As per case facts, a family dispute led to arbitration. An application for extension of the arbitral tribunal's mandate was filed before the Commercial Court. Separately, an arbitrator was appointed ...
2026 INSC 92 Page 1 of 27
REPORTABLE IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2026
ARISING OUT OF SLP (C) NO(S).10944-10945 OF 2025
JAGDEEP CHOWGULE ...APPELLANT(S)
VERSUS
SHEELA CHOWGULE & ORS. …RESPONDENT(S)
J U D G M E N T
Contents
I. Questions of Law Referred to the Division Bench .................................................. 2
II. The simple question for our consideration ............................................................ 3
III. Facts of the case ................................................................................................ 4
IV. Divergence in the opinion of the High Courts on interpretation of “Court” under
Section 2(1)(e) of the Act ......................................................................................... 5
A. Judgments taking the view that ‘Court’ in Section 29A is Court as defined in
Section 2(1)(e). .................................................................................................... 5
B. Other stream of judgments interpreting Court in Section 29A in the ‘context’ to
disapply Section 2(1)(e). ...................................................................................... 7
V. Scheme of the Act ............................................................................................... 9
VI. Scope of Referral Court’s Jurisdiction under Section 11 .................................... 11
VII. True Text and Context of Section 29A .............................................................. 14
VIII. Interpretation of the expression “Court” in Section 2(1)(e) ............................... 21
IX. Applicability of Section 42 ................................................................................. 25
X. Conclusion ........................................................................................................ 26
Page 2 of 27
1. Leave granted.
I. Questions of Law Referred to the Division Bench
2. The following two questions were referred by the Single Judge of
High Court of Bombay at Goa
1
to the Division Bench of the High Court for
authoritative determination.
"(i) In the event an Arbitral Tribunal constituted by the High Court
under Section 11(6) fails to complete the proceedings within the
stipulated period/extended period, where would an application
under Section 29A(4) lie in the High Court or the Civil Court having
original jurisdiction in case of a domestic arbitration?
ii) In the event an Arbitral Tribunal consisting of three Arbitrators is
constituted as per Section 11(2) i.e. with agreement and consent of
the parties, fail to complete the proceedings within the stipulated
period/extended period, where would an application under Section
29A(4) lie in before the High Court or the Civil Court having original
jurisdiction in the case of domestic arbitration?”
3. The Division Bench
2
answered the reference in the following
manner.
“(i) In the event an Arbitral Tribunal constituted by the High Court
under Section 11(6) fails to complete the proceedings within the
stipulated period/extended period, then an application under
Section 29A(4) would lie to the High Court in case of a domestic
arbitration.
(ii) In answer to the second question, we opine that in the event an
Arbitral Tribunal consisting of three Arbitrators is constituted as per
Section 11(2) i.e. with agreement and consent of the parties, fail to
complete the proceedings within the stipulated period/extended
period, the application under Section 29A(4) would lie to the
1
Vide order dated 15 .04.2024 in Writ Petition No. 88 of 2024 filed by Respondent
No.1, against of order of the Commercial Court in CMA No. 20/2023/A allowing
application under S ection 29A by Respondent no. 2.
2
Vide order dated 07.08.2024.
Page 3 of 27
Principal Civil Court of original jurisdiction in a district and includes
the High Court in exercise of its ordinary original jurisdiction.”
4. Following reference of the Division Bench, the learned Single Judge
allowed writ petition
3
filed by the respondent no.1 and quashed the order
passed by the Commercial Court extending the time for making the Award
under Section 29A(4) of the Arbitration and Conciliation Act, 1996
4
. The
decision of the Division Bench as well as the subsequent judgment and
order of the Single Judge are impugned before us.
II. The simple question for our consideration
5. As we begin to examine the very same questions, ably canvassed
before us by Mr. Abhay Anil Anturkar and Mr. Amit Pai, learned counsels
for the appellant and the respondents respectively, we would prefer to
reframe the question, which is as simple and straight forward as follows:-
If an arbitral tribunal - appointed by the High Court or by the parties
concerned – does not complete proceedings within the required or
extended time limit, can an application to extend time under Section
29A of the Act can be filed before the High Court or the Civil Court?
6. We are of the opinion that there was no need to split the questions
into two, one for a situation when the High Court constitutes the arbitral
tribunal under Section 11(6) and the other , when the parties themselves
constitute it under Section 11(2). Perhaps by asking the wrong questions,
3
Vide order dated 21.08.2024.
4
Hereinafter referred to as “the Act”.
Page 4 of 27
the Division Bench arrived at wrong answer s. It is not just this Division
Bench, in fact this perceived duality in the appointment process has given
rise to divergent views of different High Courts. Before we deal with the
divergent views of the High Court, followed by our analysis, short and
necessary facts are as follows.
