Form No. J(2)

WBCHCA0072792026

IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION

APPELLATE SIDE

CORAM: THE HON’BLE JUSTICE OM NARAYAN RAI

C.O. 577 OF 2026

WITH

CAN 1 OF 2026

AMR INDIA LIMITED …PETITIONER

-VERSUS-

PRATHYUSHA -AMR JOINT VENTURE & OTHERS …OPPOSITE PARTIES

Appearance:

For the Petitioner : Mr. Joydeep Kar, Sr. Adv.

Mr.Rohit Das, Adv.

Mr. Aditya Mondal, Adv.

Ms. Manavi Gupta, Adv.

For the Opposite Party No.1 : Mr. Ranjan Bachawat, Sr. Adv.,

Mr. Shourjyo Mukherjee, Adv.

Mr. Sourojit Dasgupta, Adv.

Mr. Vishwarup Acharyya, Adv.

For the Opposite Party No.2 : Ms. Iram Hassan, Adv.

Ms. Yukti Agarwal, Adv.

Reserved on : September 03, 2026

Judgment on : October 01, 2026

OM NARAYAN RAI, J.: -

1. This revisional application under Article 227 of the Constitution of India takes

exception to an order dated January 21, 2026 passed by the Learned Sole

Arbitrator at the 31

st Sitting of the arbitral reference between the opposite party no.

1 – i.e. ‘Prathyusha-AMR Joint Venture’ and the opposite party no. 2 whereby the

petitioner's application under Section 32(2) read with Section 19 of the Arbitration

and Conciliation Act, 1996

1 was dismissed with costs of Rs. 51,000/-. By the said

1

Hereafter ‘the 1996 Act’

C.O. 577 OF 2026

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application, the petitioner had sought for leave to intervene in the arbitra l

proceedings and withdraw the claims made on behalf of the JV and also prayed for

termination of the arbitral proceeding.

FACTUAL MATRIX:

2. Shorn of meticulous details, the facts relevant for adjudication of the present

application, as may be gathered from the material on record, are as follows:-

a. The National Highways Authority of India

2 had invited bids for executing the

work of “Four/Two Laning of Rimuli-Roxy-Rajamunda Section of NH 215 from

Km.210.900 to Km. 259.453 in the State of Orissa Section of NHDP-III”, on ‘Build

Operate and Transfer’ basis.

b. SREI Infrastructure Finance Limited and MBL participated in the biding-

process jointly on the basis of a joint bidding agreement and emerged

successful.

c. Thereafter, the opposite party no.2 was incorporated for executing the works.

The opposite party no.2 entered into an agreement called the ‘Concession

Agreement’ with the NHAI for executing the aforesaid works.

d. While only a part of the aforesaid work had been executed, the petitioner and

the opposite party no.3 (which is presently in liquidation) expressed their

interest to execute the balance part of the work as an EPC contractor, which

was agreed to by the opposite party no.3.

e. Accordingly, on or about July 26, 2013, the petitioner and the opposite party

no.3 (which is presently in liquidation) entered into a Joint Venture Agreement

and thereby constituted ‘Prathyusha-AMR Joint Venture’

3 –for executing the

balance part of the EPC work of the “Four/Two Laning of Rimuli-Roxy-Rjamunda

Section of NH 215 from Km.210.900 to Km. 259.453 in the Stet of Orissa Section

of NHDP-III”.

f. On July 30, 2013 the JV executed a power of attorney (POA-1) in favour of one

Mr. R. Ravisundar.

g. Upon constitution of the said JV, the opposite party no.2 entered into a

contract with the said JV for carrying out the said works.

h. While the JV was executing the works, NHAI closed the project and terminated

the Concession Agreement.

i. NHAI and the opposite party no.2 fought an arbitral battle where an award was

passed on March 31, 2019 in favour of the opposite party no.2. The same was

2

Hereafter ‘NHAI’

3

Hereafter ‘JV’

C.O. 577 OF 2026

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communicated by the opposite party no.2 to the opposite party no.1 on May 09,

2019.

j. Thereafter, the opposite party no.1 invoked the arbitration clause by issuing a

notice dated September 30, 2019. Subsequently, on an application filed by the

State Bank of India under Section 7 of the Insolvency and Bankruptcy Code,

2016

4 the opposite party no.3 was admitted into the corporate insolvency

resolution process

5 by the National Company Law Tribunal

6, Amravati Bench.

k. The CIRP failed and as such the NCLT ordered liquidation of the opposite party

no.3. The opposite party no.4 was appointed as the liquidator.

l. Thereafter the constituted attorney of the JV-Mr. R. Ravisundar executed a

power of attorney in favour of the liquidator thereby authorising the liquidator

to act on behalf of the JV.

m. Upon being appointed as the liquidator of the opposite party no. 3 who is the

major stake holder in the JV, the liquidator representing the JV, on the

strength of the power of attorney, filed an application under Section 11 of the

1996 Act before this Court praying for appointment of an Arbitrator to

adjudicate upon the disputes between the JV and the opposite party no. 2 .

Such application was allowed on September 27, 2023.

n. During arbitration, the petitioner filed an application seeking intervention and

praying inter alia for dismissal of the claims lodged by the JV. The said

application was dismissed by the arbitrator by the order impugned.

o. Feeling aggrieved thereby, the petitioner has approached this Court by way of

the present revisional application.

SUBMISSIONS ON BEH ALF OF THE PETITIONER:

3. A brief summary of the submissions made on behalf of the petitioner, is as follows:-

a. The impugned order is impeached on four principal grounds:-

i) The Arbitral Tribunal disclaimed jurisdiction over the question raised by the

petitioner but nevertheless decided that question on merits;

ii) The authority conferred by Power of Attorney -1

7 did not permit delegation of

the powers under Clauses 10 and 11, and the POA-1 was subsequently

revoked;

4

Hereafter the ‘IBC’

5

Hereafter ‘CIRP’

6

Hereafter ‘NCLT’

7

Hereafter ‘POA-1’

C.O. 577 OF 2026

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iii) Section 35(1)(d) and (k) of the Insolvency and Bankruptcy Code, 2016

authorises the liquidator to act for the corporate debtor and not for the JV or

the petitioner; and

iv) The petitioner was excluded from the arbitral proceedings despite being a

constituent of the JV and having no efficacious remedy under Section 34 of the

Arbitration Act.

b. The impugned order is vitiated on grounds that go well beyond a mere re-

appreciation of the merits, and squarely attract this Court's supervisory

jurisdiction under Article 227 of the Constitution of India.

c. The Tribunal expressly recorded that it had no jurisdiction to decide whether

the opposite party no. 3, invoked arbitration on behalf of the JV without the

petitioner's consent, treating the matter as a dispute between the two

constituents of the JV governed by Clause 20.3 of the Joint Venture Agreement.

d. The issue raised by the petitioner, however, is not a dispute between the

petitioner and the opposite party no. 3. It is whether the opposite party no. 4,

i.e. the liquidator of the opposite party no.3, has authority to represent the

petitioner and, consequently, the opposite party no. 1.

e. No arbitration agreement or privity of contract exists between the petitioner and

the opposite party no. 4. The authority of a person purporting to represent and

sign pleadings on behalf of a company, partnership, or joint venture must be

determined in the legal proceeding or arbitration in which that authority is

asserted.

f. More surprisingly, having held that the Learned Sole Arbitrator does not have

the jurisdiction to decide the issue, and having further noted that the same

issues had already been "dealt with" when raised by the opposite party no. 2

not the petitioner - in the opposite party no. 2's own application under Section

16 of the 1996 Act, a proceeding to which the petitioner was never a party the

Tribunal nonetheless proceeded, to decide that self-same issue on merits and

dismiss the petitioner's application with costs.

g. A Tribunal that disclaims jurisdiction over an issue cannot, in the same breath,

adjudicate and penalise a party on the merits of that issue, still less by

recycling findings from a proceeding the affected party never participated in.

h. The petitioner's case is that the opposite party no. 4, i.e. the NCLT-appointed

liquidator of the opposite party no. 3, never possessed valid authority to invoke

or continue the arbitration against the opposite party no. 2 on behalf of the

C.O. 577 OF 2026

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opposite party no. 1 without the petitioner's consent, the petitioner being the

