as final relief? National Highways Authority of India v. Bhubaneswar Expressway (P) Ltd.[4]

 

Bhubaneswar Expressway Private Limited (BEPL) had filed a Section 9 application against National Highways Authority of India (NHAI) and the Court through order dated 25-112019 directed NHAI to, subject to BEPL furnishing an unconditional and irrevocable bank guarantee in favour of NHAI and further subject to final award of the Arbitral Tribunal, deposit in an escrow account, a sum of Rs 337,73,19,434.10, found due from NHAI to BEPL towards termination payment under the concession agreement between NHAI and BEPL. This order was appealed before the Delhi High Court in this case. The question before the Court was whether Section 9 of the Arbitration Act empowers the Court to grant to an applicant, a relief, in the nature of a final relief, even if a case for urgent need thereof is made out and merely by expressing the same to have been granted on a prima facie view subject to other conditions.

 

BEPL argued that the Court can grant such relief under Section 9(1)(ii)(e) which provides that a court can grant “such other interim measure of protection as may appear to the Court to be just and convenient”. The Court rejected this argument and set aside the order dated 25-11-2019 stating that the power under Section 9(1)(ii)(e) is “not only circumscribed by the language of clause (ii) of Section 9 using the expression ‘interim measure’ but reiterates the said expression in clause (e) and further uses the word ‘protection’, again indicating that it is de hors final adjudication and at best on a prima facie view of the matter”. The Court therefore held that a court could not assume the power of adjudication which the parties had vested in the Tribunal, in the garb of the said clause (e).

 

This decision leaves a number of questions. Typically, Section 9 jurisdiction is used to secure the amount in the dispute so as to prevent a paper award. This is quite the ordinary nature of security relief, subject of course to the standard conditions of prima facie case, balance of convenience, irreparable injury and dissipation of assets to defeat the award being made out. The Court had even safeguarded the deposited amount by way of the direction of the unconditional and irrevocable bank guarantee thereby safeguarding the interest of the depositor as well. In other words, what other order of security would not be in the nature of a final relief as per the Court’s formulation? This case therefore raises a number of questions and how the dispute ultimately pans out remains to be seen.

 

Section 34 on overheads and loss of profits issues – Delhi Metro Rail Corpn. Ltd. v. N.S. Publicity (I) (P) Ltd.[5]

 

Delhi Metro Rail Corporation Limited (DMRC) and N.S. Publicity (I) Private Limited (NSP) executed a licence agreement on 20-5-2013 for outdoor advertising rights on the civil structures of underground section between different metro stations. Some disputes arose between the parties that were referred to arbitration. The Tribunal allowed a few claims of NSP which was the claimant in the arbitration and also allowed a few counterclaims filed by DMRC. Both NSP and DMRC challenged the award.

 

One of the claims of NSP was for loss of profits that NSP would have earned, had it not been denied access to the sites. Accordingly, NSP had claimed gross profit margin of 21.5%. However, the Tribunal did not accept the same and held that profit margin would be computed on the basis of NSP’s balance sheet for the year 2008-2009 on the turnover of INR 11,18,05,375. The Tribunal also denied NSP’s claim for overheads and held that the loss on account of overheads as claimed by NSP, were absorbed in its claim of loss of profits.

 

While discussing these issues, the Delhi High Court observed that the gross profit of 21.5% suggested by NSP was not seriously contested but nonetheless the Tribunal had concluded that NSP had failed to establish the same. After observing the same, the Court set aside the award stating that the Tribunal could “proceed to reject the claim or allow it to the extent that it considered reasonable. But it could not direct that it be calculated on the basis of accounts for the year 2008-2009, which were neither produced nor relied upon by parties”.