III. Facts of the case
7. The present dispute arose out of Memorandum of Family Settlement
(MFS) dated 11.01.2021 executed between the parties herein, who all
form part of the ‘Chowgule’ family. Owing to further differences, arbitration
was invoked under clause 24 of the MFS on 18.05.2021. On 05.08.2023,
the respondent no. 2 filed application for extension under Section 29A
before the Commercial Court. In the meanwhile, owing to the resignation
of the presiding arbitrator, the respondent no. 2 filed application for
appointment of arbitrator under Section 11 before the High Court. The
application under Section 11 was allowed by the High Court vide order
dated 31.10.2023. This was followed by the Commercial Court allowing
the application under Section 29A, vide order dated 02.01.2024. The
same came to be challenged by respondent no. 1 by filing a writ petition
on 08.01.2024, on the ground that the Commercial Court did not have
jurisdiction to extend duration under Section 29A on account of
appointment of the arbitrator by the High Court under Section 11. The
Page 5 of 27
Single Judge by his order dated 15.04.2024 referred the matter to the
Division Bench in view of certain conflicting judgments on the
interpretation of Section 29A(4). The Division Bench, by the first order
impugned before us, observed that the application under Section 29A(4)
is not maintainable before the Commercial Court as the presiding
arbitrator was appointed by the High Court of Bombay at Goa in exercise
of power under Section 11 of the Act. Following the decision of the Division
Bench, the learned Single Judge, by the second impugned order allowed
the writ petition, set aside the order of the Commercial Court dated
02.01.2024, but permitted the parties to approach the High Court for
extension of time. Aggrieved, the appellant is before us contending that
the Commercial Court alone is the appropriate C ourt under Section 29A
read with Section 2(1)(e) of the Act .
IV. Divergence in the opinion of the High Courts on interpretation of
“Court” under Section 2(1)(e) of the Act
8. A large number of decisions of the High Courts on interpretation of
Section 29A of the Act can be categorized into following two streams.
A. Judgments taking the view that ‘Court’ in Section 29A is Court as
defined in Section 2(1)(e).
9. The first stream of High Court decisions in M ormugao Port Trust v.
Ganesh Benzoplast Ltd .
5
, M/s A'Xykno Capital Services Private Ltd. v.
5
WP No. 3 of 2020 (High Court of Bombay at Goa).
Page 6 of 27
State of UP
6
, and Dr. VV Subbarao v. Dr. Appa Rao Mukkamala & Ors.
7
,
hold that the expression ‘C ourt’ in Section 29A is the C ourt as defined
under Section 2(1)(e), irrespective of the event that the arbitral tribunal
was constituted by the Supreme or High Courts under Section 11(6) or by
consent of parties under Section 11(2) of the Act. They hold that, once an
arbitrator has been appointed through the judicial process, the Courts
become functus officio and applications seeking extension of mandate
under Section 29A are to be filed before Court as defined in Section
2(1)(e).
9.1 Further, as per this stream of decisions, the text of the legislation is
unambiguous. Neither a High Court not having original ordinary civil
jurisdiction has been included with regard to entertainability of an
application under Section 29A, nor a Principal Civil Court has been
excluded from Section 2(1)(e) for purpose of Section 29A. Some of these
decisions clarify that, when the legislature intended to delineate
jurisdictions, requisite provisions have duly been made, as exemplified
through Sections 47 and 57, whereby jurisdiction of Civil Courts is
expressly excluded. Further, Section 29A stipulates no distinction
between arbitrators appointed with the consent of parties or by
Constitutional Courts under Section 11.
6
2023 SCC OnLine All 2991.
7
2024 SCC OnLine AP 1668.
Page 7 of 27
B. Other stream of judgments interpreting Court in Section 29A in the
‘context’ to disapply Section 2(1)(e).
10. The second stream of High Court decisions in Nilesh Ramanbhai
Patel v. Bhanubhai Ramanbhai Patel
8
, Cabra Instalaciones Y. Servicios v.
Maharashtra State Electricity Distribution Co. Ltd.
9
, DDA v. Tara Chand
Sumit Construction Co.
10
, Amit Kumar Gupta v. Dipak Prasad
11
, Magnus
Opus IT Consulting Pvt Ltd v. Artcad Systems
12
, Indian Farmers Fertilizers
Cooperative Limited v. Manish Engineering Enterprises
13
, Best Eastern
Business House Pvt. Ltd. v. Mina Pradhan
14
, Ovington Finance Pvt Ltd. v.
Bindiya Naga
15
, K.I.P.L. Vistacore Infra Projects J.V. v. Municipal
Corporation of the city of Ichalkarnj
16
, M/S Geo Miller Company Private
Limited v. UP Jal Nigam and Ors.
17
, Best Eastern Business House Pvt.
Ltd. v. Mina Pradhan
18
, and M/s. Premco Rail Engineering Ltd. v. Indian
Institute of Technology, Indore
19
hold that in cases where the appointment
of arbitrator is by the High Court under Section 11(6), applications for
extension of time under Section 29A cannot be made before Civil Courts.
8
2018 SCC OnLine Guj 5017.
9
2019 SCC Online Bom 1437.
10
2020 SCC OnLine Del 2501.
11
2021 SCC OnLine Cal 2174.
12
2022 SCC OnLine Bom 2861.
13
2022 SCC OnLine All 150.
14
2025 SCC OnLine Cal 7997.
15
2023 SCC OnLine Del 8765.
16
2024 SCC Online Bom 327.
17
2024 SCC OnLine All 1676.
18
2025 SCC OnLine Cal 7997.
19
Arbitration Case No. 88 of 2025 (High Court of Madhya Prade sh).
Page 8 of 27
The primary concern in these decisions is, if the expression “Court” in
Section 2(1)(e) is interpreted to mean only the Court as defined there, it
will create a jurisdictional anomaly, that is, the High Court would be
appointing the arbitrator and the C ivil Court, a Court inferior to it, could be
asked to extend the arbitrator’s mandate and would also have the
jurisdiction to substitute the arbitrator appointed by the High Court.
