As per case facts, a dispute between Jalandhar Improvement Trust (petitioner) and Shourya Towers Private Limited (respondent) led to arbitration. Despite multiple extensions and warnings, the petitioner failed to file ...
CR-6014-2025 (O&M) -1-
126+276
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
***
CR-6014-2025 (O&M)
Date of Decision: 06.11.2025
Jalandhar Improvement Trust and others .... Petitioners
Versus
Shourya Towers Private Limited ..... Responden t
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Dr. Anmol Rattan Sidhu, Senior Advocate assisted by
Ms. Mandeep Kaur, Advocate,
Ms. Sandhya Gaur, Advocate,
Mr. Raghav Gulati, Advocate,
for the petitioners.
Mr. Chetan Mittal, Senior Advocate assisted by
Mr. Himanshu Gupta, Advocate &
Ms. Sehej Sandhawalia, Advocate,
Mr. Avichal Sharma, Advocate,
for the respondent.
****
JASGURPREET SINGH PURI
, J. (ORAL)
1. The present is a Civil Revision Petition filed under Article 227
of the Constitution of India seeking quashing of the order dated 09.04.2025
(Annexure P-11) passed by learned Sole Arbitrator whereby the right to file
the statement of defence as well as the counter claim of the petitioner has
been struck off by invoking the provisions of Section 25(b) of the
Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the
Arbitration Act’). Further prayer has been made for setting aside of the
impugned order dated 12.08.2025 (Annexure P-18) passed by learned Sole
Arbitrator whereby the application filed by the petitioner for recalling of the
aforesaid order dated 09.04.2025 has been rejected.
CR-6014-2025 (O&M) -2-
FACTUAL MATRIX
2. Brief facts of the present case are that there was an Agreement
between petitioner No.1 i.e. Jalandhar Improvement Trust and the
respondent-Contractor pertaining to construction of towers and thereafter, a
dispute arose between the parties. Since there was a valid arbitration clause
in the aforesaid Agreement and the mechanism for appointment of an
Arbitrator had failed, the respondent-Contractor filed an application before
this Court for appointment of an Arbitrator under the provisions of Section
11(6) of the Arbitration Act which was allowed by a Co-ordinate Bench of
this Court vide order dated 30.08.2024 (Annexure P-3) and a former Judge
of this Court was appointed as a Sole Arbitrator by way of the aforesaid
order.
3. Learned Sole Arbitrator initiated the proceedings vide
Annexure P-4 on 27.09.2024 and on that date, it was directed that the Power
of Attorneys on behalf of the parties be filed by the next date of hearing and
the counsel for the claimant (who is the respondent in the present petition)
appeared and one Inderpal Singh, Trust Engineer along with Mandeep,
Assistant, Trust Engineer also appeared and stated before the learned
Arbitrator that Executive Officer of Trust will represent all the respondents
in the matter. In the aforesaid first sitting of the learned Arbitrator, the
procedure to be followed during the course of arbitration proceedings was
also recorded in consultation with both the parties and in this way, a
procedure was formulated which is also attached vide Annexure-I of
Annexure P-4 in the present petition. The aforesaid order (Annexure P-4) is
reproduced as under:-
CR-6014-2025 (O&M) -3-
“Annexure P-4
BEFORE THE ARBITRAL TRIBUNAL COMPRISING
OF SOLE ARBITRATOR MR. JUSTICE RAJIV SHARMA
(RETD.)
Arbitration Case No. 269 of 2020
In the matter of Arbitration:
BETWEEN
Shourya Towers Pvt. Ltd. Registered Office at B-111. Sector
5, Noida, UP through its authorized representative Sh. Mohit
Garg.
....Claimant
AND
1. Jalandhar Improvement Trust, Jalandhar.
2. Chairman, Jalandhar Improvement Trust.
3. Punjab Local Body Government, Government of
Punjab,Plot No.3, Dakshin Marg, Sector 35-A,
Chandigarh
4. Director, Punjab Local Body Government, Government of
Punjab, Plot No.3, Dakshin Marg, Sector 35-A,
Chandigarh
...Respondents
Present: Mr. Himanshu Gupta, Advocate with
Mr. Ankur Jain, Director, Shourya Towers Pvt. Ltd.
for the claimant.
Mr. Inderpal Singh, Trust Engineer,
Mr. Mandeep, Assistant, Trust Engineer
for the respondents
Chandigarh.
Dated: 27
th
September, 2024
ORDER:
1. Power of Attorneys on behalf of the parties be filed by
the next date of hearing. Mr. Inderpal Singh, Trust
Engineer submits that Executive Officer of Trust will
represent all the respondents in the matter.
2. The parties in consultation with the Arbitral Tribunal
have agreed to the procedure to be followed during the
course of arbitration proceedings, the copy whereof is
annexed as Annexure A-1.
3. Declaration under Section 12 of the Arbitration and
Conciliation Act, 1996, as amended upto-date, is
annexed as Annexure-2.
4. Claim petition be filed within six weeks.
5. As agreed by the parties, the fee structure will be
CR-6014-2025 (O&M) -4-
determined on the next date of hearing.
6. With the consent of the parties, list on 14.11.2024 at
02.00 P.M. at Chandigarh Arbitration Centre (CAC),
Old District Court Building, Sector-17, Chandigarh-
160 017.
7. Both the parties are directed to deposit Rs. 24,000/-
each as administrative expenses (Rs.15,000/- each) and
sitting charges (Rs.9,000/- for six sittings) of the
Chandigarh Arbitration Centre by way of
cash/cheque/demand draft in the name of Registrar,
Punjab and Haryana, High Court, Chandigarh within 15
days from today.
Sd/-
Justice Rajiv Sharma (Retd.)
Arbitrator
Chandigarh
Dated: 27
th
September, 2024”
4. One of the headings of the aforesaid procedure in Annexure -I
was pertaining to ‘Adjournment’ at Para No.10 which provided that
normally no adjournment shall be granted but on showing sufficient cause
adjournment may be granted by the Tribunal to the party in extreme
situation. The aforesaid Para 10 of the procedure so formulated by the
learned Arbitrator in consultation with both the parties is reproduced as
under:-
“10. Normally no adjournment shall be granted. However,
on showing sufficient cause adjournment may be
granted by the Tribunal to the party in extreme
situation but party seeking adjournment shall have to
bear the expenses of the hearing adjourned.”
5. On 14.11.2024, second sitting of the learned Arbitral Tribunal
was held vide Annexure P-5 in which counsel for the claimant had appeared
but nobody had appeared on behalf of the present petitioners. By way of the
aforesaid order, two weeks’ time was granted to the claimant to file the
CR-6014-2025 (O&M) -5-
statement of the claim, which is reproduced as under:-
“Annexure P-5
Present: Ms. Sehej Sandhawalia, Advocate for
Mr. Himanshu Gupta, Advocate,
for the claimant.
None for the respondent.
Proceedings of the 2
nd
Sitting of the Arbitral Tribunal held
on November 14, 2024 at 02.00 PM at the Arbitration
Centre, Sector 17, Chandigarh.
ORDER
Ms. Sehaj Sandhawalia, Advocate prays for and is
granted two weeks time to file the statement of claim.
List on 03.12.2024 at 02.00 P.M. in the Chandigarh
Arbitration Centre, Sector 17, Chandigarh.
Both the parties are directed to deposit Rs.24,000/-
each as administrative expenses (Rs.15,000/-) and sitting
charges (Rs.9,000/- for six sittings) of the Chandigarh
Arbitration Centre by way of cash/cheque/demand draft
in the name of Registrar, Punjab and Haryana, High
Court, Chandigarh on or before the next date of hearing.
Sd/-
Justice Rajiv Sharma (Retd.)
Sole Arbitrator
Chandigarh
Dated: 14
th
November, 2024”
6. On 03.12.2024, third sitting of the learned Arbitral Tribunal
was held vide Annexure P-6 in which the claimant had filed the statement of
claim. Counsel for the claimant as well as the counsel for the petitioner-
Improvement Trust along with the Executive Officer and the Trust Engineer
were also marked present and the learned counsel for the petitioner-
Improvement Trust prayed for and was granted four weeks’ time to file the
statement of defence and counter-claim, if any. The order passed vide
Annexure P-6) is reproduced as under:-
CR-6014-2025 (O&M) -6-
“Annexure P-6
Present: Ms. Sehej Sandhawalia, Advocate with
Mr. Ankur Jain, Director and
Mr. Mohit Garg, Authorized Representative,
for the claimant.