JV's other and only solvent constituent.

i. The Section 21 Notice was issued on September 30, 2019 but was not pursued

by Mr. Ravisundar, and the arbitration remained abandoned until the

liquidator sought to revive it in December 2022, after the opposite party no.3

entered liquidation. The liquidator's asserted authority rested on Power of

Attorney-2

8, delegated by Mr. Ravisundar, although POA-1 did not authorise

delegation of the powers to represent the JV in legal proceedings or arbitration.

j. Clause 10 of the POA-1 authorised Mr. R. Ravisundar to represent the JV in

Court proceedings and arbitrations, sign pleadings, Vakalatnamas etc. and

appoint Advocates on behalf of the JV. Clause 9 of the said POA -1, which

comes before and above Clauses 10 and 11 of th e said POA-1, states as

follows:-

"9. To delegate the powers vested in him above to any person by execution of Power of

Attorney on behalf of the PRATHYUSHA-AMR(JV)."

k. Thus, under Clause 9 of POA-1, Mr. R. Ravisundar was authorised to delegate

only the powers vested in him "above", namely, the powers under Clauses 1 to

8. He was not authorised to delegate the powers "below" conferred by Clauses

10 and 11. Accordingly, the purported delegation under Clause 8 of POA-2, in

favour of the opposite party no. 4, Mr. K. Sivalingam, of the power to represent

the JV in legal proceedings and arbitration is illegal, contrary to the Contract

Act, 1872, void ab initio, and non-est in law.

l. Even assuming, without admitting, that the opposite party no. 4 had any

authority under POA-2, POA-1 was expressly revocable by notice. Upon the

petitioner's issuance of the Revocation Notice, the opposite party no. 4 could

claim no continuing authority to represent the petitioner or the JV under POA-

2, which, according to the petitioner, stood terminated under Section 210 read

with Section 201 of the Contract Act, 1872.

m. At Paragraph 9 of the impugned order, the Ld. Tribunal holds only that "there

is no inconsistency or conflict between the delegation of power under [Clause 8]

and Clause 9 of POA-1" and that Mr. Ravisundar "was authorised to delegate

the power without vested in him on the basis of POA-1" generally addressing

the petitioner's specific textual submission that Clause 9's reference to powers

"vested in him above" excludes Clauses 10 and 11, which follow rather than

precede it. Whether there is "inconsistency" between Clauses 8 and 9 is a

8

Hereafter ‘POA-2’

C.O. 577 OF 2026

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different question from whether Clause 9, properly construed, reaches Clauses

10-11 at all; the impugned order answers the former and never engages the

latter.

n. The Tribunal being faced with the insurmountable obstacle of the power to

represent the JV in legal proceedings being non-delegable under the POA-1 and

the POA-1 having now been expressly revoked by the Revocation Notice thus

also automatically terminating the POA-2, side-stepped the entire issue and

held that Mr. Sivalingam's authority to invoke and continue the arbitration on

the JV's behalf survives independently of POA-1/POA-2 by virtue of Section

35(1)(d) & (k) of the IBC. This reasoning is perverse and erroneous on the face

of the record as it conflates the opposite party no. 3 the "Corporate Debtor"

with the two-member JV as a whole.

o. Section 35(1)(d) & (k) of the IBC which is confined, by its own terms, to the

assets, properties, and legal proceedings of the "Corporate Debtor" (the opposite

party no. 3) cannot furnish the opposite party no. 4 liquidator with authority to

invoke and continue arbitration on behalf of the two-member JV as a whole,

where the petitioner, the JV's other constituent, is a distinct, solvent, non-

liquidated entity holding rights jointly with the opposite party no. 3 under the

EPC Contract.

p. Section 35(1)(d) of the IBC empowers the liquidator to take such measures to

protect and preserve the assets and properties of the corporate debtor as he

considers necessary. The alleged claims which are the subject matter of the

instant arbitration are not the assets and properties of the corporate debtor i.e.

the opposite party no.3, but the assets and properties of the JV, and the

opposite party no.3 is merely a constituent member thereof.

q. So far as Section 35(1)(k) of the IBC is concerned, it empowers the opposite

party no. 4, liquidator to institute or defend any suit, prosecution or other legal

proceedings, civil or criminal in the name of or on behalf of the corporate

debtor. The opposite party no. 1 is not the corporate debtor in the instant case.

r. The petitioner has not challenged the right of the opposite party no. 4, to

represent the opposite party no.3 as the duly appointed liquidator thereof.

However, merely because the opposite party no. 4 has the right to represent the

opposite party no. 3, does not mean that the opposite party no. 4 ipso facto has

the right to represent the opposite party no. 1 which is a consortium in which

the petitioner is also a constituent/member/partner.

C.O. 577 OF 2026

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s. The reasoning of the Tribunal, by an exercise in ejusdem generis and a

"trustee-beneficiary" construction of the words "on behalf of", that the

liquidator may invoke arbitration "in the name of the JV while the opposite

party no. 3, enjoys the "benefit" as "beneficiary" is contrary to the plain

ordinary meaning of Sections 35(1)(d) and (k) of the IBC and also contrary to

the express provisions of Clause 22 of the JV Agreement itself which disclaims

any fiduciary relationship between the parties.

t. The Tribunal failed to appreciate that being the lead partner did not entitle the

opposite party no.3, or any person claiming through it, individually to pursue

arbitration on behalf of the opposite party no. 1 or to represent the JV.

u. A judgment of the Hon’ble Bombay High Court in the case of Maharashtra

State Electricity Distribution Company L imited (MSEDCL) vs. Godrej and

Boyce Manufacturing Co mpany Limited

9, was relied on for the proposition

that a consortium agreement authorising the lead member, through its

authorised signatory, to represent the consortium before the employer does not

ipso facto authorise that member, even as lead member, separately to invoke

the arbitration agreement.

v. Further, under Section 19(2)(a) of the Partnership Act, in the absence of any

usage or custom of trade to the contrary, a partner's implied authority does not

extend to submitting a dispute relating to the firm's business to arbitration;

express authority of all partners is necessary. A decision of the Hon'ble Delhi

High Court in the case of Consulting Engineers Group Limited vs. National

Highways Authority of India (NHAI)

10 was cited to contend that where the

agreement is with a consortium, one consortium member cannot separately

invoke the arbitration agreement unless the agreement expresses a contrary

intention.

w. The express arrangement provided for amounts awarded on account of the

opposite party no. 1 in the arbitration between the opposite party no. 2 and

NHAI to be passed on to the JV on a back -to-back basis. No amount

attributable to the works undertaken by the opposite party no. 1 was awarded

in that arbitration. The petitioner therefore maintains that pursuing the claims

against the opposite party no. 2 would unnecessarily damage its future

business prospects by impairing the possibility of receiving contracts in other

projects of the opposite party no. 2, which is also a shareholder and investor in

9

2019 SCC OnLine Bom 3920

10

2022 SCC OnLine Del 3253

C.O. 577 OF 2026

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the petitioner. That position is rational, bona fide, and founded on commercial

prudence rather than mala fides or collusion. The pre-liquidation management

of the opposite party no. 3 accepted the same position, as shown by the fact

that, although Mr. R. Ravisundar caused the Section 21 Notice to be issued on

September 30, 2019, he neither acted upon it nor took steps to appoint an

Arbitrator and thereby abandoned the arbitration and the claims of the

opposite party no. 1 JV.

x. The Tribunal further failed to appreciate on the other hand, that the opposite

party no. 3 is in liquidation and the opposite party no. 4 liquidator's statutory

duty runs only to maximising the value of the opposite party no. 3's own

insolvency estate, not to safeguarding the JV's, or the petitioner's, long-term

commercial interests or its long-standing business relationship with the

opposite party no. 2 (in which the petitioner is itsel f an investor and

shareholder).

y. The petitioner and the pre-liquidation management of the opposite party no. 3

being the constituents of the opposite party no. 1 remain, the parties best

placed to judge whether pursuing this claim serves the JV's interest, and not

the opposite party no. 4, a liquidator appointed years later who has no personal

knowledge of the project or the works executed by the opposite party no. 1 but

is purporting to proceed merely on the basis of stray correspondence and

information as available from the opposite party no. 3's records. The impugned

order never engages with this fundamental divergence of commercial interest at

all.

z. Even assuming, without admitting, that the petitioner's prayer to withdraw the

claims and terminate the arbitral proceedings could not be considered at that

stage, the Tribunal ought at least to have allowed the first prayer and permitted

the petitioner to intervene, participate in the arbitral proceedings, and present

its case. In HLS Asia Limited vs. Geopetrol International Inc. & Others

11,

the Hon'ble Delhi High Court held that individual consortium members, though

not parties to the contract containing the arbitration clause, may be necessary

the arbitral proceedings because of the parties interrelationship among

consortium members.

aa. Andhra Pradesh Power Generation Corp oration Limited (APGENCO) vs.