10.1 It is reasoned that as the exclusive power of appointment of
arbitrator under Section 11 is of the Supreme Court or the High Courts,
the ancillary power of extension or substitution can only be of these
Courts, or else a situation of “conflict of power” between the Civil Court
and the High Court would arise in cases of domestic arbitration and a
similar conflict would arise between the High Court and the Supreme
Court in cases of international commercial arbitration.
10.2 To obviate the situation, these lines of decisions adopt the
interpretative principle of giving “contextual” meaning to the expression
‘Court’ in Section 29A by referring and relying on the phrase “in this Part,
unless the context otherwise requires” in Section 2(1) of the Act. The High
Courts, for instance the High Court of Gujarat in Nilesh Ramanbhai Patel
(Supra) followed by the Delhi High Court in DDA v. Tara Chand (Supra)
20
were troubled by the power of principal Civil Court to substitute arbitrators
20
2020 SCC OnLine Del 2501.
Page 9 of 27
appointed by the High Court. To resolve this complexity, they have taken
the view that “Court” under Section 29A for extension of the mandate of
the arbitral tribunal in the context of the arbitral tribunal being constituted
by the High Court or the Supreme Court under Section 11(6), shall not be
the “Court” as defined in Section 2(1)(e), but the High Court or the
Supreme Court under Section 11(6).
V. Scheme of the Act
11. As we are concerned with the jurisdiction and powers of the ‘Court’
under Section 29A, the said provision as well as the definition of ‘Court’ in
Section 2(1)(e) are reproduced hereinbelow for ready reference.
“Sec. 29A.Time limit for arbitral award. —(1) The award shall be
made within a period of twelve months from the date the arbitral
tribunal enters upon the reference.
Explanation.—For the purpose of this sub-section, an arbitral
tribunal shall be deemed to have entered upon the reference on the
date on which the arbitrator or all the arbitrators, as the case may
be, have received notice, in writing, of their appointment.
(2) If the award is made within a period of six months from the date
the arbitral tribunal enters upon the reference, the arbitral tribunal
shall be entitled to receive such amount of additional fees as the
parties may agree.
(3) The parties may, by consent, extend the period specified in sub-
section (1) for making award for a further period not exceeding six
months.
(4) If the award is not made within the period specified in sub-
section (1) or the extended period specified under sub-section (3),
the mandate of the arbitrator(s) shall terminate unless the Court
has, either prior to or after the expiry of the period so specified,
extended the period:
Provided that while extending the period under this sub-section, if
the Court finds that the proceedings have been delayed for the
Page 10 of 27
reasons attributable to the arbitral tribunal, then, it may order
reduction of fees of arbitrator(s) by not exceeding five per cent for
each month of such delay.
(5) The extension of period referred to in sub-section (4) may be on
the application of any of the parties and may be granted only for
sufficient cause and on such terms and conditions as may be
imposed by the Court.
(6) While extending the period referred to in sub-section (4), it shall
be open to the Court to substitute one or all of the arbitrators and if
one or all of the arbitrators are substituted, the arbitral proceedings
shall continue from the stage already reached and on the basis of
the evidence and material already on record, and the arbitrator(s)
appointed under this section shall be deemed to have received the
said evidence and material.
(7) In the event of arbitrator(s) being appointed under this section,
the arbitral tribunal thus reconstituted shall be deemed to be in
continuation of the previously appointed arbitral tribunal.
(8) It shall be open to the Court to impose actual or exemplary costs
upon any of the parties under this section.
(9) An application filed under sub-section (5) shall be disposed of
by the Court as expeditiously as possible and endeavour shall be
made to dispose of the matter within a period of sixty days from the
date of service of notice on the opposite party.
Sec. 2. Definitions.—(1) In this Part, unless the context otherwise
requires,—
(e) “Court” means— (i) in the case of an arbitration other than
international commercial arbitration, the principal Civil Court of
original jurisdiction in a district, and includes the High Court in
exercise of its ordinary original civil jurisdiction, having jurisdiction
to decide the questions forming the subject-matter of the arbitration
if the same had been the subject-matter of a suit, but does not
include any Civil Court of a grade inferior to such principal Civil
Court, or any Court of Small Causes;
(ii) in the case of international commercial arbitration, the High
Court in exercise of its ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming the subject-matter of the
arbitration if the same had been the subject-matter of a suit, and in
other cases, a High Court having jurisdiction to hear appeals from
decrees of courts subordinate to that High Court;”
Page 11 of 27
12. The Arbitration and Conciliation Act, 1996 is a complete code. While
Chapter I of the Act relates to definitions, limits of judicial intervention and
waiver. Chapter II defines the scope of an arbitration agreement, the
obligation of a judicial authority to refer the parties to the agreement to
arbitration and power of the Court to provide interim measures. Chapter
III relates to the initiation and composition of arbitral tribunal, as also the
procedure and remedies for challenging the appointments. Chapter IV
relates to jurisdiction of arbitral tribunals, its powers to examine its own
competence and also to provide interim measures. Chapter V deals with
the conduct of arbitral proceedings. The process of making of award and
termination of arbitral proceedings is dealt with in Chapter VI. Finally,
Chapters VII, VIII and IX relate to judicial remedies for challenging the
award, appeal, finality and enforcement.