Ms. Kavita Arora, Advocate with
Mr. Parminder Singh, Executive Officer
Mr. Inderpal Singh, Trust Engineer
for the respondent.
Proceedings of the 3
rd
Sitting of the Arbitral Tribunal held
on December 03, 2024 at 02.00 PM at the Arbitration
Centre, Sector 17, Chandigarh.
ORDER
Ms. Sehaj Sandhawalia, Advocate has filed
statement of claim. Ms. Kavita Arora prays for and is
granted four weeks’ time to file the statement of defence
and counter-claim, if any.
List on 07.01.2025 at 02.00 P.M. in the
Chandigarh Arbitration Centre, Sector 17, Chandigarh.
Both the parties have deposited Rs. 24,000/- each
towards fee of the Chandigarh Arbitration Centre today.
Sd/-
Justice Rajiv Sharma (Retd.)
Sole Arbitrator
Chandigarh
Dated: 3
rd
December, 2024”
7. Next sitting of the learned Arbitral Tribunal took place on
07.01.2025 vide Annexure P-7, in which, counsel for the claimant was
present and the aforesaid Inderpal Singh, Trust Engineer was also present,
who prayed for four weeks’ more time to file the statement of defence and
counter-claim, if any and this prayer was not opposed to by the counsel for
the claimant. Although four weeks’ time was granted but the matter was
adjourned for 01.02.2025, which was little short of four weeks because in
fact 24 days were granted. The order dated 07.01.2025 (Annexure P-7) is
reproduced as under:-
CR-6014-2025 (O&M) -7-
“Annexure P-7
Present: Mr. Avichal Sharma, Advocate
for the claimant.
Mr. Inderpal Singh, Trust Engineer
for the respondents.
ORDER
Mr. Inderpal Singh, Trust Engineer appearing on
behalf of respondents prays for four weeks’ time to file
the statement of defence and counter-claim, if any.
Prayer not opposed by opposite counsel.
List on 01.02.2025 at 02.00 P.M. in the
Chandigarh Arbitration Centre, Sector 17, Chandigarh.
Sd/-
Justice Rajiv Sharma (Retd.)
Sole Arbitrator
Chandigarh
Dated: 07
th
January, 2025”
8. On the next sitting of the learned Arbitral Tribunal, an order
was passed vide Annexure P-8 on 01.02.2025, in which counsel for the
claimant appeared but nobody had appeared on behalf of the petitioner-
Improvement Trust and the learned Arbitral Tribunal again granted two
weeks’ time to the petitioner-Improvement Trust to file the statement of
defence and the matter was adjourned for 17.02.2025. The aforesaid order
(Annexure P-8) is reproduced as under:-
“Annexure P-8
“Through Video Conferencing”
Present: Mr. Avichal Sharma Advocate, with Mr. Ankur
Jain, Director for the claimant.
None for the respondents.
Shimla:
Dated: 01
st
February, 2025
ORDER:
1. Respondents are granted two weeks time to file
statement of defence.
CR-6014-2025 (O&M) -8-
2. List on 17.02.2025 at 03.00 P.M. at Chandigarh
Arbitration Centre Sector-17 Chandigarh.
Sd/-
Justice Rajiv Sharma (Retd.)
Arbitrator
Shimla:
Dated: 01
st
February, 2025”
9. On 17.02.2025, learned counsel for the claimant as well as the
aforesaid Parminder Singh, Executive Officer and Inderpal Singh, Trust
Engineer had also appeared and it was so observed by learned Arbitral
Tribunal vide Annexure P-9 that Mr. Parminder Singh, Executive Officer
has prayed for and is granted three weeks’ time to file the statement of
defence and counter-claim, if any, by way of last opportunity. It was made
clear by learned Arbitral Tribunal that by way of an abundant precaution, in
case, the statement of defence is not filed, then the defence will be struck off
and in this way, three weeks’ more time was granted to the petitioner-
Improvement Trust and the matter was adjourned by the learned Arbitral
Tribunal for 11.03.2025. The order dated 17.02.2025 (Annexure P-9) is
reproduced as under:-
“Annexure P-9
Present: Mr. Avichal Sharma, Advocate
Mr. Ankur Jain, Director and
Mr. Mohit Garg, Authorized Representative,
for the claimant.
Mr. Parminder Singh, Executive Officer
Mr. Inderpal Singh, Trust Engineer
for the respondents.
ORDER
Mr. Parminder Singh, Executive Officer, prays for
and granted three weeks time to file the statement of
defence and counter-claim, if any by way of last
opportunity. It is made clear by way of abundant
precaution that in case the statement of defence is not
filed, the defence would be struck off.
CR-6014-2025 (O&M) -9-
The claimant has claimed a sum of
Rs.905,80,58,000/- (Rs. Nine hundred and five crores,
eighty lacs and fifty eight thousand only). The Arbitral
fee as per the Schedule IV of the Arbitration and
Conciliation Act, 1996 would be Rs.37,50,000/-. The
claimant is directed to deposit Rs. 18,75,000/-. The
respondent is also directed to deposit its share of Rs.
18,75,000/-. The Arbitral fee shall be deposited on or
before the next date of hearing.
List on 11.03.2025 at 02.00 P.M. at Chandigarh
Arbitration Centre, Sector 17, Chandigarh.
Sd/-
Justice Rajiv Sharma (Retd.)
Sole Arbitrator
Chandigarh
Dated: 17
th
February, 2025”
10. On 11.03.2025, learned counsel for the claimant had appeared
and learned Senior Advocate had also appeared on behalf of the petitioner-
Improvement Trust and submitted that the statement of defence could not be
filed due to non-engagement of an Advocate by the respondents. Learned
Arbitral Tribunal had so observed that though the Tribunal had made it clear
that in the eventuality of the statement of defence not being filed, the
defence would be struck off but in the spirit of the Arbitration and
Conciliation Act, 1996, an opportunity is granted to file the statement of
defence or counter claim, if any, subject to costs of
10,000/- within four
weeks in the interest of justice. In this way, another four weeks’ time was
granted to the petitioner-Improvement Trust. Thereafter, the matter was
adjourned to 09.04.2025. This order passed vide Annexure P-10 is
reproduced as under:-
“Annexure P-10
Present: Mr. Avichal Sharma, Advocate
Mr. Ankur Jain, Director and
Mr. Mohit Garg, Authorized Representative,
for the claimant.
CR-6014-2025 (O&M) -10-
Dr. Anmol Rattan Sidhu, Senior Advocate along with
Ms. Mandeep Kaur, Advocate
Mr. Raghav Gulati, Advocate
Mr. Kamal Gupta, Advocate
for the respondents.
Proceedings of the 4
th
Sitting of the Arbitral Tribunal held
on March 11, 2025 at 02.00 PM at the Chandigarh
Arbitration Centre.
ORDER
Dr. Anmol Rattan Sidhu, Senior Advocate submits
by way of an oral application that the statement of
defence could not be filed due to non-engagement of
Advocate by the respondents. Though, the Tribunal had
made it clear that in the eventuality of the statement of
defence not being filed, the defence would be struck off.
However, in the spirit of the Arbitration and Conciliation
Act, 1996 opportunity is granted to file the statement of
defence or counter claim, if any, subject to costs of Rs.
10,000/- within 4 weeks, in the interest of justice. The
costs would be paid to the learned counsel for the
claimant before the next date of hearing.
The claimant has deposited its share of Arbitral
fee. The respondents have not deposited their respective
share of Arbitral fee. The respondents are directed to
deposit their share of the Arbitral fee on or before the
next date of hearing.
List on 09.04.2025 at 02.00 P.M. at Chandigarh
Arbitration Centre, Sector 17, Chandigarh for filing the
statement of defence and counter-claim, if any.
Sd/-
Justice Rajiv Sharma (Retd.)