Tecpro Systems Limited & Others

12, was cited to contend that the Hon'ble

11

2012 SCC OnLine Del 5833

12

2025 SCC OnLine SC 2851

C.O. 577 OF 2026

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Supreme Court had held that the legislative policy of minimal judicial

intervention at the Section 11 referral stage does not yield a uniform answer to

whether an individual consortium member may invoke arbitration. That

question depends on the principal contract, the consortium agreement, the

parties to those agreements, and the rights and obligations created by them. At

the referral stage under Section 11 of the Arbitration Act, the Court is confined

to a prima facie assessment of whether the consortium member qualifies as a

party to the arbitration agreement; the Arbitral Tribunal must thereafter

determine in detail whether the member is in fact a veritable party. The Hon'ble

Supreme Court further held that questions concerning individual invocation,

the continued existence of the consortium, the necessity of the other

consortium partners' consent, and the maintainability of claims after

liquidation may legitimately be raised, contested, and determined before the

Arbitral Tribunal. Accordingly, the Ld. Tribunal had jurisdiction to decide the

questions raised by the petitioner and ought to have conducted that enquiry in

the arbitration proceedings after affording the petitioner an opportunity to be

heard and file its pleadings, documents and evidence.

bb. Each of the foregoing infirmities in the Order concerns a jurisdictional error, a

impugned misapplication of statute, a violation of the principles of natural

justice, or a perversity apparent on the face of the record. These are not

invitations to re-appreciate evidence; they are errors of the kind that attract

this Hon'ble Court's supervisory jurisdiction under Article 227, including in

relation to orders passed during arbitral proceedings.

cc. In the circumstances, the petitioner prays that this Hon'ble Court may be

pleased to quash and set aside the impugned order dated January 21, 2026

passed by the Learned Sole Arbitrator and pass such further order or orders as

this Hon'ble Court may deem fit and proper.

SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES :

4. A brief summary of the submissions made on behalf of the opposite party no.1, is

as follows:-

a. The 1996 Act is a complete Code by itself. Kandla Export Corporation &

Another vs. OCI Corporation & Another

13 was cited in support of the said

proposition.

b. The said Act does not provide for any appeal from an order dismissing an

application under Section 16 thereof.

13

(2018) 14 SCC 715

C.O. 577 OF 2026

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c. Thus, the petitioner cannot challenge the Section 16 order in the garb of the

present revisional application. A remedy which is not provided under the

Complete Code cannot be invoked in an indirect manner.

d. In any event, the Civil Revisional Application cannot be entertained in view of

Sections 5 and 8 of the 1996 Act, which provides for minimum interference by

the Courts in arbitration.

e. The Court, exercising jurisdiction under Article 227 of the Constitution of India

ought not entertain any challenge to a Section 16 order passed by an Arbitral

Tribunal. In this context, reliance is placed on the following decisions:-

(i) Tarini Prasad Mohanty vs. Sunflag Iron and Steel Company Limited

14

(ii) Manash Kamal Bezboruah vs. Bokahola Tea Company Private Limited

& Others

15

f. This Court could have entertained the application under Article 227 of the

Constitution of India, if the order impugned suffered from patent lack of

inherent jurisdiction. However, the petitioner itself had filed the application

under Section 16 of the said Act before the Learned Arbitrator. In fact, the

petitioner prayed for dismissal of the Statement of Claim. Hence, the Learned

Arbitrator had the jurisdiction to decide the said application.

g. The Learned Arbitrator has passed a well -reasoned order. The Learned

Arbitrator has not ignored any of the contentions of the petitioner. Despite

holding that the petitioner is not a party, and hence, cannot raise any issue,

the Learned Arbitrator has proceeded to deal with each and every contention of

the petitioner. Therefore, even otherwise, the Learned Arbitrator's reasonings

and findings can also not be interfered by this Hon'ble Court.

h. Hence, no case of patent lack of inherent jurisdiction exists in the facts of the

present case. Therefore, the present application is not maintainable.

i. The petitioner had sought to contend that the opposite party no. 1 cannot

proceed with the arbitration or present any claim without the presence of the

petitioner, since the petitioner is a partner of the JV. In this context, the

petitioner has placed reliance on HLS Asia Limited (supra) and Consulting

Engineers Group Limited (supra).

j. However, the most important aspect that has been lost sight of by the

petitioner is that the arbitration clause was invoked by the JV itself, being the

opposite party no. 1. The said arbitration clause was not invoked by one

14

2026 SCC OnLine SC 973

15

2026 SCC OnLine SC 1330

C.O. 577 OF 2026

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partner of the JV. Similarly, the POA-2 which is the subject matter of challenge

by the petitioner, was also granted by the JV itself, and not by one partner of

the JV.

k. All the decisions relied upon by the petitioner deal with cases where one

partner, and majorly the non-lead partner of a Joint Venture or a Consortium

proceeded with arbitration without consent of the others. Hence, the said

decisions are not applicable.

l. In the present case, not only did the JV (i.e. opposite party no. 1) invoked the

arbitration clause, but also notified the same to the petitioner repeatedly. Since

2023, the petitioner was aware of the arbitral proceedings initiated by opposite

party no. 1 against opposite party no. 2, as evidenced by the communication

dated April 06, 2023

m. Even after appointment of the Learned Arbitrator, the same was notified to the

petitioner. No dispute was ever raised in any manner whatsoever.

n. The petitioner's prolonged and unexplained silence, despite repeated and

express knowledge of the relevant developments, is wholly inconsistent with its

present challenge. The chronology demonstrates that the objections now raised

are neither contemporaneous nor bona fide, but constitut e a belated and

strategic attempt to challenge proceedings to which the p etitioner had

acquiesced for years.

o. The petitioner, being a part of the Joint Venture cannot take a contrary stand

or a stance which is adverse to the interest of the Joint Venture itself. In the

event the Joint Venture succeeds in obtaining an award, the proceeds will have

to be distributed between the petitioner and the Opposite Party no. 3, which is

now in liquidation. Hence, the petitioner would stand to gain from the entire

reference.

p. Hence, the belated attempt to jeopardise the arbitral reference is nothing but

mala fide and a product of afterthought. The same cannot be permitted.

q. The real reason for applying for dismissal of claim by the petitioner is different.

The intention of the petitioner is to dismiss the arbitral reference, so that all

the money lying secured before the Hon'ble Delhi High Court can be enjoyed by

the opposite party no. 2.

r. The petitioner being a 22% promoter shareholder of the opposite party no. 2

intends to enjoy the entire money secured before the Hon'ble Delhi High Court.

Therefore, it wants dismissal of the claim. The said attempt cannot be

permitted, particularly at the expense of the Joint Venture.

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s. Furthermore, previously, the opposite party no. 2 had also filed a similar

Section 16 application, which was dismissed. No challenge to the said order

has been made. Previous attempts of the petitioner to join the arbitral reference

through the opposite party no. 2 was also disallowed by the Learned Arbitrator.

t. Hence, the petitioner's belated attempt to somehow getting the claim dismissed

cannot be entertained by this Hon'ble Court. The same was sensed by the

Learned Arbitrator, who has also delved and discussed about the issue of

collusion between the opposite party no. 2 and the petitioner.

u. In any event, shorn of all the factual disputes, the insolvency of the opposite

party no. 3 does not invalidate the Power of Attorney at all.

v. Pursuant to the initiation of the Corporate Insolvency Resolution Process, all

duties, powers, acts etc of the company has vested in the opposite party no. 3,

by virtue of Section 35(1)(k) of the Insolvency and Bankruptcy Code 2016.