VI. Scope of Referral Court ’s Jurisdiction under Section 11
13. As the statutory policy exclusively enabling the High Court or the
Supreme Court to appoint arbitrators and at the same time, excluding the
Civil Courts weighed heavily o n the second stream of decisions in arriving
at its conclusions, it is necessary to examine the ambit of this function.
The Act identifies Courts of varying jurisdiction and imposes distinct
obligations on them. The power and jurisdiction to constitute an arbitral
tribunal and to appoint an arbitrator in case of domestic arbitrations is
vested in the High Court and in case of international commercial
Page 12 of 27
arbitrations, in the Supreme Court. The nature of this jurisdiction has
consistently been characterised by this Court as special and limited. In
SBP and Co. v. Patel Engineering Ltd.
21
, this Court explained the purpose
and object of the power of appointment. The limits of this function and
obligation to constitute the arbitral tribunal is explained as follows;
“13. It is common ground that the Act has adopted the
UNCITRAL Model Law on International Commercial Arbitration,
but at the same time it has made some departures from the
Model Law. Section 11 is in the place of Article 11 of the Model
Law. The Model Law provides for the making of a request under
Article 11 to “the court or other authority specified in Article 6 to
take the necessary measure”. The words in Section 11 of the Act
are “the Chief Justice or the person or institution designated by
him”. The fact that instead of the court, the powers are conferred
on the Chief Justice, has to be appreciated in the context of the
statute. “Court” is defined in the Act to be the Principal Civil Court
of original jurisdiction of the district and includes the High Court
in exercise of its ordinary original civil jurisdiction. The Principal
Civil Court of original jurisdiction is normally the District Court.
The High Courts in India exercising ordinary original civil
jurisdiction are not too many. So in most of the States the court
concerned would be the District Court. Obviously, Parliament did
not want to confer the power on the District Court, to entertain a
request for appointing an arbitrator or for constituting an Arbitral
Tribunal under Section 11 of the Act. It has to be noted that under
Section 9 of the Act, the District Court or the High Court exercising original jurisdiction, has the power to make interim
orders prior to, during or even post-arbitration. It has also the
power to entertain a challenge to the award that may ultimately
be made. The framers of the statute must certainly be taken to
have been conscious of the definition of “court” in the Act. It is
easily possible to contemplate that they did not want the power
under Section 11 to be conferred on the District Court or the High
Court exercising original jurisdiction. The intention apparently
was to confer the power on the highest judicial authority in the
State and in the country, on the Chief Justices of the High Courts
and on the Chief Justice of India. Such a provision is necessarily
intended to add the greatest credibility to the arbitral process.
21
(2005) 8 SCC 618.
Page 13 of 27
The argument that the power thus conferred on the Chief Justice
could not even be delegated to any other Judge of the High Court
or of the Supreme Court, stands negatived only because of the
power given to designate another. The intention of the legislature appears to be clear that it wanted to ensure that the power under
Section 11(6) of the Act was exercised by the highest judicial
authority in the State or in the country concerned. This is to
ensure the utmost authority to the process of constituting the
Arbitral Tribunal.”
(emphasis supplied)
14. Post SBP and Co. (Supra), the legislative changes to Section 11 ,
including introduction of the statutory restraint through Section 11(6A)
22
coupled with the express empowerment of the arbitral tribunal to rule on
its own jurisdiction under Section 16 is explained in a long line of
precedents; Duro Felguera SA v Gangavaram Port Ltd
23
, Interplay
Between Arbitration Agreement under the Arbitration and Conciliation Act
1996 and the Indian Stamp Act 1899 In re
24
, SBI General Insurance Co
Ltd v Krish Spinning Mills Pvt Ltd
25
, and A.P. Power Generation
Corporation Ltd. v. M/s. TECPRO Systems Ltd.
26
. It is now settled that
the enquiry under Section 11 is confined to a prima facie determination of
the existence of an arbitration agreement. The enquiry under Section 11
goes no further.
22
Section 11(6A)- The Supreme Court or, as the case may be, the High Court, while
considering any application under sub- section (4) or sub- section (5) or sub- section (6),
shall, notwithstanding any judgment, decree or order of any Court, confine to the
examination of the existence of an arbitration agreement.
23
(2017) 9 SCC 729.
24
(2024) 6 SCC 1.
25
(2024) 12 SCC 1.
26
2025 SCC OnLine SC 2851.
Page 14 of 27
15. Exercise of jurisdiction under Section 11 stands exhausted upon the
constitution of the arbitral tribunal. There is no residual supervisory or
controlling power left with the High Court or the Supreme Court over the
arbitral proceedings after appointment is made. To read Section 11 as
conferring such enduring control would be to conflate appointment with
supervision, a conflation which the Act as well as the precedents on the
subject prohibit.
27
It is a misconception to assume that the Supreme Court
or the High Court keeps a watch on the Conduct of Arbitral Proceedings
or on Making of the Arbitral Award like the Orwell’s “Big Brother is
watching you”. The referral Court becomes functus officio once
appointment has been made, it has no role or function as a Subjudice
Sentinel.
VII. True Text and Context of Section 29A
16. As we move away from the process of “A ppointment of Arbitrators”
under Section 11 and arrive at the “Conduct of Arbitral Proceedings” and
“Making of Arbitral Award and Termination”, which procedures are
articulated in Chapters V and VI, we notice the Parliament ’s endeavour to
introduce principles of integrity and efficiency in working of the alternative
remedy by prescribing time limits. This is an important feature, introduced
through Section 29A, w.e.f. 23.10.2015. The Section in its entirety has
27
Kamal Gupta v. L.R. Builder, 2025 SCC OnLine SC 1691.