Sole Arbitrator
Chandigarh
Dated: 11
th
March, 2025”
11. On 09.04.2025, again the learned counsel for the claimant as
well as the learned Senior Counsel for the petitioner Improvement Trust
appeared and an order was passed vide Annexure P-11, which is impugned
in the present revision petition. It was so observed by the learned Arbitral
Tribunal that despite the previous order i.e. dated 11.03.2025 vide which
CR-6014-2025 (O&M) -11-
four weeks’ time was granted to the petitioner-Improvement Trust to file the
statement of defence and the counter-claim but neither the statement of
defence nor the counter-claim was filed by the respondents (who are the
Petitioners in the present petition). While referring to the earlier orders,
learned Arbitral Tribunal declined the prayer made by learned Senior
Counsel for the Petitioner-Improvement Trust for one week’s more time to
file the statement of defence and counter-claim. It was also observed in the
impugned order (Annexure P-11) that five opportunities have been granted
to the respondents (who are the Petitioners in the present petition) and
according to Section 23 of the Arbitration Act, the pleadings are to be
completed within a period of six months. It was also further observed by the
learned Arbitral Tribunal that surprisingly, even an application for
enlargement of time has not been filed and since the Improvement Trust has
not filed the statement of defence and counter-claim, their right to file the
same as per Section 25(b) of the Arbitration Act stands forfeited/closed. The
petitioner-Improvement Trust was however permitted to admit/deny the
documents filed by the claimant with the statement of claim within a period
of three weeks. The aforesaid impugned order (Annexure P-11) is
reproduced as under:-
“Annexure P-11
BEFORE THE ARBITRAL TRIBUNAL COMPRISING
OF SOLE ARBITRATOR JUSTICE RAJIV SHARMA
(RETD.)
Arbitration Case No. 269 of 2020
In the matter of Arbitration:
BETWEEN
Shourya Towers Private Limited
....Claimant
AND
Jalandhar Improvement Trust and ors.
...Respondents
CR-6014-2025 (O&M) -12-
Present: Mr. Himanshu Gupta, Advocate
Mr. Avichal Sharma, Advocate and
Mr. Ankur Jain, Director
for the claimant.
Ms. Anu Chatrath, Senior Advocate
Mr. Ratik Chatrath, Advocate
Mr. Parminder Singh Gill, Executive Officer
Mr. Inderpal Singh, Executive Engineer
for the respondents.
Proceedings of the 5
th
Sitting of the Arbitral Tribunal held
on April 09, 2025 at 01:30 PM (Room No. 5) at Chandigarh
Arbitration Centre, Sector 17, Chandigarh.
ORDER
Despite the previous order dated 11.03.2025 also
the Statement of Defence has not been filed. The
respondents were granted four weeks' time to file the
statement of defence and counter-claim, if any, on
03.12.2024. The respondents were granted four weeks
further time to file the statement of defence and counter-
claim, if any, on 07.01.2025. Neither the statement of
defence nor counter-claim was filed by the respondents.
The respondents were granted two weeks time to file
statement of defence on 01.02.2025. Mr. Parminder
Singh, Executive Officer prayed for and was granted
three weeks' time to file the statement of defence on
17.02.2025. It was also made clear that in case the
statement of defence is not filed, the defence would be
struck of. However, in the spirit of the Arbitration and
Conciliation Act, 1996, opportunity to be granted to the
respondents to file the statement of defence and counter-
claim subject to payment of Rs. 10,000/- as cost. The
statement of defence/counter-claim was not filed as
noticed hereinabove despite order dated 11.03.2025. The
cost has not been deposited by the respondents as per
statement of Sh. Avichal Sharma, Advocate for the
claimant. Ms. Anu Chatrath, Senior Advocate has
vehemently argued that one week's time be granted to file
statement of defence and counter-claim, if any. In view of
the previous orders quoted hereinabove, the prayer is
declined. The parties are to be treated fairly as per
Section 18 of the Arbitration and conciliation Act, 1996.
Five opportunities have been granted to the respondents
to file statement of defence and counter-claim. According
to Section 23 of the Act, 1996, the pleadings are to be
completed within a period of six months. Surprisingly,
even an application for enlargement of time has not heen
filed. Since the respondents have not filed the statement
of defence and counter-claim, their right to file the same
CR-6014-2025 (O&M) -13-
as per Section 25(b) stands forfeited/closed. The
respondents are permitted to admit/deny the documents
filed by the claimant with the statement of claim within
three weeks.
List on 01.05.2025 at 1:15 P.M. at the Chandigarh
Arbitration.
Sd/-
Justice Rajiv Sharma (Retd.)
Sole Arbitrator
Chandigarh
Dated: 9
th
April, 2025”
12. Thereafter, the petitioner-Improvement Trust against whom the
aforesaid impugned order dated 09.04.2025 was passed by the learned
Arbitral Tribunal filed an application for recalling of the aforesaid order vide
Annexure P-15 by taking up various grounds for recalling of the order
particularly that an Advocate could not be engaged in time because of
cumbersome procedure for appointment of an Advocate for defending the
cases of high value and the procedure which was to be adopted by the
Petitioner-Improvement Trust for the purpose of engagement of a Counsel
was also mentioned in Para No.6 of the aforesaid application. In Para No.7,
it was also stated by the petitioner-Improvement Trust that when the matter
was received in the office of the Improvement Trust, the aforesaid procedure
for assigning/appointment of an Advocate was set into motion and during
this time, the petitioner-Improvement Trust was appearing through its
concerned Officers before the Arbitral Tribunal and seeking time so that the
Advocate may be appointed at the earliest. Another ground was taken in
Para No.8 that there was a change of the earlier Chairman of the Jalandhar
Improvement Trust, who was replaced by new Chairman on 26.02.2025,
who took charge on 19.03.2025 and in the interregnum period, the
appointment process was on hold. The respondent/claimant filed reply to the
CR-6014-2025 (O&M) -14-
aforesaid application vide Annexure P-16. This application was ultimately
considered and decided by the learned Arbitral Tribunal and vide Annexure
P-18, it was dismissed on 12.08.2025. In the present revision petition, both
the impugned orders (Annexure P-11 & P-18) have been impugned by the
petitioner-Improvement Trust.
SUBMISSIONS BY LEARNED SENIOR COUNSEL FOR PETITIONE RS
13. Dr. Anmol Rattan Sidhu, learned Senior Counsel for the
petitioner assisted by Ms. Mandeep Kaur, Advocate, Ms. Sandhya Gaur,
Advocate and Mr. Raghav Gulati, Advocate submitted that the petitioner is
an instrumentality of the State and had acted in a bona fide manner while
appearing and discharging its duties for defending the interest of the
Improvement Trust. He further submitted that when on the first sitting of the
learned Arbitral Tribunal dated 27.09.2024, two officers of the Improvement
Trust had appeared before learned Arbitral Tribunal, they made a statement
before learned Arbitral Tribunal that they will represent the respondents but
in fact they were in collusion with the claimant/respondent because they did
not apprise the higher officers with regard to the pendency of the
proceedings before the learned Arbitral Tribunal and in this way, they
committed a fraud upon their own Improvement Trust by not pursuing the
aforesaid matter. He also submitted that there is no dispute that on the very
first date of hearing before learned Arbitral Tribunal, the procedure which is
to be followed during the course of arbitration proceedings was settled in
consultation with the parties but the aforesaid two officers, who are the Trust
Engineer and the Assistant, Trust Engineer were never authorized to appear
and represent the Improvement Trust and it cannot be disputed that in the
aforesaid procedure that was to be adopted, there was a Clause pertaining to
CR-6014-2025 (O&M) -15-
Adjournment that adjournment can be granted only by showing sufficient
cause.
14. Learned Senior Counsel further submitted that on the next date
of sitting of learned Arbitral Tribunal, nobody had appeared on behalf of the
Trust but when on the third sitting dated 03.12.2024, an Advocate had
appeared along with the aforesaid two officers, namely, Parminder Singh,
Executive Officer and Inderpal Singh, Trust Engineer and the attendance of
the aforesaid Advocate and officers had been recorded by learned Arbitral
Tribunal but in fact the factual position was that the aforesaid Advocate was
never authorized by the Improvement Trust to appear although in the
proceedings, learned Arbitral Tribunal has so observed that the learned
counsel for the Improvement Trust has prayed for and is granted four weeks’
time to file the statement of defence and counter-claim, if any. Learned
Senior Counsel submitted that on the next date i.e. 07.01.2025, again the
aforesaid Inderpal Singh, Trust Engineer had appeared and prayed for four
weeks’ time to file the statement of defence and counter-claim, if any, but
these officers were acting in collusion with the claimant/respondent.