Under the said provision, the opposite party no. 3 has the power to institute or

defend or continue with any proceedings for and on behalf of the company. In

any event, in the present case, the principal, being the JV, has not been

declared as an insolvent.

w. Furthermore, the powers of the principal have been exercised partly by the

opposite party no. 3 as well. Hence, under Section 204 of the Indian Contract

Act 1872, once the agent has exercised the powers partly, the said agency

cannot be revoked. Therefore, the petitioner's attempt to revoke the Power of

Attorney is not permissible in law.

x. The application under Article 227 of the Constitution of India, accordingly,

deserves to be dismissed with exemplary costs.

REJOINDER OF THE PETITIONER:

5. Mr. Das, learned Advocate appearing for the petitioner made the following rejoinder

submissions:-

a. The contention of the opposite party no. 4 that, since the same issues were

previously decided by the Tribunal in an order under Section 16 of the 1996

Act, therefore the petitioner should await the final Award and challenge it

under Section 34 of the 1996 Act, overlooks that the petitioner, having been

expressly debarred from participating in the arbitration at the 3

rd Sitting, was

neither a party to the opposite party no. 2's Section 16 application nor heard

before the order passed at the 7

th Sitting.

b. An application under Section 34 may be made only by a "party" within Section

2(1)(h) of the 1996 Act. Since the petitioner's application to intervene was

C.O. 577 OF 2026

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rejected, the petitioner would not receive a signed copy of the final award under

Section 31(5) of the said Act and would have no right to apply under Section 34

thereof. The petitioner therefore has no alternative or equally efficacious

remedy and must invoke this Hon'ble Court's jurisdiction under Article 227 of

the Constitution of India.

c. The effect of the impugned order is that an integral constituent of the opposite

party no. 1, and its only solvent member, would stand excluded entirely from

the arbitral proceedings. The opposite party no. 4 has further invoked Section

42A of the 1996 Act concerning confidentiality to deny the petitioner access to

information and pleadings relating to those proceedings. The combined effect is

that the petitioner remains bound to the consequences asserted on behalf of

the JV while being denied participation in, and access to, the very proceedings

said to produce those consequences.

ANALYSIS & DECISION:

6. Heard the learned Advocates appearing for the respective parties and considered

the material on record.

7. It need not be overemphasised that although the plenary constitutional supervisory

authority of the High Courts under Article 227 of the Constitution of India remain

uncurtailed by any legislation, the Hon’ble Supreme Court has time and again

cautioned that while dealing with cases pertaining to the 1996 Act, such

extraordinary power must be exercised only in exceptional cases where a patent

lack of inherent jurisdiction is manifest on the face of the record.

8. Manash Kamal Bezboruah (supra) appears to be the latest addition to the long

list of authoritative dicta by the Hon’ble Supreme Court that firm up the contours

of the supervisory jurisdiction under Article 227 of the Constitution of India in the

context of arbitral matters. In said case, the Hon’ble Supreme Court after taking

note of several judgments on the point, including Tarini Prasad Mohanty (supra),

made the following observations which deserve notice:-

“21. Having considered the rival submissions advanced by both sides and the material

available on record, the sole question that arises for our consideration in the present

appeals is whether the High Court was justified in passing the impugned order holding

that a revision petition under Article 227 of the Constitution of India is maintainable

against an order of the Arbitral Tribunal.

22. Before adverting to the legal positioning present case, it is imperative to outline the

statutory scheme and object of the Act. The Act is a Code in itself. This phrase is not

merely perfunctory, but has definite legal consequences. One such consequence is stated

under the non-obstante clause given in Section 5 of the Act, which limits the extent of

judicial intervention unless explicitly contemplated under the Act. This provision was

included to uphold the intention of the legislature to adopt the UNCITRAL Model Law and

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Rules to reduce excessive judicial interference. Further, Section 16 of the Act gives effect to

the doctrine of kompetenz-kompetenz, empowering the Arbitral Tribunal to rule on its own

jurisdiction. In the usual course of an arbitral proceeding, the Act provides for a mechanism

to challenge an Arbitral Award under Section 34 of the Act.

******************** ******************** ********************

25. Ordinarily, the power of the High Courts under Article 227 of the Constitution of

India to exercise supervisory jurisdiction over all courts and tribunals within their territorial

jurisdiction forms part of the basic structure of the Constitution and cannot be abrogated or

excluded by legislation. Consequently, although Section 5 of the Act restricts judicial

intervention, except as expressly provided under the Act, such restriction cannot curtail or

oust the constitutional jurisdiction of the High Courts under Article 227 of the Constitution

of India. At the same time, it is imperative to note that the Act was enacted with the

objective of ensuring the expeditious resolution of disputes through arbitration, with

minimal judicial interference and without the supervisory involvement of traditional courts,

except to the limited extent expressly contemplated under the Act.

26. The Constitution Bench in SBP & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618 :

(2005) 128 Comp Cas 465, stating that the Act mandates minimal judicial intervention, has

explicitly disapproved the approach of High Courts correcting orders of an Arbitral Tribunal

under Article 226 or 227 of the Constitution of India during the pendency of arbitral

proceedings. The relevant portion of the said judgment is extracted hereinbelow:

45. It is seen that some High Courts have proceeded on the basis that any order

passed by an Arbitral Tribunal during arbitration, would be capable of being challenged

under Article 226 or 227 of the Constitution. We see no warrant for such an approach.

Section 37 makes certain orders of the Arbitral Tribunal appealable. Under Section 34,

the aggrieved party has an avenue for ventilating its grievances against the award

including any in-between orders that might have been passed by the Arbitral Tribunal

acting under Section 16 of the Act. The party aggrieved by any order of the Arbitral

Tribunal, unless has a right of appeal under Section 37 of the Act, has to wait until the

award is passed by the Tribunal. This appears to be the scheme of the Act. The Arbitral

Tribunal is, after all, a creature of a contract between the parties, the arbitration

agreement, even though, if the occasion arises, the Chief Justice may constitute it based

on the contract between the parties. But that would not alter the status of the Arbitral

Tribunal. It will still be a forum chosen by the parties by agreement. We, therefore,

disapprove of the stand adopted by some of the High Courts that any order passed by

the Arbitral Tribunal is capable of being corrected by the High Court under Article 226 or

227 of the Constitution. Such an intervention by the High Courts is not permissible.

46. The object of minimising judicial intervention while the matter is in the process of

being arbitrated upon, will certainly be defeated if the High Court could be approached

under Article 227 or under Article 226 of the Constitution against every order made by

the Arbitral Tribunal. Therefore, it is necessary to indicate that once the arbitration has

commenced in the Arbitral Tribunal, parties have to wait until the award is pronounced

unless, of course, a right of appeal is available to them under Section 37 of the Act even

at an earlier stage.

27. Furthermore, this Court in the case of Deep Industries (supra), has held that the

High Court under article 227 can only deal with orders of the Tribunal wherein there is

patent lack of inherent jurisdiction. The relevant portion of the said judgment is extracted

hereinbelow:

“17. This being the case, there is no doubt whatsoever that if petitions were to be filed

under Articles 226/227 of the Constitution against orders passed in appeals under

C.O. 577 OF 2026

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Section 37, the entire arbitral process would be derailed and would not come to fruition

for many years. At the same time, we cannot forget that Article 227 is a constitutional

provision which remains untouched by the non obstante clause of Section 5 of the Act.

In these circumstances, what is important to note is that though petitions can be filed

under Article 227 against judgments allowing or dismissing first appeals under Section

37 of the Act, yet the High Court would be extremely circumspect in interfering with the

same, taking into account the statutory policy as adumbrated by us hereinabove so that

interference is restricted to orders that are passed which are patently lacking in

inherent jurisdiction.”