 

Further, on the overlap between the loss of profits and overheads claim, the Court noted that NSP’s claim for net profit is based on what it would have earned, had DMRC performed its obligations. It was further noted that on the other hand, “NSP’s claim for loss of overheads was in the nature of reimbursement of costs that it had incurred on overheads, which were allocated towards the contract in question. NSP’s claim that the said costs would have been met by the revenue earned from the sale of advertisement sites, had DMRC provided the same.” Thus, the Court concluded that “the claim of overheads was over and above the claim for loss of profits and the decision of the Arbitral Tribunal that such overheads had been absorbed in profits is patently erroneous” and set aside the award in this regard.

 

Questions of loss of profit and overheads routinely arise in construction arbitrations. This being a common question, the decision is a helpful guide for arbitrators to closely examine the nature of claims and most importantly, their characterisation before determining issues regarding overlap.

 

Time limit to file a Section 34 application – DDA v. Varindera Construction Ltd.[6]

 

The Delhi Development Authority (DDA) filed a petition under Section 34 against Varindera Construction Limited (VCL) to set aside an award dated 2-11-2019. The setting aside petition was filed on 28-1-2020. It was refiled on 27-2-2020, and then again on 29-2-2020 and finally on 2-3-2020. On 2-3-2020, the petition was accompanied by an application seeking condonation of delay in refiling. Later, another application was filed seeking condonation of delay in filing of the petition.

 

Under Section 34(3) of the Arbitration Act, the time limit to file a set aside petition is three months from the date on which the party making that application had received the arbitral award and an additional period of thirty days if sufficient cause was shown. VCL argued that there was an abuse of process by DDA as the time period of filing the petition was ending, DDA filed the petition on 28-1-2020 with various defects and changed it altogether when it was refiled on 27-2-2020 (which is after the three months’ period). Further, it was argued that the two applications for condonation of delay are entirely different and are not genuine. This was based on the argument that while one cited voluminous record, time taken to remove the defects and the associate of the counsel concerned leaving his office, the other cited health reasons of the counsel.

 

The Delhi High Court rejected the arguments of VCL and held that even if it were to assume that the original filing was non est, the filing on 27-2-2020/29-2-2020 was complete in all respects and within the time period of three months and thirty days. Further, it was noted that the filing was accompanied with an application to condone the delay, as per the procedure. On the question of whether there was indeed a sufficient cause or not, the Court held that the health reason of the counsel was a “good reason” to condone the delay. Interestingly, in response to the argument of VCL that the counsel was appearing before other Benches during that time and was not sick, the Court noted that “the Court cannot see any dilatory tactics, want of bona fides, and deliberate negligence on the part of the petitioner”.

 

The Bar is rife with reasons for adjournment and sometimes these reasons make it to condonation applications leading to contentious arguments. This case is one such example. The Court adopted a common sense approach so that merits did not remain unconsidered on grounds of delay.

 

Section 34 pertaining to compensation awarded in absence of losses – Telecommunication Consultants India Ltd. v. MBL Infrastructure Ltd.[7]

 

Haryana State Roads and Bridges Development Corporation Ltd. (HSRDC) issued a letter of acceptance dated 21-8-2008 to Telecommunication Consultants India Limited (TCIL) in response to a bid submitted by TCIL for construction of certain houses. Further, TCIL approached MBL Infrastructure Limited (MBL) to execute the said project as a sub-contractor and on 18-8-2008, MBL agreed to the terms and conditions. MBL furnished a performance security in the form of a bank guarantee and an invoice payment bank guarantee in favour of TCIL. Subsequent to completion of works by MBL, TCIL instead of releasing the bank guarantees encashed the same. Against this, MBL filed a Section 9 petition and secured a stay order preventing TCIL from encashing the demand draft provided by the bank to TCIL for encashment of the bank guarantees.