Thereafter, again on 17.02.2025, the aforesaid Inderpal Singh, Trust
Engineer and Parminder Singh, Executive Officer had appeared and again
time was granted but they were playing at the hands of the
claimant/respondent.
15. Learned Senior Counsel further submitted that after adopting a
procedure for appointment of an Advocate to defend the claim on behalf of
the Improvement Trust before learned Arbitral Tribunal in a high value case,
he was appointed as an Advocate to defend the case on 12.05.2025.
However, on 11.03.2025, he had appeared on oral instructions without the
CR-6014-2025 (O&M) -16-
assistance of any officer of the Improvement Trust and had also prayed for
some time to file the statement of defence and counter-claim and four
weeks’ time was granted to him for the same. Thereafter, on 09.04.2025,
when the impugned order was passed vide Annexure P-11, another learned
Senior Advocate had appeared on behalf of the petitioner-Improvement
Trust, who sought just one week’s more time to file the statement of defence
and counter-claim, if any, but the same was declined by learned Arbitral
Tribunal by way of the aforesaid impugned order. He submitted that in this
way, technically the counsel was appointed by the Petitioner-Improvement
Trust after passing of the impugned order vide Annexure P-11 dated
09.04.2025 and although the presence of the learned Senior Counsel for the
Improvement Trust was recorded in the impugned order dated 09.04.2025 as
well as in the order dated 11.03.2025, who was appearing on oral
instructions but written order for appointment was passed on 12.05.2025 and
because of this difficulty there had been a delay in filing of the statement of
defence and counter-claim.
16. Learned Senior Counsel also submitted that from the aforesaid
circumstances, it is very clear that the delay which has occurred in filing of
the statement of defence and counter-claim was not intentional. The two
basic reasons for delay in filing of the statement of defence and counter-
claim are that firstly, when the earlier officers including Executive Officer of
the Improvement Trust had appeared for number of times, they were acting
in collusion with the respondent/claimant and when on 03.12.2024, one
Counsel had appeared, she was not authorised to appear on their behalf and
thereafter, when on the last two dates he and another Senior Counsel had
appeared on behalf of the Petitioner-Improvement Trust, they had appeared
CR-6014-2025 (O&M) -17-
on oral instructions and the appointment of an Advocate by the Improvement
Trust had taken place even after the passing of the impugned order
(Annexure P-11). The cumbersome procedure for appointment of an
Advocate in high value cases by the petitioner-Improvement Trust was also
so contained in the application for recalling of the aforesaid impugned order
whereby the procedure starts at the clerical level and goes up till the level of
concerned Minister and that was the precise reason as to why the delay had
occurred in the entire proceedings.
17. Learned Senior Counsel further submitted that when the
petitioner-Improvement Trust had filed an application for recalling the
aforesaid order (Annexure P-11) under Section 19 of the Arbitration Act,
then the grounds so taken as aforesaid were not properly appreciated by
learned Arbitral Tribunal, who declined the application by referring to
various judgments of Hon’ble Supreme Court and to the provisions of
Section 23 and Section 25(b) of the Arbitration Act and therefore, both the
impugned orders (Annexure P-11 and P-18) are liable to be set aside.
18. Learned Senior Counsel referred to various judgments of
Hon’ble Supreme Court and High Courts to substantiate his arguments. He
referred to judgment passed by Hon’ble Supreme Court in “Srei
Infrastructure Finance Limited Vs. Tuff Drilling Private Limited”, (2018)
11 SCC 470 to contend that a petition under Article 227 of the Constitution
of India is maintainable and can be entertained in the facts and
circumstances of each and every case and the jurisdiction of the High Court
to exercise its powers under Article 227 of the Constitution of India cannot
be ousted by the non obstante clause provided under Section 5 of the
Arbitration Act. He also referred to a judgment passed by the Delhi High
CR-6014-2025 (O&M) -18-
Court in CM(M) No.424 of 2021 titled as “Union of India Vs. Indian Agro
Marketing Co. Operative Limited”, decided on 02.05.2022 and also a
Division Bench judgment passed by the High Court of Gujarat in Letters
Patent Appeal No.308 of 2020 titled as “Narmada Clean-Tech & Ors. Vs.
Indian Council of Arbitration and others” decided on 30.07.2020 wherein
it was so held that a petition under Articles 226 & 227 of the Constitution of
India is certainly maintainable even against an order passed by an Arbitrator
and submitted that in that case, the order under challenge before Hon’ble
Division Bench of Gujarat High Court was against an order passed under
Section 16 of the Arbitration Act which was held to be maintainable in the
eyes of law. The relevant portion of the aforesaid judgment is reproduced as
under:-
“39. Thus, our understanding of the ratio of the
Supreme Court decision in SBP and company (supra)
is that the High Court should not interfere with each
and every order passed by the Arbitral Tribunal and
judicial intervention should be minimal. We find it
difficult to take the view interpreting the SBP and
company (supra) that the High Court has no power at
all to intervene either in exercise of its writ jurisdiction
or supervisory jurisdiction under Article 227 of the
Constitution of India with any of the orders that may
be passed by the Arbitral Tribunal or the Arbitrator.
xx xx xx xx
41. In the aforenoted paragraph, the Supreme Court
has emphatically laid down that any restriction on the
power of the High Court under Article 226 of the
Constitution, can be recognised only if it is
incorporated in any of the provisions of the
Constitution itself. In view of the above decision of the
CR-6014-2025 (O&M) -19-
Constitution Bench of the Supreme Court, it is clear
that unless the jurisdiction of this Court under Article
226 of the Constitution stands curtailed by any other
provision of the Constitution, it cannot be said that a
Petition under Article 226 of the Constitution does not
lie or this Court has no jurisdiction to interfere in
arbitration matters. The principle laid down by the
Supreme Court is that in respect of election matters,
unless an extraordinary case is made out in a given
case, a petition under Article 226 of the Constitution
should not be entertained. This clearly means that a
petition under Article 226 of the Constitution
challenging the legality of actions taken or orders
made in the course of an election to a local authority
or any other body on the ground of violation of law, is
maintainable but should not be entertained by the High
Court unless the violation of law made out is such as
would justify the interference under Article 226 of the
Constitution immediately to prevent abuse of power
and waste of public time and money and the
alternative remedy by way of Election Petition after
the elections is not an efficacious remedy. The same
principle of law should apply even to the arbitration
matters.
42. In the Union of India v. Varindera Constructions
Ltd., (2018) 7 SCC 794, the Supreme Court held:-
“12. The primary object of the arbitration is
to reach a final disposition in a speedy,
effective, inexpensive and expeditious
manner. In order to regulate the law
regarding arbitration, legislature came up
with legislation which is known as
Arbitration and Conciliation Act, 1996. In
order to make arbitration process more
effective, the legislature restricted the role of
courts in case where matter is subject to the
arbitration. Section 5 of the Act specifically
CR-6014-2025 (O&M) -20-
restricted the interference of the courts to
some extent. In other words, it is only in
exceptional circumstances, as provided by
this Act, the court is entitled to intervene in
the dispute which is the subject- matter of
arbitration. Such intervention may be before,
at or after the arbitration proceeding, as the
case may be. In short, court shall not
intervene with the subject-matter of
arbitration unless injustice is caused to
either of the parties."
43. The aforesaid observations of the Supreme Court
have been quoted with approval in a recent
pronouncement of the Supreme Court in the case of
M/s. ICOMM Tele Ltd. vs. Punjab State Water Supply
and Sewarage Board and another [Civil Appeal
No.2713 of 2019 decided on 11
th
March 2019].”
19. It was further submitted by learned Senior Counsel that high
value claim is involved in the present case and the petitioner is an
instrumentality of State being an Improvement Trust, prejudice will be
caused in case the impugned order is sustained.
SUBMISSIONS BY LEARNED SENIOR COUNSEL FOR RESPONDEN T
20. On the other hand, Mr. Chetan Mittal, learned Senior Counsel
for the respondent assisted by Mr. Himanshu Gupta, Advocate and Ms.