28. Subsequently, a three Judge Bench of this Court in the case of Punjab State Power

Corpn. Ltd. (supra) clarified as to what would be categorised as ‘Patent lack in inherent

jurisdiction’. The primary parameter is that the Order passed should be so perverse that

the only possible conclusion is that there is a patent lack in inherent jurisdiction. A patent

lack requires no argument whatsoever, it must be the perversity of the Order that must

stare one in the face. Further, while addressing the misuse of Article 227 of the

Constitution of India petitions in arbitral proceedings, this Court directed that High Courts,

upon considering the objections raised, should promptly dismiss petitions under Article

227 wherever no patent lack of inherent jurisdiction is made out. The relevant portion of

the said judgment is extracted hereinbelow:

“4. We are of the view that a foray to the writ court from a Section 16 application being

dismissed by the arbitrator can only be if the order passed is so perverse that the only

possible conclusion is that there is a patent lack in inherent jurisdiction. A patent lack of

inherent jurisdiction requires no argument whatsoever — it must be the perversity of the

order that must stare one in the face.

5. Unfortunately, the parties are using this expression which is in our judgment in Deep

Industries Ltd. [Deep Industries Ltd. v. ONGC, (2020) 15 SCC 706], to go to the Article

227 Court in matters which do not suffer from a patent lack of inherent jurisdiction. This

is one of them. Instead of dismissing the writ petition on the ground stated, the High

Court would have done well to have referred to our judgment in Deep Industries Ltd.

[Deep Industries Ltd. v. ONGC, (2020) 15 SCC 706] and dismiss the Article 227 petition

on the ground that there is no such perversity in the order which leads to a patent lack

of inherent jurisdiction. The High Court ought to have discouraged similar litigation by

imposing heavy costs. The High Court did not choose to do either of these two things.”

29. Recently, this Court in Tarini Prasad Mohanty (supra), has emphasized that while

exercising writ jurisdiction under Articles 226 and 227 of the Constitution of India, courts

must strictly keep in mind the statutory scheme of the Arbitration Act. Specifically, since

the Act already provides for a final statutory remedy under Section 34 and clearly

mandates minimal judicial interference while arbitral proceedings are still ongoing, courts

must respect this legislative intent and limit their intervention accordingly.

“22. Besides the well settled parameters to be borne in mind while exercising

jurisdiction under Articles 226 and 227 of the Constitution, it is also necessary to be

mindful of the statutory scheme of the concerned enactment from which the impugned

order arises. If the enactment besides providing for a statutory remedy [herein, Section

34] also expects minimal judicial interference prior to the culmination of the arbitral

proceedings [herein, Section 5], the said factor would be of relevance while considering

the exercise of jurisdiction. In other words the threshold to be satisfied before exercising

discretion under Articles 226 and 227 of the Constitution in the light of such legislative

intent would be higher. As held in Re: Interplay (supra), the non-obstante clause in

Section 5 of the A and C Act must take precedence over any other law for the time being

in force. It would have to be demonstrated that notwithstanding the availability of an

C.O. 577 OF 2026

Page 16 of 26

alternate remedy at the conclusion of the proceedings, such challenge cannot await the

final adjudication of the proceedings and despite the Civil Appeal arising out of SLP (C)

No. 27534 of 2025 Page 33 of 39 statutory expectation of minimal interference,

intervention in exercise of writ jurisdiction at an interim stage is imperative. We may

clarify that our observations are as regards the ‘entertainability’ of a writ petition under

Articles 226 and 227 of the Constitution and not with regard to its ‘maintainability’.

This Court in Godrej Sara Lee Ltd. v. The Excise and Taxation Officer-cum-Assessing

Authority has succinctly explained these concepts as under:—

“4 …In a long line of decisions, this Court has made it clear that availability of an

alternative remedy does not operate as an absolute bar to the “maintainability” of a writ

petition and that the rule, which requires a party to pursue the alternative remedy

provided by a statute, is a rule of policy, convenience and discretion rather than a rule

of law. Though elementary, it needs t o be restated that “entertainability” and

“maintainability” of a writ petition are distinct concepts. The fine but real distinction

between the two ought not to be lost sight of. The objection as to “maintainability” goes

to the root of the matter and if such objection were found to be of substance, the courts

would be rendered incapable of even receiving the lis for adjudication. On the other

hand, the question of “entertainability” is entirely within the realm of discretion of the

high courts, writ remedy being discretionary. A writ petition despite being maintainable

may not be entertained by a high court for very many reasons or relief could even be

refused to the petitioner, despite setting up a sound legal point, if grant of the claimed

relief would not further public interest….””

30. Therefore, this is a settled position of law that the High Court must exercise extreme

circumspection while invoking its supervisory jurisdiction under Article 227 of the

Constitution of India in matters challenging an Arbitral Tribunal's rejection of an

application under Section 16 of the Act. In the absence of such a manifest jurisdictional

defect, judicial interference at the interlocutory stage would be unwarranted and contrary

to the legislative policy of minimal court intervention in arbitral proceedings. Orders passed

by the Tribunal on an application under Section 16 of the Act are ordinarily amenable to

challenge only under Section 34 of the Act upon the conclusion of the arbitral proceedings

and the passing of the final award. It is always safe for the High Courts that, before

entertaining revision petitions under Article 227 of the Constitution of India against the

Orders passed by the Arbitral Tribunal, while exercising powers under Section 16 of the

Act, it should record a prima facie finding regarding the patent lack of inherent jurisdiction

and that too after providing an opportunity of hearing to the rival party/parties.”

9. In the light of the instructive guidelines laid down by the Hon’ble Supreme Court, it

must first be ascertained as to wheth er the order impugned suffers from a

“manifest jurisdictional defect”.

10. It is not in dispute that the agreement between the JV and the opposite party no.2

contains an arbitration clause. It is also undisputed that the arbitration was

invoked on behalf of the JV by issuing a notice dated September 30, 2019 and that

such notice had been issued by the person who was duly authorised to act on

behalf of the JV.

11. In terms of Section 21 of the 1996 Act - “Unless otherwise agreed by the parties, the

arbitral proceedings in respect of a particular dispute commence on the date on which

a request for that dispute to be referred to arbitration is received by the respondent.”

C.O. 577 OF 2026

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12. That being the legal position and since no contrary agreement between the parties

(i.e., nothing otherwise agreed by the parties) has been placed before this Court,

the arbitral proceedings in this case would be deemed to have commenced on the

date when the opposite party no.2 received the invocation notice dated September

30, 2019.

13. Although the records before this Court do not reveal the exact date on which the

said notice was received by the opposite party no.2, yet, the order dated September

27, 2023 passed by this Court whereby the JV’s application under Section 11 of the

1996 Act was disposed of, reveals that the opposite party no.2 had replied to the

JV’s notice under Section 21 of the 1996 Act by a letter dated November 18, 2019.

14. Thus, going by the provisions of Section 21 of the 1996 Act, which states that

arbitral proceedings commence on the date the respondent receives the notice

requesting arbitration, even if November 18, 2019 is taken as that date, the arbitral

proceedings commenced no later than November 18, 2019.

15. The aforesaid facts crystallise two points – (a) that a dispute (or disputes) had

arisen between the JV and the opposite party no.2 and (b) that the arbitral

proceedings had commenced by consent of both the constituents of the JV.

16. In such view of the matter, the Learned Sole Arbitrator appointed by this Court on

the application under Section 11 of the Court filed on behalf of the JV would have

the subject matter jurisdiction to decide the reference.

17. This Court is conscious of the petitioner’s contention that the said application

could not have been filed by the JV since the person who represented it before this

Court lacked authority to do so. However, the decision as to whether or not the JV

was properly represented would have to be ultimately taken by the Arbitral

Tribunal only in terms of the judgment of the Hon’ble Supreme Court in the case of

Andhra Pradesh Power Generation Corporation Limited (supra). In such

context, the following observations of the Hon’ble Court deserve notice:-

“15. It is certainly a matter of institutional discipline for the referral courts to enable

“parties” to identify and exercise alternative remedies, particularly that of arbitration, with

clarity and consistency. The question whether a member of a consortium can itself invoke

Section 11 of the 1996 Act is not one that admits of a monolithic or a uniform answer.