Page 15 of 27
already been extracted for ready reference, but a holistic reading of the
provision with other parts of the Act mandates as follows;
(i) Sub-Section (1) of Section 29A mandates that the award shall be
made within 12 months of the completion of pleadings before the
Arbitral Tribunal
28
. While sub-Section (2) incentivises expeditious
making of the Award, proviso to s ub-Section (4) and sub-Section
(8) authorises the Court to impose penalty for delay in making the
award.
(ii) Sub-Section (3) enables parties , by consent, to extend the period
of 12 months for making the award by a further period not
exceeding 6 months.
(iii) If the award is not made within the stipulated period of 12 months
or the extended period of 6 months, the mandate of the
arbitrator(s) shall terminate.
(iv) This termination is subject to the power of the C ourt to extend
the period
29
.
28
Explained by this Court in Rohan Builders (India) Pvt Ltd v. Berger Paints India
Limited 2024 SC Online SC 2494, “Prior to the enactment of Section 29A of the A & C
Act did not specify a time limit for making an arbitral award. This was deliberate, given
the fact that the First Schedule and Section 28 of the Arbitration Act, 1940 led to
litigation and delay. Section 29A, as quoted above, was inserted by Act 3 of 2016 with
retrospective effect from 23.10.2015. The Arbitration and Conciliation (Amendment)
Act, 2015 aimed to ensure that arbitration proceedings are completed without
unnecessary adjournments and delay.”
29
The Law Commission’s 176
th
Report @ 2.21.5 explains the purpose and object of
vesting of this power as follows, “One other important aspect here is that if there is a
delay beyond the initial one year and the period agreed to by the parties (with an upper
of another one year) and also any period of extension granted by the Court, there is
Page 16 of 27
(v) The ‘Court’ under Section 29A shall be the Civil Court of ordinary
original jurisdiction in a district and includes the High Court in
exercise of its original civil jurisdiction under Section 2(1)(e), and
shall not be the High C ourt or the Supreme Court under Section
11(6) of the Act. Equally, Section 42 of the Act relating to
jurisdiction for application will not apply to Section 11 of the Act.
30
(vi) There is no statutorily prescribed time limit for the Court to
exercise its power under Section 29A(4) for extending the period,
except for its own restraint. The Court can exercise the power
before or after the expiry of the period under sub-Sections 29A(1)
or (3). Further, there is no prescription of outer limit for extending
time for conclusion of arbitral proceedings. Given this power, the
no point in terminating the arbitration proceedings. We propose it as they should be
continued till award is passed. Such a termination may indeed result in waste of time
and money for the parties after lot of evidence is led. In fact, if the proceedings were
to terminate and the claimant is to file a separate suit, it will even become necessary
to exclude the period spent in arbitration proceedings, if he was not at fault, by
amending sec. 43(5) to cover such a situation. But the Commission is of the view that
there is a better solution to the problem. The Commission, therefore, proposes to see
that an arbitral award is ultimately passed even if the above said delays have taken
place. In order that there is no further delay, the Commission proposes that after the
period of initial one year and the further period agreed to by the parties (subject to a
maximum of one year) is over, the arbitration proceedings will nearly stand suspended
and will get revived as soon as any party to the proceedings files an application in the
Court for extension of time. In case none of the parties files an application, even then
the arbitral tribunal may seek an extension from the Court. From the moment the
application is filed, the arbitration proceedings can be continued. When the Court takes
up the application for extension, it shall grant extension subject to any order as to costs
and it shall fix up the time schedule for the future procedure before the arbitral tribunal.
It will initially pass an order granting extension of time and fixing the time frame before
the arbitral tribunal and will continue to pass further orders till time the award is passed.
This procedure will ensure that ultimately an award is passed.”
30
State of West Bengal v. Associated Contractors, (2015) 1 SCC 32.
Page 17 of 27
Court will exercise it with circumspection, balancing the remedy
with rights of other stake holders.
(vii) The power of the Court to extend the time under sub-Section (4)
may be exercised on an application by any of the parties. Once
such an application for extension of time is pending, the mandate
of the arbitrator shall continue till the disposal of such application
under sub-Section (9). The Court shall also endeavour to dispose
of such an application within 60 days.
(viii) Under Section 29A(6), while exercising the power of extension, it
shall be open to the Court to substitute one or all the arbitrators.
This is a discretionary power that the Court would exercise in the
facts and circumstances of the case. Upon substitution, the
reconstituted tribunal shall be deemed to be in continuation of the
previously appointed tribunal as per Section 29A(7) and shall
continue from the stage already reached and on the basis of
evidence already on record. The newly appointed arbitrators
shall be deemed to have received the evidence and materials.
(ix) Vesting of the power of substitution, under Section 29A(6), is on
the Court and this Court is the Court as defined in Section 2(1)(e) .
The text as well as the context for identifying the Court in Section
29A(6), as well as in 29A(4), is the Court in Section 2(1)(e). The
Page 18 of 27
expression ‘Court’ in other provisions must be guided by the
meaning given in Section 2(1)(e).