Sehej Sandhawalia, Advocate has vehemently opposed the present revision
petition not only on ‘maintainability’ but also on ‘entertainability’ of the
present petition on merits. While advancing the arguments, learned Senior
Counsel has submitted that the present petition which is in the nature of a
Revision Petition under Article 227 of the Constitution of India is not
entertainable by this Court because the same is against an interlocutory order
which has been passed by learned Arbitral Tribunal and it is not a case
where the petitioner is left remediless. He submitted that the petitioner has
CR-6014-2025 (O&M) -21-
the remedy of challenging the award at the relevant stage under the
provisions of Section 34 of the Arbitration Act. He further contended that
the sole recourse available for challenging a procedural/interlocutory order
passed by learned Arbitrator is by invoking Section 37 of the Arbitration and
Conciliation Act, subject to the limitation that such challenge must fall
within the parameters prescribed under the said provision. However, the
present procedural order cannot be challenged under the provisions of
Section 37 of the Arbitration Act because the order passed under Section
25(b) of the Arbitration Act does not find mention in Section 37 of the
Arbitration Act.
21. Learned Senior Counsel further submitted that it is a settled law
that the Arbitration Act is a self-contained code and although the
proceedings of learned Arbitral Tribunal are quasi judicial in nature but an
Arbitrator is appointed in pursuance of a contract between the parties and the
only method available for challenging interlocutory/procedural orders passed
by learned Arbitral Tribunal can be either under Section 34 once the award
is passed or Section 37 of the Arbitration Act as the case may be when it is
specifically provided therein. Recourse to invoking extraordinary
jurisdiction of the High Court under Article 226/227 of the Constitution of
India is permissible only when there is lack of jurisdiction proved on record
or at the most in the rare circumstances but not in the ordinary course and
therefore, the present petition is liable to be dismissed on the ground of
being not entertainable.
22. Learned Senior Counsel also submitted that there is no dispute
with regard to the proposition of law that Article 227 of the Constitution of
India provides for a Constitutional mandate and powers of the High Court
CR-6014-2025 (O&M) -22-
cannot be curtailed by any statutory provision but at the same time when the
petitioner is not able to show any inherent defect in jurisdiction of the
Arbitral Tribunal then the other statutory provisions governing the parties
will come into play and therefore, in the present case, the provisions of
Section 5 of the Arbitration Act will come into play.
23. He further submitted that in any event, the present revision
petition is not sustainable. It was pointed out that when the petitioner filed
the application (Annexure P-15) seeking recall of the order dated 09.04.2025
(Annexure P-11), it was specifically averred in Para No.7 thereof that the
process for appointment of advocates had already been initiated upon receipt
of notice by the Improvement Trust. During this period, the Improvement
Trust continued to appear before the learned Arbitral Tribunal through its
concerned officers and sought adjournments, as they believed that the
appointment of counsel would be effected shortly. Learned Senior Counsel
heavily relied upon the aforesaid Para No.7 of the application which was
filed by the petitioner itself, which is reproduced as under:-
“7. It is submitted that once the matter was received at
the office of Respondent No.1, the above-mentioned
procedure was set into motion for appointment of
advocates. During this time, the Respondent was
appearing through its concerned officers before the
Hon’ble Arbitral Tribunal and seeking time as it
expected the appointment of advocates to take place
at the earliest.”
24. Learned Senior Counsel submitted that by way of the
categorical averment made by the petitioner-Improvement Trust itself in its
own application that it was appearing through its officers and awaiting the
appointment of advocates, the Improvement Trust cannot now take an
CR-6014-2025 (O&M) -23-
inconsistent stand by submitting that the officers, who had appeared, were in
collusion with the claimant/respondent and that they were not authorized to
appear. He also submitted that not only this, the aforesaid stand taken by the
learned Senior Counsel for the petitioner that the aforesaid officers, who had
been appearing on the earlier dates, were not authorized to appear, was never
taken before learned Arbitral Tribunal at the time of filing of the application
under Section 19 of the Arbitration Act for recalling the impugned order and
it has only been taken for the first time in the present Revision Petition
before this Court. Therefore, the revision petition otherwise also would not
be sustainable because the scope of a revision petition is very limited and it
only lies when the High Court finds any perversity or lack of jurisdiction or
a defect or error in the impugned order that a revision petition can be
entertained, whereas in the present case on the one hand in the application
under Section 19 of the Arbitration Act, the Improvement Trust had taken a
stand that its officers had been appearing whereas on the other hand at the
time of filing of the present revision petition, an inconsistent stand has been
taken that the officers committed a fraud and they are in collusion with the
claimant which cannot be entertained in a revisional jurisdiction and
therefore, on this ground as well, the present revision petition is liable to be
dismissed.
25. He further submitted that another ground which has been taken
in the application was with regard to change of the Chairman also cannot
become a ground for seeking a window for challenging the order passed by
learned Arbitral Tribunal straight away by filing a revision petition before
this Court.
26. Learned Senior Counsel further submitted that by way of the
CR-6014-2025 (O&M) -24-
impugned order (Annexure P-11), a right of filing of the statement of
defence and counter-claim has been forfeited rightly under Section 25(b)
read with Section 23(4) of the Arbitration Act. He submitted that the
aforesaid Section 23(4) of the Arbitration Act was incorporated by way of
amendment No.33 of 2019 w.e.f. 30.08.2019 whereby a time-line which is
mandatory in nature has been set to be maximum six months from the date
of receipt of notice of appointment by learned Arbitrator. He further
submitted that in the present case, the total time-line prescribed has been
exceeded and even the difference between the date of first sitting which was
held on 27.09.2024 by learned Arbitral Tribunal and the date of passing of
the impugned order (Annexure P-11) is 09.04.2025 when the defence was
struck off is itself beyond the statutory limit of 6 months, being a duration of
approx. 6 months and 13 days. He submitted that learned Arbitrator had
issued a notice to the parties on 07.09.2024 which would therefore mean that
learned Arbitrator had received the notice of his appointment much prior to
that and in this regard, he has produced a photocopy of the notice dated
07.09.2024 so issued by the learned Arbitrator before this Court and a copy
of the same has also been supplied to learned Senior Counsel for the
petitioner. This notice which was sent by learned Arbitrator to all the parties
is hereby taken on record as Mark ‘X’. Registry is directed to tag the same at
an appropriate place in the file and also paginate the same.
27. In order to substantiate his arguments, he submitted that on
07.09.2024 learned Arbitrator had sent notices through Speed Post to all the
parties which would clearly mean that he received notice from the Court
vide which he was appointed as Arbitrator prior to that and in this way even
assumingly as per Section 23(4) of the Arbitration Act, the period is to be
CR-6014-2025 (O&M) -25-
reckoned from 07.09.2024 still it comes out to be 7 months and 3 days. In
any eventuality the period exceeded 6 months because the time period
between the first procedural order dated 27.09.2024 and the impugned order
dated 09.04.2025 itself exceeded 6 months. He thereafter referred to the
provisions of Section 23(4) of the Arbitration Act to contend that the
aforesaid provision is mandatory in nature and provides that the statement of
claim and defence under Section 23(4) of the Arbitration Act shall be
completed within a period of six months from the date the arbitrator or all
the arbitrators, as the case may be, receive notice, in writing, of their
appointment and no time can be extended in contradistinction with the
provision of Section 29(A) of the Arbitration Act because under the
provision of Section 29(A) of the Arbitration Act when the time-line for
learned Arbitral Tribunal is to be extended then a window for extension has
been provided by the legislature itself whereas such a window has not been
provided by legislature under Section 23(4) of the Arbitration Act and
therefore, there was neither any scope of further extension nor any such
application was filed by the petitioner before learned Arbitral Tribunal for
the extension or enlargement of time which is so recorded in the impugned
order itself. He further submitted that Section 25(b) of the Arbitration Act
under which learned Arbitral Tribunal has forfeited the right to file
statement of defence and counter-claim provides that unless otherwise
agreed by the parties, where, without showing sufficient cause, the
respondent fails to communicate his statement of defence in accordance with
sub-section (1) of Section 23, the arbitral tribunal shall continue the
proceedings without treating that failure in itself as an admission of the
allegations by the claimant [and shall have the discretion to treat the right of
CR-6014-2025 (O&M) -26-
the respondent to file such statement of defence as having been forfeited].