Answer to that question will necessarily depend on enquiry into the terms of the principal

contract, as well as the Consortium agreement. The specific terms of the Consortium

agreement, parties to that agreement, and the nature of the rights and mutual obligations

that the agreement creates will have to be examined in detail. The Reference Court will,

however, confine its enquiry only to a prima facie satisfaction as to whether a member of a

consortium qualifies as a “party” to the arbitration agreement. This prima facie satisfaction

is sufficient for the referral court to constitute and refer the dispute to the AT.

16. Thereafter, it is for the AT to undertake the detailed enquiry as to whether a

member of the consortium is in fact a veritable party to the arbitration agreement or not.

C.O. 577 OF 2026

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This is exactly the limited enquiry permitted and prescribed in Cox & Kings [Cox & Kings

Ltd. v. SAP India (P) Ltd., (2024) 4 SCC 1 : (2024) 2 SCC (Civ) 1 : (2024) 251 Comp Cas

680] , the relevant portion of which is as under: (SCC pp. 76 & 90-91, paras 126, 169 &

170.12)

“126. Evaluating the involvement of the non -signatory party in the negotiation,

performance, or termination of a contract is an important factor for a number of reasons.

First, by being actively involved in the performance of a contract, a non-signatory may

create an appearance that it is a veritable party to the contract containing the arbitration

agreement; second, the conduct of the non-signatory may be in harmony with the conduct

of the other members of the group, leading the other party to legitimately believe that the

non-signatory was a veritable party to the contract; and third, the other party has

legitimate reasons to rely on the appearance created by the non-signatory party so as to

bind it to the arbitration agreement.

***

169. In case of joinder of non-signatory parties to an arbitration agreement, the

following two scenarios will prominently emerge: first, where a signatory party to an

arbitration agreement seeks joinder of a non-signatory party to the arbitration agreement;

and second, where a non -signatory party itself seeks invocation of an arbitration

agreement. In both the scenarios, the referral court will be required to prima facie rule on

the existence of the arbitration agreement and whether the non-signatory is a veritable

party to the arbitration agreement. In view of the complexity of such a determination, the

referral court should leave it for the Arbitral Tribunal to decide whether the non-signatory

party is indeed a party to the arbitration agreement on the basis of the factual evidence

and application of legal doctrine. The Tribunal can delve into the factual, circumstantial,

and legal aspects of the matter to decide whether its jurisdiction extends to the non-

signatory party. In the process, the Tribunal should comply with the requirements of

principles of natural justice such as giving opportunity to the non-signatory to raise

objections with regard to the jurisdiction of the Arbitral Tribunal. This interpretation also

gives true effect to the doctrine of competence-competence by leaving the issue of

determination of true parties to an arbitration agreement to be decided by the Arbitral

Tribunal under Section 16.”

(Emphasis supplied)

18. This Court is alive to the fact that in Andhra Pradesh Power Generation

Corporation Limited (supra) one of the members of the consortium had

approached the Section 11 Court in its own name and not on behalf of the

consortium and an Arbitrator had been appointed. However, it is also noteworthy

that although in the said case the arbitration clause was invoked by a single

member only and not by the consortium yet the Hon’ble Supreme Court did not

invalidate the appointment and left the matter to be decided by the Arbitral

Tribunal while observing as follows:-

“20. Whether the first respondent has validly invoked arbitration individually, whether

the Consortium continues to exist, whether consent of other Consortium partners was

necessary, and whether claims are maintainable after commencement of liquidation, are

all matters which may legitimately be raised, contested and determined before the AT

under Section 16. Entertaining these questions here would amount to conducting a mini

trial at the Section 11 stage, contrary to the settled principles of minimal judicial

intervention and kompetenz-kompetenz.”

C.O. 577 OF 2026

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19. The legal position would not be any different in the facts of the present case as well.

The case at hand rests on a comparatively better factual premise. In this case the

arbitration clause was invoked on behalf of the JV (a fact that is undisputed) and

the Section 11 petition had also been filed by the JV through the liquidator (which

according to the petitioner was done without authority). If in a case where a non-

signatory to an arbitration agreement initiates arbitration and the Arbitral Tribunal

has competence to decide and rule on its jurisdiction, then in the present case

where the arbitration clause has been invoked by the signatory, there is no reason

why the Arbitral Tribunal would not have the jurisdiction to decide whether the

arbitral reference initiated by the JV can be continued and pressed in its name by

the liquidator or not.

20. In the instant case the existence of the arbitration agreement and its invocation are

undisputed. The dispute is with regard to the authority to represent the JV.

Therefore, the present case is not one of patent lack of inherent jurisdiction of the

Learned Arbitrator and the order passed by the Learned Arbitrator cannot be said

to suffer from a manifest jurisdictional defect. Intervention under Article 227 on

such score thus stands ruled out.

21. It was submitted by the petitioner that being a constituent of the JV it would be

bound by the award that may be passed in the arbitral proceeding but since its

application for intervention has been rejected it would not be entitled to challenge

the same under Section 34 of the 1996 Act. It was, therefore, contended that the

petitioner has no alternative or equally efficacious remedy and must invoke this

Court's jurisdiction under Article 227 of the Constitution of India.

22. Simply put the argument is that the petitioner would be left remediless if this Court

does not interfere at this stage. Although the petitioner’s arguments appear to be

compelling on the surface, they fail to bear the weight of the stark facts of the case.

23. CAN 1 of 2026, being an application for recalling of the interim order passed in the

revisional application, filed by the opposite party no.1/JV, reveals that a letter

dated April 06, 2023 had been issued by the liquidator to the petitioner in the

context of a letter dated March 28, 2023 written by the petitioner to the opposite

party no.2. By the letter dated March 28, 2023 the petitioner had informed the

opposite party no.2 that the petitioner had not given any authority to the liquidator

to act on behalf of the JV. The said letter dated March 28, 2023 was forwarded to

the liquidator by the opposite party no.2 under the cover of its letter dated March

30, 2023.

C.O. 577 OF 2026

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24. The letter dated April 06, 2023 written by the liquidator details the manner in

which the liquidator derived authority to represent the JV. Some of the concluding

paragraphs thereof deserve notice:-

“10. On this basis, kindly note that the Liquidator of PRIPL has acted in accordance

with the powers and rights granted to him in terms of the provisions of POA 1 and POA 2,

in the present case. Furthermore, there can be no room for doubt that AMR has in fact

accorded the requisite rights and powers to the Liquidator of PRIPL (by way of the POA 1

and POA 2) to act on behalf of the PRIPL JV, in the present case.

11. In this regard, kindly note that the PRIPL JV issued the NIA dated 30th September

2019 to OSEPL, at ref. (4) above, seeking to institute arbitration proceedings against

OSEPL, for recovery of amounts lawfully due by OSEPL to the PRIPL JV. Thereafter, given

that OSEPL failed to respond to the PRIPL JV's NIA dated 30th September 2019 at ref. (4)

above, it became imperative for PRIPL JV to file an application under Section 11(6) of the

Arbitration and Conciliation Act, 1996 ("Act") for the appointment of an Arbitrator on behalf

of OSEPL ("Section 11 Proceedings"). The petition is listed before Hon'ble Calcutta High

Court as AP 82/2023 and is pending adjudication.

12. We, therefore, reiterate to your kind selves, that not only was the Liquidator of

PRIPL, duly authorised to act on behalf of the PRIPL JV, in terms of the provisions of the

JVA read with the POA 1 and POA 2, but also, that the actions of the Liquidator of PRIPL,

in acting as the authorised representative of the PRIPL JV for instituting the Section 11

Proceedings, was also necessary, for the PRIPL JV to effect the recovery of amounts

lawfully due to it by OSEPL.

13. For this reason, it is our stand that your statement to OSEPL, that the Liquidator of

PRIPL has not been authorised to act on behalf of the PRIPL JV, is manifestly incorrect. In

fact, it would have been much appreciated had your office reached out to PRIPL on receipt

of any communication from OSEPL for necessary clarification.

14. In this regard, we also wish to understand whether your kind selves wish to share

the costs incurred by the PRIPL JV towards the Section 11 Proceedings, the ensuing

arbitration proceedings, and any other proceedings instituted by the PRIPL JV in this

regard, since the said proceedings are sought to be instituted solely to recover the amounts

lawfully due to the PRIPL JV from OSEPL, in relation to which, your kind selves also have

an interest.