17. Before we examine the interpretative choices of the Court to
decipher the true meaning of a word on the basis of the context, it is
necessary for us to consider if perceptions such as “inferior C ourt”,
“conflict of power”, “hierarchy” or even a “ jurisdictional anomaly”, can
supply “context” for deviating from a definition supplied by the Parliament
to an expression. We have no hesitation in holding that interpretation
based on a perception of status or hierarchy of Courts is opposed to the
fundamental conception of rule of law. It is apt to refer to the famous
statement of Dicey that, ‘however high you may be, the law is above you.’
Law, and law alone is the source of power.
18. In A.R. Antulay v. R.S. Nayak
31
, this Court held an occasion to de al
with this perception;
“91. It is the settled position in law that jurisdiction of courts
comes solely from the law of the land and cannot be exercised
otherwise. So far as the position in this country is concerned
conferment of jurisdiction is possible either by the provisions of
the Constitution or by specific laws enacted by the legislature.
For instance, Article 129 confers all the powers of a court of
record on the Supreme Court including the power to punish for
contempt of itself. Articles 131, 132, 133, 134, 135, 137, 138
and 139 confer different jurisdictions on the Supreme Court
while Articles 225, 226, 227, 228 and 230 deal with conferment
of jurisdiction on the High Courts. Instances of conferment of
jurisdiction by specific law are very common. The laws of
procedure both criminal and civil confer jurisdiction on different
31
1988 2 SCC 602.
Page 19 of 27
courts. Special jurisdiction is conferred by special statute. It is thus clear that jurisdiction can be exercised only when provided
lower either in the Constitution or in the laws made by the
legislature. Jurisdiction is thus the authority or power of the
court to deal with a matter and make an order carrying binding
force in the facts. In support of judicial opinion for this view
reference may be made to the Permanent Edition of “Words and
Phrases” Vol. 23-A at page 164. It would be appropriate to refer
to two small passages occurring at pages 174 and 175 of the
volume. At page 174, referring to the decision
in Carlile v. National Oil & Development Co. it has been stated.
Jurisdiction is the authority to hear and determine, and in order
that it may exist the following are essential: (1) A court created
by law, organized and sitting; (2) authority given to it by law to
hear and determine causes of the kind in question; (3) power
given to it by law to render a judgment such as it assumes to
render; (4) authority over the parties to the case if the judgment
is to bind them personally as a judgment in personam, which is
acquired over the plaintiff by his appearance and submission of
the matter to the court, and is acquired over the defendant by
his voluntary appearance, or by service of process on him; (5)
authority over the thing adjudicated upon its being located within
the court's territory, and by actually seizing it if liable to be
carried away; (6) authority to decide the question involved,
which is acquired by the question being submitted to it by the
parties for decision.”
(emphasis supplied)
19. In recent times, particularly in the context of ‘Court’ in arbitral
proceedings, this Court in State of Jharkhand & Ors. v. Hindustan
Construction Co. Ltd.
32
held;
“66. In Guru Nanak Foundation [Guru Nanak
Foundation v. Rattan Singh and Sons, (1981) 4 SCC 634] , as
noted earlier, the two-Judge Bench has distinguished the
principle laid down in Garikapati Veeraya [Garikapati
Veeraya v. N. Subbiah Choudhry, 1957 SCR 488 : AIR 1957 SC
540] by stating that the door of this Court is not closed to the
appellant. In fact, as has been stated, the door is being held
32
2018 2 SCC 602.
Page 20 of 27
wide ajar for him to raise all contentions which one can raise in
a proceeding in an originating summons. The aforesaid statement of law is not correct because the superior court is not
expected in law to assume jurisdiction on the foundation that it
is a higher court and further opining that all contentions are
open. The legislature, in its wisdom, has provided an appeal
under Section 39 of the Act. Solely because a superior court
appoints the arbitrator or issues directions or has retained some
control over the arbitrator by requiring him to file the award in
this Court, it cannot be regarded as a court of first instance as
that would go contrary to the definition of the term “court” as
used in the dictionary clause as well as in Section 31(4). Simply
put, the principle is not acceptable because this Court cannot
curtail the right of a litigant to prefer an appeal by stating that
the doors are open to this Court and to consider it as if it is an
original court. Original jurisdiction in this Court has to be vested
in law. Unless it is so vested and the Court assumes, the court
really scuttles the forum that has been provided by the
legislature to a litigant. That apart, as we see, the said principle
is also contrary to what has been stated in Kumbha
Mawji [Kumbha Mawji v. Union of India, 1953 SCR 878 : (1953)
1 SCC 700 : AIR 1953 SC 313]. It is worthy to note that this
Court may make a reference to an arbitrator on consent but to
hold it as a legal principle that it can also entertain objections as
the original court will invite a fundamental fallacy pertaining to
jurisdiction.
67. In Surjit Singh Atwal [Union of India v. Surjeet Singh Atwal,
(1969) 2 SCC 211], a three-Judge Bench had opined that
applications under Section 8 and under Section 20, though
clearly applications anterior to the reference, lead to a
reference. Such applications are undoubtedly applications “in
the matter of a reference” and may fall within the purview of
Section 31(4) of the Act even though these applications are
made before any reference has taken place. The purpose of
referring to the said authority is that the principle stated
in Kumbha Mawji [Kumbha Mawji v. Union of India, 1953 SCR
878 : (1953) 1 SCC 700 : AIR 1953 SC 313] has been
elaborated in Surjit Singh Atwal [Union of India v. Surjeet Singh
Atwal, (1969) 2 SCC 211]. It is to be borne in mind that the Court
that has jurisdiction to entertain the first application is
Page 21 of 27
determinative by the fact as to which Court has the jurisdiction
and retains the jurisdiction. In this regard, an example may be
cited. When an arbitrator is not appointed under the Act and the
matter is challenged before the High Court or, for that matter,
the Supreme Court and, eventually, an arbitrator is appointed
and some directions are issued, it will be inappropriate and
inapposite to say that the superior court has the jurisdiction to
deal with the objections filed under Sections 30 and 33 of the
Act. The jurisdiction of a court conferred under a statute cannot
be allowed to shift or become flexible because of a superior
court's interference in the matter in a different manner.”