 

The disputes between the parties were referred to the Tribunal and MBL had premised the said claim on the basis that it had been granted non-fund based limits[8] [bank guarantee/letter of credits (LCs), etc.] to the extent of INR 465 crores and as a result of invocation of the bank guarantees by TCIL, the bank had increased the commission charges resulting in an additional cost. MBL also claimed that there was an additional cash outflow of ₹23.5 crores on account of the banks demanding cash margin for the non-fund based limits of bank guarantees/LCs of INR 465 crores granted to MBL. After considering all the facts, the Tribunal found that there was no material on record to show that MBL had availed of the bank guarantee limits to the extent of INR 465 crores and in fact, MBL had utilised the limits only to the extent of INR 90 crores. Despite these findings on facts, the Tribunal still went ahead and awarded a fair compensation of INR 10,00,000.

 

In this regard, the Delhi High Court held the said award is unsustainable. This is because after the Tribunal had examined MBL’s contention and had found that MBL had not substantiated its claims for the losses allegedly incurred by it, it could not proceed to award any amount as fair compensation for the wrongful invocation of the bank guarantees. The Court therefore held that there is no evidence on record to establish the measure of damages and set aside the award to the extent of this claim of INR 10,00,000.

 

This is an interesting case where the Court has gone into the merits of the award rendered by the Tribunal and found that upon the Tribunal finding that losses were not incurred, it could not then go on to order any compensation. Ordinarily, in a Section 34 jurisdiction, the Court does not interfere with merits of the dispute but chose to make an exception in this case.

 

Unreasoned award scope of challenge – Hindustan Petroleum Corpn. Ltd. v. Banu Constructions.[9]

Hindustan Petroleum Corporation Limited (HPCL) filed a petition under Section 37 against Banu Constructions and the sole arbitrator (which was later removed as a respondent) to set aside an order dated 3-8-2020 which dismissed a Section 34 petition against an award. HPCL moved a Section 37 application on the basis that the award was unreasoned. After a perusal of the award, the Madras High Court observed that the award summarised the pleadings and directly allowed/disallowed the claim without assigning any reason. Further, that there was “nothing in the award to suggest how the quantum of the claim was arrived at except that the quantum awarded matched the amount claimed”. Therefore, the Court allowed Section 37 application and the award was set aside. The Court held that “while it is not necessary for an arbitral award to justify every penny awarded to the claimant, the broad premise on which the quantum is founded has to be discernible from award itself for the award to be meaningful or even intelligible in legal terms”.

 

The observation of the Court in relation to amounts awarded is extremely relevant for a construction dispute – as it may not be possible for the arbitrator to account for every penny in such disputes, but the arbitrator(s) must outline the reasons for the amount awarded. After having been through the rigours of evidence and several hearings, parties need to know why their claims were allowed or rejected. While it is true that the Court cannot go behind reasons of the award, such reasons ought to exist (unless the parties agree otherwise).

 

It is interesting how arbitration and attendant court proceedings have come to the aid of construction disputes at various stages. Courts have risen to every challenge in recent times, to adopt a common sense, often commercially-driven approach with an underlying “business as usual” approach. In a country like India where several projects are often stalled due to a myriad variety of reasons, it is often left to the judiciary to find novel solutions so that roads and dams get built, contractors get paid and the public at large, does not suffer. This last is at the heart of many of its decisions.


† Partner at Cyril Amarchand Mangaldas.

†† Associate at Cyril Amarchand Mangaldas.

[1]Shashank Agarwal, “Indian Infrastructure Endures to Move on a Growing Trail”, Financial Express, 23-6-2021, available at <HERE>.

[2] (2021) 278 DLT 75.

[3] FAO(OS) (COMM) No. 136 of 2019, judgment dated 27-11-2020 (Del).

[4] 2021 SCC OnLine Del 2421.

[5] 2021 SCC OnLine Del 2639.

[6] 2021 SCC OnLine Del 2845.

[7] 2021 SCC OnLine Del 3187.

[8] The non-fund based facilities provided by the bank mean that there is no physical outflow of funds but the bank provides an assurance in favour of a third party to pay upon the occurrence of a given event.

[9] 2021 SCC OnLine Mad 724.