15. Further, you are requested to share all available information maintained by your

office with regard to the PRIPL JV and the Contract (JV accounting records, bank

statements, copies of correspondence to/from OSEPL etc) to enable the undersigned as

authorized attorney to effectively represent the JV in the pending/proposed proceedings

against OSEPL.

16. Kindly note that OSEPL, by way of its letter dated 30th March 2023 at ref. (8) above

(by way of which, your letter dated 28th March 2023 was shared with us), has called

upon the Liquidator of PRIPL to "cease and desist from acting in any manner and / or

purporting to act in any manner on behalf of the PRATHYUSHA-AMR Joint Venture".

17. Kindly note that there is an urgent requirement for furnishing a response to OSEPL's

letter dated 30th March 2023 at ref. (8) above. Therefore, we request you to kindly revert to

the contents of this letter, within one week of receipt of the same, so as to enable us to

evaluate our further course of action, and the possible response to OSEPL's allegations

made by way of its letter dated 30th March 2023.

18. Please feel free reach out to the undersigned, at

irp.pripl@ibcprofessionalsolutions.com, in the event that you may have any further

clarifications / queries in relation to the proceedings instituted / sought to be instituted

against OSEPL by the PRIPL JV, in the present case.”

(Emphasis supplied)

C.O. 577 OF 2026

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25. The petitioner has admitted receipt of the said letter dated April 06, 2023 in

paragraph 6(l) of its affidavit in opposition to the JV’s recalling application.

26. There is nothing on record to show that any reply was issued by the petitioner to

the said letter. Once the petitioner found that - steps adversely affecting its

interests were being taken; that such action was being justified by the liquidator by

assigning reasons, which may or may not have been valid and the petitioner was

called upon by the liquidator to clarify its stance so that the liquidator could decide

the future course of action as also formulate a response to be given to the opposite

party no. 2, then at such critical juncture, the petitioner could no longer remain

silent. Having been directly confronted with the liquidator's claim of authority, the

petitioner had a distinct duty to speak; it could not sit idly by, await the result of

the Section 11 application and subsequently seek intervention in the arbitral

proceeding with a prayer fort termination of the arbitration under Section 32 on the

ground of an incompetent reference. It is well settled that a person may be

precluded by his actions or conduct or silence when it is his duty to speak, from

asserting a right which he otherwise would have had

16 and that silence at a time

when there is duty to speak may lead to forfeiture of contractual rights

17.

27. The petitioner’s silence was not passive silence in an ordinary commercial setting;

it occurred after an express demand for clarification concerning a matter on which

the petitioner now asserts a decisive contractual right. Having failed to assert the

same contractual veto (assuming that the petitioner had one) when it was

specifically called upon to do so, the petitioner could not have sought to exercise

that right later to the prejudice of the arbitral process.

28. There is another interesting aspect that cannot be missed. It would be evident from

the letter dated April 06, 2023 written by the liquidator to the petitioner that the

petitioner had by its letter dated March 28, 2023 intimated the opposite party no.2

that the petitioner had not granted any authority to the liquidator to act on behalf

of the JV. Despite knowledge of the petitioner’s stand, the opposite party did not

raise such issue before the Section 11 Court on September 19, 2023 when JV’s

application under Section 11 of the 19967 Act was heard by this Court. The said

application was disposed of on September 27, 2023.

29. The opposite party no.2 has however, filed an application for review (being RVW

No.4 of 2024) before this Court seeking review and recall of the order dated

September 27, 2023 on the exact same ground that the liquidator had no authority

16

State of Punjab vs. Dhanjit Singh Sandhu, (2014) 15 SCC 144

17

Arosan Enterprises Ltd. vs. Union of India, (1999) 9 SCC 449

C.O. 577 OF 2026

Page 22 of 26

to represent the JV as the petitioner had not authorised the liquidator therefor. The

petitioner on the other hand has filed an application for intervention in the said

application for review and prayed for setting aside and/or vacating the said order

dated September 27, 2023. Copies of both the applications form part of the JV’s

recalling application.

30. When the an application for review could be filed by the opposite party no.2 before

this Court seeking review and recall of the order dated September 27, 2023 and an

application for intervention and setting aside the said order could be filed by the

petitioner on the exact same ground that - the liquidator had no authority to

represent the JV as the petitioner had not authorised the liquidator therefor – the

reason for not taking the point earlier only smacks of an ulterior motive to delay

and derail the arbitral proceedings.

31. The Learned Arbitrator has highlighted the petitioner’s conduct in the impugned

order in the following manner:-

“12. The Applicant Intervenor was also aware of the institution of arbitral proceedings

by K. Sivalingam, the Liquidator of "Prathyusha" on behalf of the Claimant-JV from the

letter dated March 12, 2023 addressed to "AMR" Applicant Intervenor by the respondent

(Annexure C-52, page 16 of additional documents filed along with rejoinder). It is further

evident from letter dated March 28, 2023 addressed to the respondent by "AMR" -

Applicant Intervenor (Annexure C-53, page 17 of additional documents filed along with the

rejoinder) that the Applicant Intervenor has not given any power in favour of K. Sivalingam

to act on behalf of the Claimant-JV for invoking provision of Section 11 of the Arbitration

Act, 1996 and provision of Section 9 of the Arbitration Act, 1996 before the Hon'ble High

Court at Calcutta. No explanation is forthcoming before this Tribunal why Applicant

Intervenor did not make any correspondence with K. Sivalingam, Liquidat or of

"Prathyusha" by objecting that he has no power and authority to act on behalf of the

Claimant-JV to invoke the arbitral proceeding by moving applications u/s 9 and u/s 11 of

the Arbitration Act, 1996 before the Hon'ble High Court at Calcutta. No explanation is also

forthcoming before the Tribunal what prevented the Applicant Intervenor to intervene in the

hearing of applications u/s 11 and u/s 9 of the Arbitration Act, 1996 (AP-863/2022 and

AP-370/2023 heard on September 19, 2023 and judgment delivere d on September 27,

2023 by Hon'ble Justice Moushumi Bhattacharya), when the Applicant Intervenor had full

knowledge about the said proceedings before the Hon'ble High Court at Calcutta from the

letter dated March 12, 2023 addressed to the Applicant Intervenor by the respondent

(Annexure C-52, page 16 of additional documents filed along with the rejoinder). While the

Applicant Intervenor remained silent without making any direct objection to the initiation of

arbitral proceedings by K. Sivalingam on behalf of the Claimant-JV, the action and conduct

of the Applicant Intervenor amounts to acquiescing the action of initiation of arbitral

proceedings by K. Sivalingam on behalf of the Claimant-JV. Whatever objection is raised

before the Hon'ble High Court is raised by the respondent on behalf of the Applicant

Intervenor. The present stand of the Applicant Intervenor to stall the arbitral proceedings

between the Claimant-JV and the respondent after conclusion of recording of evidence of

both parties must be for some oblique motive and ulterior purpose and thereby there is

want of bona fide on the part of the Applicant Intervenor in the filing the present

application.”

(Emphasis supplied)

C.O. 577 OF 2026

Page 23 of 26

32. The order passed by the learned Sole Arbitrator reveals that the petitioner was

made aware of the fact that the liquidator was representing the JV by a letter dated

March 12, 2023. Nothing contrary has been shown to the Court and there is no

reason for this Court to disbelieve the recording of the learned Sole Arbitrator. In

such factual background the petitioner’s silence - after receipt of the liquidator’s

letter dated April 06, 2023 - speaks too loudly against the petitioner itself.

33. In fact paragraph 13 of the impugned order the learned Sole Arbitrator has

returned a finding of collusion between the petitioner and the opposite party no.2.