(emphasis supplied)
20. For the reasons stated above, we are of the opinion that the
conclusion on the ground that there will be hierarchical difficulties, conflict
of power or jurisdictional anomaly if a Civil Court entertains application
under Section 29A for extension of time of an arbitral tribunal if the High
Court under Section 11(6) of the Act has appointed the arbitrator(s) is
untenable. This approach is hereby rejected.
VIII. Interpretation of the expression “Court” in Section 2(1)(e)
21. It is a settled principle of statutory interpretation that a defined term
must ordinarily bear the meaning assigned to it “unless the context
otherwise requires”.
33
Further, in State of West Bengal v. Associated
Contractors
34
, a three-judge bench held that no Court other than the one
33
KV Muthu v. Angamuthu Amman, (1997) 2 SCC 53 – “12. Where the definition or
expression, as in the instant case, is preceded by the words “unless the context
otherwise requires”, the said definition set out in the section is to be applied and given
effect to but this rule, which is the normal rule may be departed from if there be
something in the context to show that the definition could not be applied.”
34
(2015) 1 SCC 32.
Page 22 of 27
defined in Section 2(1)(e) gets qualified as ‘Court’ under Part I of the Act,
1996. It observed that,
“25. …. (a) Section 2(1)(e) contains an exhaustive definition
marking out only the Principal Civil Court of Original Jurisdiction
in a district or a High Court having original civil jurisdiction in the
State, and no other court as “court” for the purpose of Part I of
the Arbitration Act, 1996.”
22. Similarly, in Nimet Resources Inc. & Anr. v. Essar Steels Ltd.
35
where this Court considered Section 2(1)(e) in the context of Section 14
observed as under:
“8. Application in terms of sub-section (2) of Section 14, thus, lies
before a “court” within the meaning of the 1996 Act.
9. It is only thus the “court”, within the meaning of the provisions
of the said Act which can entertain such an application raised by
the parties herein and determine the dispute therein on merit.
10. Unlike the 1940 Act, “court” has been defined in Section
2(1)(e) to mean:
“2. (1)(e) ‘Court’ means the Principal Civil Court of Original
Jurisdiction in a district, and includes the High Court in
exercise of its ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming the subject-
matter of the arbitration if the same had been the subject-
matter of a suit, but does not include any civil court of a
grade inferior to such Principal Civil Court, or any Court of
Small Causes;”
11. As a “court” has been defined in the 1996 Act itself, an
application under Section 14(2) would be maintainable only
before the Principal Civil Court which may include a High Court
having jurisdiction but not this Court.
12. This Court in passing its order dated 27-9-2000, as noticed
hereinbefore, did not and could not retain any jurisdiction in itself
as could be done in suitable cases under the 1940 Act. It even
did not determine the validity or otherwise of the arbitration
35
(2009) 17 SCC 313.
Page 23 of 27
agreement. It allowed the parties to take recourse to their
remedies before the learned arbitrator. When the said order was
passed, this Court was considered to have only an administrative
power, but the same has since been held to be a judicial power
in SBP & Co. v. Patel Engg. Ltd. [(2005) 8 SCC 618] The said
jurisdiction, however, does not extend to Section 14 of the Act.
13. The definition of “court” indisputably would be subject to the context in which it is used. It may also include the appellate
courts. Once the legislature has defined a term in the
interpretation clause, it is not necessary for it to use the same
expression in other provisions of the Act. It is well settled that
meaning assigned to a term as defined in the interpretation
clause unless the context otherwise requires should be given the
same meaning.
14. It is also well settled that in the absence of any context
indicating a contrary intention, the same meaning would be
attached to the word used in the later as is given to them in the
earlier statute. It is trite that the words or expression used in a
statute before and after amendment should be given the same
meaning. It is a settled law that when the legislature uses the
same words in a similar connection, it is to be presumed that in
the absence of any context indicating a contrary intention, the
same meaning should attach to the words.
18. Jurisdiction under Section 11(6) of the 1996 Act is used for a
different purpose. The Chief Justice or his designate exercises a
limited jurisdiction. It is not as broad as sub-section (4) of Section
20 of the 1940 Act. When an arbitrator is nominated under the
1996 Act, the court does not retain any jurisdiction with it. It
becomes functus officio subject of course to exercise of
jurisdiction in terms of constitutional provisions or the Supreme
Court Rules.”
(emphasis supplied)
23. Nimet Resources (Supra) clarifies two propositions of enduring
relevance. First, that applications concerning conduct, continuation,
termination or substitution of an arbitral mandate, whether under Section
14 or otherwise, are matters of curial supervision and must be instituted
before the “Court” as statutorily defined. Second, that the jurisdiction
exercised under Section 11 is limited and exhausted upon the constitution
Page 24 of 27
of the arbitral tribunal, leading to the appointing Court becoming functus
officio thereafter. These principles apply with equal force to Section 29A.