He submitted that the expression ‘sufficient cause’ can be shown only when
the total period is less than six months but when the total period itself has
exceeded six months, then the provisions of Section 23(4) of the Arbitration
Act will come into play and therefore, a statutory bar is created and in this
way, the learned Arbitrator has rightly forfeited the claim. He also submitted
that not only this, five opportunities were granted by learned Arbitral
Tribunal as per the aforesaid procedural orders which have been reproduced
above and after the expiry of the aforesaid period of six months, learned
Arbitral Tribunal has rightly struck off the right to file the statement of
defence and counter-claim. He also submitted that the aforesaid provision of
Section 23(4) of the Arbitration Act is mandatory. In this regard, learned
Senior Counsel has referred to the judgment passed by a Division Bench of
Madras High Court in A.R.B. O.P. (Com. Div.) No.185 of 2023 titled as “N.
Ramaswamy Vs. R. Bhojan”, decided on 14.07.2023.
28. Learned Senior Counsel also submitted that assumingly even
for the sake of arguments that on sufficient cause being shown under Section
25 of the Arbitration Act, the time limit can be enlarged, still the petitioner
does not satisfy the aforesaid expression ‘sufficient cause’ because the
sufficient cause as so projected by the petitioner is of non-engagement of
advocates and allegation of collusion of their own officers with the
respondent/claimant and such a ground taken either before learned Arbitral
Tribunal or in the present revision petition cannot constitute a sufficient
cause within the meaning of the expression ‘sufficient cause’ under Section
25 of the Arbitration Act.
29. Learned Senior Counsel also relied upon various judgments of
CR-6014-2025 (O&M) -27-
Hon’ble Supreme Court and High Courts to substantiate his arguments. He
referred to a judgment passed by a Seven-Judge Constitution Bench of
Hon’ble Supreme Court in “M/s SBP & Co. Vs. Patel Engineering Ltd. &
Another” (2005) 8 SCC 618, to contend that although Hon’ble Supreme
Court was dealing with the issue pertaining to Section 11 of the Arbitration
Act and whether such orders are judicial or administrative in nature, but at
the same time, it was also observed by Hon’ble Supreme Court that once the
matter reaches Arbitral Tribunal or Sole Arbitrator, the High Court would
not interfere with the orders passed by Arbitral Tribunal or the Arbitrator
during the course of arbitration proceedings and the parties could approach
the Court only in terms of Section 34 once the award is passed or under
Section 37 of the Arbitration Act. He further referred to other judgments
passed by Hon’ble Supreme Court in “M/s Deep Industries Limited Vs. Oil
and Natural Gas Corporation Limited and another”, 2020(15) SCC 706
and “Bhaven Construction through Authorized Signatory Premji Bhai K.
Shah Vs. Executive Engineers, Sardar Sarovar Narmada Nigam Limited
and another” (2022) 1 SCC 75 wherein it was held that only in exceptional
rarity when the parties are left remediless or there is a clear bad faith then
such an indulgence can be granted but in the present case, there was neither
any exceptional rarity nor the parties were left remediless nor there was a
clear bad faith although there was an allegation pertaining to the officers,
who had earlier appeared to represent the Improvement Trust. He further
submitted that the aforesaid element of bad faith was taken for the first time
before this Court in a revision petition but was never raised before learned
Arbitral Tribunal at the time of filing the application for recalling the order
and therefore, even that ground is not available to the petitioner.
CR-6014-2025 (O&M) -28-
ANALYSIS OF SUBMISSIONS
30. I have heard the learned counsels for the parties at length.
31. The aforesaid dates and the facts pertaining to passing of the
orders by learned Arbitral Tribunal are not in dispute. Before proceeding
further, it will be just and proper to refer to the provisions of law and also
the case law on this subject. Sections 5, 23 and 25 of the Arbitration Act are
reproduced as under:-
5. Extent of judicial intervention.-Notwithstanding
anything contained in any other law for the time being in
force, in matters governed by this Part, no judicial
authority shall intervene except where so provided in this
Part.
xx xx xx xx
23. Statements of claim and defence.-
(1) Within the period of time agreed upon by the
parties or determined by the arbitral tribunal, the
claimant shall state the facts supporting his
claim, the points at issue and the relief or remedy
sought, and the respondent shall state his defence
in respect of these particulars, unless the parties
have otherwise agreed as to the required
elements of those statements.
(2) The parties may submit with their statements
all documents they consider to be relevant or
may add a reference to the documents or other
evidence they will submit.
1[(2A) The respondent, in support of his case,
may also submit a counterclaim or plead a set-
off, which shall be adjudicated upon by the
arbitral tribunal, if such counterclaim or set-off
falls within the scope of the arbitration
agreement.] 1. Ins. by Act 3 of 2016, s. 11 (w.e.f.
CR-6014-2025 (O&M) -29-
23-10-2015).
(3) Unless otherwise agreed by the parties, either
party may amend or supplement his claim or
defence during the course of the arbitral
proceedings, unless the arbitral tribunal
considers it inappropriate to allow the
amendment or supplement having regard to the
delay in making it.
[(4) The statement of claim and defence under
this section shall be completed within a period of
six months from the date the arbitrator or all the
arbitrators, as the case may be, received notice,
in writing of their appointment.]
xx xx xx xx
25. Default of a party.- Unless otherwise agreed by the
parties, where, without showing sufficient cause,-
(a) the claimant fails to communicate his
statement of claim in accordance with sub-
section (1) of section 23, the arbitral tribunal
shall terminate the proceedings;
(b) the respondent fails to communicate his
statement of defence in accordance with sub-
section (1) of section 23, the arbitral tribunal
shall continue the proceedings without treating
that failure in itself as an admission of the
allegations by the claimant 3[and shall have the
discretion to treat the right of the respondent to
file such statement of defence as having been
forfeited].
(c) a party fails to appear at an oral hearing or
to produce documentary evidence, the arbitral
tribunal may continue the proceedings and make
the arbitral award on the evidence before it.”
CR-6014-2025 (O&M) -30-
32. Section 5 of the Arbitration Act provides for a non obstante
clause giving the extent of judicial intervention and provides that
notwithstanding anything contained in any other law for the time being in
force, in matters governed by this Part, no judicial authority shall intervene
except where so provided in this Part. The aforesaid provision therefore
clearly provides that a judicial authority will not intervene unless it is so
provided in this part. Section 23 of the Arbitration Act provides for
‘Statement of claim and defence’. Section 23(4) of the Arbitration Act was
inserted by way of an amendment in the year 2019 w.e.f. 30.08.2019 which
provides for a time framework that the statement of claim and defence under
section 23 shall be completed within a period of six months from the date
the arbitrator or all the arbitrators, as the case may be, received notice, in
writing of their appointment. The factual position with regard to time period
which exceeded six months is not in dispute. From the date when learned
Arbitrator sent notice vide Mark ‘X’ dated 07.09.2024, the total days till the
time of passing of the impugned order dated 09.04.2025 (Annexure P-11) is
7 months and 3 days and from the date on which the first procedural order
was passed on 27.09.2024 and 09.04.2025 when the impugned order was
passed, the total difference between the days is 6 months and 13 days.
33. Section 25 of the Arbitration Act provides for consequence of
default of parties and Clause (b) of Section 25 provides that if the respondent
fails to communicate his statement of defence in accordance with sub-
section (1) of section 23, the arbitral tribunal shall continue the proceedings
without treating that failure in itself as an admission of the allegations by the
claimant and shall have the discretion to treat the right of the respondent to
file such statement of defence as having been forfeited. In the present case,
CR-6014-2025 (O&M) -31-
learned Arbitral Tribunal after the expiry of six months while referring to the
earlier orders forfeited the right of the petitioner-Improvement Trust to file
the statement of defence and the counter-claim under Section 25(b) which
would also have to be read along with Section 23(4) of the Arbitration Act
because the time-framework had exceeded.