The same is extracted hereinbelow:

“13. What is the oblique motive and ulterior purpose of the Applicant Intervenor in filing the

present application is evident from serious conflict of interest and collusion between the

Applicant Intervenor and the respondent. The collusion between the Applicant Intervenor

and the respondent is evident from the fact that the Applicant Intervenor "AMR" has

22.57% of share-holding in the respondent company, which has been disclosed in the

audited financial statements by the respondent for the financial year 2021-22 and 2022-

23 (Annexures C-58 and C-59, page 54 and 84 of additional document s filed by the

claimant along with rejoinder). Since the respondent has already got the award of

Rs.322,77,58,577/- against the National Highway Authority of India (NHAI) and the said

amount was deposited with the Registrar of Delhi High Court by NHAI for the same project,

Applicant Intervenor - "AMR" might have got assurance from the respondent about

protection of its financial interest by the respondent due to admitted share-holding of

22.57% of the Applicant Intervenor in the respondent company. It is, thus, quite natural for

the Applicant Intervenor to change the stand by taking all possible measures for

termination of the present arbitral proceedings between the Claimant -JV and the

respondent. The above observation leads me to hold that there is deep rooted collusion

between the Applicant Intervenor and the respondent. The expectation of fulfillment of the

financial interest of the Applicant Intervenor due to admitted share-holding of 22.57% of

the Applicant Intervenor in the respondent company throws light on the oblique motive and

ulterior purpose of the Applicant Intervenor in filing the present application.”

34. This Court finds no reason to disagree with the learned Arbitrator. It is undisputed

that the petitioner has a shareholding of 22.57% in the opposite party no.2. Copies

of the audited financial statements of the petitioner appended as Annexure P 24 to

the recalling application filed by the JV indicate that the petitioner is one of the

promoters of the opposite party no.2. The petitioner has been found to be actively

communicating with and siding with the opposite party no.2 while maintaining

stoic silence to the clarification sought for by the liquidator. All of these taken

cumulatively denote bad- faith. In such view of the matter it was not far-fetched for

the Learned Sole Arbitrator to conclude that petitioner’s application had been filed

with “oblique motive and ulterior purpose”.

35. It also needs to be noted that the petitioner did not seek intervention in the arbitral

proceedings to protect the interest of the JV but to seek dismissal of the JV’s

claims – which are - the same claims for which the arbitration agreement stood

C.O. 577 OF 2026

Page 24 of 26

validly invoked by the JV itself by issuing the letter dated September 30, 2019. If

the petitioner sought dismissal of the JV’s claim there is hardly anything that the

petitioner might lose in the arbitral proceeding. If the arbitral proceeding ends with

dismissal of the JV’s claim on merits, the petitioner’s prayers would stand

answered. If the JV’s claims are allowed, the petitioner may be entitled to its dues

in terms of the JV agreement. If, the petitioner feels aggrieved by any anomaly as

regards its share in the JV its option to enter into an arbitral battle with the

opposite party no.3 is open in terms of the JV agreement itself.

36. There is one more way to look at the matter. In the present case, a major member

of the JV has gone into liquidation. The liquidator has stepped into the shoes of

that member to protect its assets. The petitioner cannot be permitted to use its

status as the "only other member" to completely paralyze a pre -existing claim

initiated by the JV, especially after failing to object when formally called upon to do

so.

37. It is true that if a party is left remediless, , it would be a case of “exceptional rarity”

and in terms of the guiding principles laid down by the Hon’ble Supreme Court in

the case of Bhaven Construction vs. Executive Engineer, Sardar Sarovar

Narmada Nigam Limited & Another

18, the High Court would be justified in

exercising its supervisory jurisdiction. However, the present case is certainly not so

as would be evident from the discussion in the preceding paragraphs.

38. Power under Article 227 of the Constitution of India is supervisory in ambit,

equitable in essence and discretionary in application. The Court will not exercise its

extraordinary equitable jurisdiction under Article 227 to aid a member of a JV

acting in bad faith and against the interest of the JV.

39. The petitioner’s assertion that the learned Arbitrator has decided questions over

which it had no authority or that the POA -2 conferred no authority on the

liquidator and that the liquidator had no power under Section 35(1)(d) and (k) of

the IBC to represent the JV do not impress this Court. The decision of the learned

Sole Arbitrator has pronounced upon the liquidator’s authority on the basis POA- 2

in the light of the JV agreement which he certainly had jurisdiction to do. Such

decision does not qualify for a manifest jurisdictional defect. It can in any case be

challenged before the Section 34 Court.

40. While on this, this Court is conscious that the petitioner has contended that it

would not be able to challenge the award under Section 34 of the 1996 Act since it

is not a party to the arbitral proceedings. In such context it needs to be noted that

18

(2022) 1 SCC 75

C.O. 577 OF 2026

Page 25 of 26

initially an application under Section 16 of the 1996 Act was filed by the opposite

party no.2 taking the same grounds that the petitioner has taken in its application

for intervention which was dismissed. The petitioner chose to intervene only

thereafter when adduction of evidence in the arbitral proceeding was closed. This

shows that the petitioner and the opposite party no.2 have been taking chances in

turn and the petitioner has been sailing on the same boat as that of the opposite

party no.2. The chance of the opposite party no.2 to challenge the award under

Section 34 of the 1996 Act is clearly open.

41. In the case of Maharashtra State Electricity Distribution Company Limited

(MSEDCL) (supra), the notice invoking arbitration agreement was issued

individually by one of the constituents of the Joint Venture. Though the said notice

was issued on behalf of the Joint Venture, there was no express authority to do so.

It was in such context that it was held that since no express authority in favour of

the notice issuing member had been granted in terms of Section 19(2)(a) of the

Indian Partnership Act, 1932, to refer the dispute, arising out of the business

relating to the Joint Venture, to arbitration, the said member could not legally

represent the Joint Venture. The said case does not aid the petitioner for at least

three reasons. Firstly, in the instant case the arbitration clause has been

admittedly invoked by the JV. Secondly, the JV agreement itself clarifies in Clause

22 that the relationship between the constituents of the JV would be that of

consortium and not partnership. Thirdly, it is noticed that the said judgment was

passed on an application under Section 34 of the 1996 Act which stage is yet to

arrive.

42. Consulting Engineers Group Limited (supra) has been rendered while relying on

Maharashtra State Electricity Distribution Company Limited (MSEDCL)

(supra) and as such the said judgment would also be of no avail to the petitioner

for the same reason wherefor the earlier cited judgment failed to help the petitioner,

as already indicated in the immediately preceding paragraph.

43. HLS Asia Limited (supra) had been cited to contend that it is necessary that each

member of a consortium should be made a party to the arbitral proceedings. The

said judgment turned on its own facts. It was held therein that making each

member of the consortium party to the arbitral proceedings would obviate any

subsequent plea that may be taken by any of the members that they are not bound

by the award that may be passed by the Tribunal, since they were not made

parties. The said judgment cannot further the cause of the petitioner in the facts of

the present case where the petitioner evidently seeks to be added as a party to the

C.O. 577 OF 2026

Page 26 of 26

arbitral proceeding only for getting the claim of the JV dismissed. The petitioner’s

application for intervention was/is not aimed at either the enhancement or

augmentation of the claim of the JV or for making its own claim. The petitioner’s

stoic silence and collusion as found by the arbitrator would render his addition

detrimental to the arbitration proceedings against the JV. By asking the Learned

Arbitrator to dismiss the arbitral claim entirely rather than asking to be properly

joined or represented, the petitioner has actively attempted to kill the JV's financial

claim to benefit a third party in whom the petitioner is clearly interested.

Furthermore, the said judgment was also rendered on an appeal under Section 37

of the 1996 Act which stage too is yet to be reached.

44. Kandla Export Corporation & Another (supra) cited by the opposite party no.1

reiterates that the 1996 Act is a complete code in itself while referring to Fuerst

day lawson Ltd. vs. Jindal Exports Ltd.

19

45. It is also noted that the opposite party no. 2 has filed an affidavit in the present

matter placing its case. It has clearly run the petitioner’s case. The same would

instantly lead one to believe that the petitioner’s battle is already being actively

fought by the opposite party no. 2.

46. For all the reasons aforesaid, this Court does not find any reason to interfere with

the order impugned. C.O. 577 of 2026 stands dismissed. Since the main revisional

application itself stands dismissed, the connected application, being CAN 1 of

2026, for recalling the interim order also stands disposed of accordingly. No costs.

47. Urgent photostat certified copy of this judgment, if applied for, be supplied to the

parties on urgent basis after completion of necessary formalities.

[OM NARAYAN RAI J.]

19

(2011) 8 SCC 333