The extension of mandate or substitution of an arbitrator under Section
29A does not partake the character of “appointment ” under Section 11,
but is a measure designed to ensure timely conclusion of arbitration.
Absence of any contextual indicia to the contrary, the expression “Court”
in Section 29A must, therefore, be accorded the meaning assigned to it
under Section 2(1)(e).
24. Chief Engineer (NH) PWD (Roads) v. BSC&C and C JV
36
is a
decision, directly on the point. It is distinguished on the basis that the
original appointment of arbitrator was not by the Court. W e have already
clarified that Section 11 will have no bearing on the working of the
provisions in Chapters V and VI, where Section 29A is located. This Court
held;
“2. The power under sub-Section (4) of Section 29A of the
Arbitration Act vests in the Court as defined in Section 2(1)(e) of
the Arbitration Act. It is the principal Civil Court of original
jurisdiction in a district which includes a High Court provided the
High Court has ordinary original civil jurisdiction.
3. In this case, the High Court does not have the ordinary original
civil jurisdiction. The power under sub-Section (6) of Section 29A
is only a consequential power vesting in the Court which is
empowered to extend the time. If the Court finds that the cause
of delay is one or all of the arbitrators, while extending the time,
the Court has power to replace and substitute the Arbitrator(s).
The said power has to be exercised by the Court which is
36
2024 SCC OnLine SC 1801.
Page 25 of 27
empowered to extend the time as provided in sub-Section (4) of
Section 29A of the Arbitration Act.”
IX. Applicability of Section 42
25. The analysis would be incomplete without taking note of Section 42
of the Act, though reference to Section 42 has not been made before the
High Court or this Court. Section 42 provides that;
“42. Jurisdiction. —Notwithstanding anything contained
elsewhere in this Part or in any other law for the time being in
force, where with respect to an arbitration agreement any
application under this Part has been made in a Court, that Court
alone shall have jurisdiction over the arbitral proceedings and all
subsequent applications arising out of that agreement and the
arbitral proceedings shall be made in that Court and in no other
Court.”
26. It may be argued that since application under Section 11(6) for
appointment is filed before High Court, all successive applications,
including the one under Section 29A(4) must be made to such High Court.
We need not labour on this issue as a Constitution Bench of this Court in
State of Jharkhand v. Hindustan Construction Co.
37
affirming the decision
in Associated Contracts (Supra) has held that, solely because a superior
Court appoints the arbitrator, or issues directions or has retained some
control over the arbitrator, it cannot be regarded as a ‘C ourt’ of first
instance for purposes of Section 42. In Associated Contracts (Supra) this
Court opined:
37
(2018) 2 SCC 602.
Page 26 of 27
“13. It will be noticed that whereas the earlier definition contained
in the 1940 Act spoke of any civil court, the definition in the 1996
Act fixes “court” to be the Principal Civil Court of Original
Jurisdiction in a district or the High Court in exercise of its
ordinary original civil jurisdiction. Section 2(1)(e) further goes on
to say that a court would not include any civil court of a grade
inferior to such Principal Civil Court, or a Small Cause Court.
14. It will be noticed that the definition is an exhaustive one as it
uses the expression “means and includes”. It is settled law that
such definitions are meant to be exhaustive in nature—see P.
Kasilingam v. P.S.G. College of Technology [1995 Supp (2) SCC
348].
16. Similar is the position with regard to applications made under
Section 11 of the Arbitration Act. In Rodemadan India Ltd. v.
International Trade Expo Centre Ltd. [(2006) 11 SCC 651], a
Designated Judge of this Hon'ble Court following the seven-
Judge Bench in SBP and Co. v. Patel Engg. Ltd. [(2005) 8 SCC
618], held that instead of the court, the power to appoint
arbitrators contained in Section 11 is conferred on the Chief
Justice or his delegate….
***
It is obvious that Section 11 applications are not to be moved
before the “court” as defined but before the Chief Justice either
of the High Court or of the Supreme Court, as the case may be,
or their delegates. This is despite the fact that the Chief Justice
or his delegate have now to decide judicially and not
administratively. Again, Section 42 would not apply to
applications made before the Chief Justice or his delegate for
the simple reason that the Chief Justice or his delegate is not
“court” as defined by Section 2(1)(e). The said view was
reiterated somewhat differently in Pandey & Co. Builders (P) Ltd.
v. State of Bihar [(2007) 1 SCC 467].”
(emphasis supplied)
X. Conclusion
27. In view of the above, we allow the appeals, set aside the reference
of the Division Bench in Writ Petition No. 88 of 2024 dated 07 .08.2024
and the subsequent judgment and order of the Single Judge of the High
Court in Writ Petition No. 88 of 2024 dated 21 .08.2024 and restore the
Page 27 of 27
judgment of the Commercial Court in Civil Miscellaneous Application No.
20/2023/A dated 02.01.2024. Parties are at liberty to move the
Commercial Court for further extension under Section 29A(5) for
exercising Court’s power under Section 29A(4). The Court shall consider
the application, hear the parties and pass appropriate orders.
28. There shall be no order as to costs.
………………………………....J.
[PAMIDIGHANTAM SRI NARASIMHA]
………………………………....J.
[R. MAHADEVAN]
NEW DELHI;
JANUARY 29, 2026
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