34. The case law on the subject as so referred to by the learned
Senior Counsels for the parties has to be discussed at this stage. A Seven
Judges Constitution Bench of Hon’ble Supreme Court in M/s SBP &
Company Vs. Patel Engineering Ltd. & Another’s case (Supra) was
dealing with the nature of the orders passed under Section 11 of the
Arbitration Act. In Paras No.45, 46 & 47(iv) the scope of judicial
intervention was also discussed. It was so observed that Arbitral Tribunal is
a creation of an Agreement between the parties even though it is constituted
on the basis of order passed by the Chief Justice/High Court if any occasion
arises but the parties submit themselves to the Arbitrator on the basis of
Agreement between the parties which is therefore contractual in nature.
Rationale and objective of minimising the judicial intervention was also
discussed. In the concluding part, it was so observed that once the matter
reaches Arbitral Tribunal or Sole Arbitrator then the High Court would not
interfere with the order passed by Arbitrator or Arbitral Tribunal during the
course of the arbitration proceedings and the parties could approach the
Court only in terms of Section 37 of the Arbitration Act or in terms of
Section 34 of the Arbitration Act. Para Nos.45, 46 & 47(iv) are reproduced
as under:-
“45. It is seen that some High Courts have proceeded on
the basis that any order passed by an Arbitral Tribunal
CR-6014-2025 (O&M) -32-
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.
CR-6014-2025 (O&M) -33-
47. We, therefore, sum up our conclusions as follows:
(i) to (v) xx xx xx xx
(vi) Once the matter reaches the Arbitral Tribunal or the
sole arbitrator, the High Court would not interfere with
the orders passed by the arbitrator or the Arbitral
Tribunal during the course of the arbitration proceedings
and the parties could approach the Court only in terms of
Section 37 of the Act or in terms of Section 34 of the Act.
(vii) to (xii) xx xx xx xx”
35. In M/s Deep Industries Limited’s case (Supra) order passed by
the learned Arbitral Tribunal under Section 17 of the Arbitration Act for
staying the black-listing order was challenged before the learned City Civil
Court which dismissed the appeal under Section 37 of the Arbitration Act.
This order under Section 37 of the Arbitration Act was challenged under
Article 227 of the Constitution of India and it was allowed by the High
Court and the order of the City Civil Court was set aside. Thereafter, the
Contractor assailed the same before Hon’ble Supreme Court in the aforesaid
judgment. Argument was raised regarding the maintainability of filing the
said petition under Article 227 of the Constitution of India by referring to
Section 5 of the Arbitration Act as well as the judgment of Hon’ble Supreme
Court in M/s SBP & Company Vs. Patel Engineering Ltd. & Another’s
case (Supra). Another argument was also raised by the appellant that it was
not a case of lack of jurisdiction. Hon’ble Supreme Court held that against
the order of Section 37 of the Arbitration Act, no petition under Article 226
& 227 of the Constitution of India can be filed. It was further held that
although Article 227 of the Constitution of India remained untouched by the
provisions of Section 5 of the Arbitration Act but it is only when the orders
CR-6014-2025 (O&M) -34-
that lack patent inherent jurisdiction that the provisions of Article 227 of the
Constitution of India can be invoked. It was also discussed that the
legislative policy pertaining to general revisional jurisdiction under Section
115 of the Code of Civil Procedure that revision under Section 115 of the
Code of Civil Procedure lies only against the final order and not against the
interlocutory orders, is also relevant. In the present petition as well, the
impugned orders are not the final orders and are only interlocutory or
procedural orders. Para Nos.16, 17 & 24 are reproduced as under:-
“16. Most significant of all is the non-obstante clause
contained in Section 5 which states that
notwithstanding anything contained in any other law,
in matters that arise under Part I of the Arbitration
Act, no judicial authority shall intervene except where
so provided in this Part. Section 37 grants a
constricted right of first appeal against certain
judgments and orders and no others. Further, the
statutory mandate also provides for one bite at the
cherry, and interdicts a second appeal being filed (See
Section 37(2) of the Act)
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 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
CR-6014-2025 (O&M) -35-
interfering with the same, taking into account the
statutory policy as adumbrated by us herein above so
that interference is restricted to orders that are passed
which are patently lacking in inherent jurisdiction.
xx xx xx xx
24. Mr Rohatgi is also correct in pointing out that
the legislative policy qua the general revisional
jurisdiction that is contained by the amendments made
to Section 115 CPC should also be kept in mind when
the High Courts dispose of petitions filed under Article
227. The legislative policy is that no revision lies if an
alternative remedy of appeal is available. Further,
even when a revision does lie, it lies only against a
final disposal of the entire matter and not against
interlocutory orders. These amendments were
considered in Tek Singh v. Shashi Verma 18 in which
this Court adverted to these amendments and then
stated: (SCC p. 681, paras 5-6)
"5. ..….A reading of this proviso will show
that, after 1999, revision petitions filed under
Section 115 CPC are not maintainable against
interlocutory orders.
6. …..Even otherwise, it is well settled that the
revisional jurisdiction under Section 115 CPC is to
be exercised to correct jurisdictional errors only.
This is well settled. In DLF Housing &
Construction Co. (P) Ltd. v. Sarup Singh 19 this
Court held: (SCC pp. 811-12, para 5)
“5. …The position thus seems to be firmly
established that while exercising the jurisdiction
under Section 115, it is not competent to the High
Court to correct errors of fact however gross or
even errors of law unless the said errors have
relation to the jurisdiction of the Court to try the
CR-6014-2025 (O&M) -36-
dispute itself. Clauses (a) and (b) of this section on
their plain reading quite clearly do not cover the
present case. It was not contended, as indeed it was
not possible to contend, that the learned Additional
District Judge had either exercised a jurisdiction
not vested in him by law or had failed to exercise a
jurisdiction so vested in him, in recording the order
that the proceedings under reference be stayed till
the decision of the appeal by the High Court in the
proceedings for specific performance of the
agreement in question. Clause (c) also does not
seem to apply to the case in hand. The words
"illegally" and "with material irregularity" as used
in this clause do not cover either errors of fact or of
law; they do not refer to the decision arrived at but
merely to the manner in which it is reached. The
errors contemplated by this clause may, in our
view, relate either to breach of some provision of
law or to material defects of procedure affecting the
ultimate decision. and not to errors either of fact or
of law, after the prescribed formalities have been
complied with. The High Court does not seem to
have adverted to the limitation imposed on its
power under Section 115 of the Code. Merely
because the High Court would have felt inclined,
had it dealt with the matter initially, to come to a
different conclusion on the question of continuing
stay of the reference proceedings pending decision
of the appeal, could hardly justify interference on
revision under Section 115 of the Code when there
was no illegality or material irregularity committed
by the learned Additional District Judge in his
manner of dealing with this question. It seems to us
that in this matter the High Court treated the
CR-6014-2025 (O&M) -37-
revision virtually as if it was an appeal.”
36. In Bhaven Construction’s case (Supra) an application was
filed before learned Arbitrator under Section 16 of the Arbitration Act
disputing the appointment of Sole Arbitrator. Against the aforesaid order in
the application of Section 16 of the Arbitration Act, a petition under Articles
226/227 of the Constitution of India was filed in the High Court and the
learned Single Judge dismissed the same. However, on assailing the same by
filing a Letter Patent Appeal, it was allowed and in this way an SLP was
filed. It was held that in exceptional rarity when a party is left remediless
under a statute or there is a clear bad faith then the provisions of Articles
226/227 of the Constitution of India can be resorted. Para Nos.11, 12, 13,
14, 18, 19 & 20 are reproduced as under:-
“11. Having heard both the parties and perusing the
material available on record, the question which needs
to be answered is whether the arbitral process could
be interfered under Articles 226/227 of the
Constitution, and under what circumstance?
12. We need to note that the Arbitration Act is a
code in itself. This phrase is not merely perfunctory,
but has definite legal consequences. One such
consequence is spelled out under section 5 of the
Arbitration Act, which reads as under
“5. Extent of judicial intervention.-
Notwithstanding anything contained in any
other law for the time being in force, in
matters governed by this Part, no judicial
authority shall intervene except where so
provided in this Part."
(emphasis supplied)
The non-obstante clause is provided to uphold
the intention of the legislature as provided in the
Preamble to adopt UNCITRAL Model Law and Rules,
to reduce excessive judicial interference which is not
CR-6014-2025 (O&M) -38-
contemplated under the Arbitration Act.
13. The Arbitration Act itself gives various
procedures and forums to challenge the appointment
of an arbitrator. The framework clearly portrays an
intention to address most of the issues within the ambit
of the Act itself, without there being scope for any
extra statutory mechanism to provide just and fair
solutions.
14. Any party can enter into an arbitration
agreement for resolving any disputes capable of being
arbitrable. Parties, while entering into such
agreements, need to fulfil the basic ingredients
provided under Section 7 of the Arbitration Act.
Arbitration being a creature of contract, gives a
flexible framework for the parties to agree for their
own procedure with minimalistic stipulations under the
Arbitration Act.
xx xx xx xx
18. In any case, the hierarchy in our legal
framework, mandates that a legislative enactment
cannot curtail a Constitutional right. In Nivedita
Sharma v. Cellular Operators Association of India,
(2011) 14 SCC 337, this Court referred to several
judgments and held:
"11. We have considered the respective
arguments/submissions. There cannot be any
dispute that the power of the High Courts to
issue directions, orders or writs including
writs in the nature of habeas corpus,
certiorari, mandamus, quo warranto and
prohibition under Article 226 of the
Constitution is a basic feature of the
Constitution and cannot be curtailed by
parliamentary legislation - L. Chandra Kumar
CR-6014-2025 (O&M) -39-
v. Union of India, (1997) 3 SCC 261. However,
it is one thing to say that in exercise of the
power vested in it under Article 226 of the
Constitution, the High Court can entertain a
writ petition against any order passed by or
action taken by the State and/or its
agency/instrumentality or any public authority
or order passed by a quasi-judicial
body/authority, and it is an altogether different
thing to say that each and every petition filed
under Article 226 of the Constitution must be
entertained by the High Court as a matter of
course ignoring the fact that the aggrieved
person has an effective alternative remedy.
Rather, it is settled law that when a statutory
forum is created by law for redressal of
grievances, a writ petition should not be
entertained ignoring the statutory
dispensation.”
(emphasis supplied)
It is therefore, prudent for a Judge to not
exercise discretion to allow judicial
interference beyond the procedure established
under the enactment. This power needs to be
exercised in exceptional rarity, wherein one
party is left remediless under the statute or a
clear 'bad faith' shown by one of the parties.
This high standard set by this Court is in terms
of the legislative intention to make the
arbitration fair and efficient.
19. In this context we may observe Deep Industries
Ltd. v. ONGC wherein interplay of Section 5 of the
Arbitration Act and Article 227 of the Constitution
was analysed as under: (SCC p. 714, paras 16-17)
CR-6014-2025 (O&M) -40-
"16. Most significant of all is the non obstante
clause contained in Section 5 which states that
notwithstanding anything contained in any
other law, in matters that arise under Part I of
the Arbitration Act, no judicial authority shall
intervene except where so provided in this
Part. Section 37 grants a constricted right of
first appeal against certain judgments and
orders and no others. Further, the statutory
mandate also provides for one bite at the
cherry, and interdicts a second appeal being
filed [see Section 37(2) of the Act].
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 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."
(emphasis supplied)
CR-6014-2025 (O&M) -41-
20. In the instant case, Respondent 1 has not been
able to show exceptional circumstance or "bad faith"
on the part of the appellant, to invoke the remedy
under Article 227 of the Constitution. No doubt the
ambit of Article 227 is broad and pervasive, however,
the High Court should not have used its inherent
power to interject the arbitral process at this stage. It
is brought to our notice that subsequent to the
impugned order of the sole arbitrator, a final award
was rendered by him on merits, which is challenged
by Respondent 1 in a separate Section 34 application,
which is pending.”
37. The relevant paragraphs i.e. Para No.9.5, 9.6, 9.8 & 9.9 of the
judgment passed by a Division Bench of Madras High Court in N.
Ramaswamy’s Case (Supra) which pertains to discussion on Section 23(4)
of the Arbitration Act are also reproduced as under:-
“9.5. Learned counsel, thereafter, pressed into
service, National Thermal Power Corporation Ltd. v.
Siemens Atkeingesellischaft, (2007) 4 SCC 451. We
are of the considered view that Siemens would also
not come to the aid of appellant as it was rendered
prior to 23.10.2015. To be noted, Siemens was
rendered by Hon'ble Supreme Court on 28.02.2007.
Prior to 23.10.2015, there was no Section 29A in the
A & C Act. Section 29A of A & C Act puts in place a
timeline for Arbitral Tribunals and makes it very clear
that Arbitral Tribunals (Domestic Arbitration's)
should make awards within a period of twelve months
from the date of completion of pleadings, ie.,
'completion of pleadings within the meaning of sub-
section (4) of Section 23 of A & C Act.
9.6. As regards Section 29A of A & C Act, about
which, there is allusion supra, if an Arbitral Tribunal
CR-6014-2025 (O&M) -42-
does not make an award within a period of twelve
months from the date of completion of pleadings
under sub-section (4) of Section 23, the mandate of
Arbitral Tribunal snaps. Therefore, an Arhitral
Tribunal is under a statutory compulsion ie., a
statutory mandate, to render the award within this 12
months timeline. We are acutely conscious that this 12
months is extendable by another six months, but, that
is by consent of the parties and we are also acutely
conscious that the mandate that snaps can be
resuscitated, but, that can be only by way of a judicial
order to be made by a Court under Section 29A(4) of
A & C Act, but the bottom line is, an Arbitral Tribunal
should make an award within twelve months from the
date of completion of pleadings within the meaning of
Section 23(4) and this is the position before AT on the
date of impugned order. It has not changed today
either. Parties consenting for extending timeline by
six months, resuscitation by judicial order (post such
six months or parties not consenting for such
extension as the case may be) were/are all in the
nature of windows and venturing into the same
tantamount to venturing into the realm of surmises
and conjectures.
xx xx xx xx
9.8. At this juncture, we deem it appropriate to write
that timelines qua A & C Act have to be applied very
rigidly. Comprehensive view of the eco-system of the
statute, Le., A & C Act, will make it clear that
timelines have been prescribed at every stage and
therefore, timelines are sublime legal philosophy
underlying the statute and are also salutary principles
guiding A & C Act. To expatiate a little on this, we
deem it appropriate to say that timelines have been
CR-6014-2025 (O&M) -43-
prescribed for completion of pleadings, for award to
be rendered by AT within a period of twelve months
from the date of completion of pleadings (albeit with
the option to extend it by six months by consent of
parties and to resuscitate the mandate by a judicial
order), a consequence of snapping of mandate is
provided, if award is not made within twelve months.
Thereafter, if the award is to be challenged under
Section 34, the same has to be done within three
months from the date on which the party making the
Section 34 application, received the arbitral award or
in cases where a request is made under Section 33,
the date on which the request was disposed by the
Arbitral Tribunal. Suffice to say, it is three months for
the protagonist of a Section 34 petition. This is vide
sub-Section (3) of Section 34. The proviso to sub-
section (3) to Section 34 puts in a cap qua
condonation of delay and the cap is of 'further 30
days. Therefore, beyond three months and 30 days
from the date of receipt of award, a party cannot
challenge an arbitral award. In this regard, we deem
it appropriate to remind ourselves that Hon'ble
Supreme Court, in Union of India v. Simplex
Infrastructures Ltd., (2017) 14 SCC 225, has made it
clear that even one day delay beyond three months
and 30 days is not condonable. Thereafter, in a recent
judgment in Government of Maharashtra v. Borse
Brothers Engineers and Contractors Pvt. Ltd., (2021)
6 SCC 460, Hon'ble Supreme Court has extended this
principle to the Section 37 Court also.
9.9. We find that the timeline under Section 29-A has
a window for extension. As already alluded to supra,
the 12 months timeline can be extended by a further
period of six months by consent of parties and
CR-6014-2025 (O&M) -44-
thereafter, the mandate of the AT which snaps, can be
resuscitated by a judicial order of the Court under
Section 29A(4), about which also, there is allusion in
paragraph 9.6, supra but the point is, there is no such
window as regards Section 23(4).”
38. In Srei Infrastructure Finance Limited Vs. Tuff Drilling
Private Limited’s case (Supra) as so relied upon by learned Senior Counsel
for the petitioner, Hon’ble Supreme Court framed three issues in Para
No.12.1. Firstly as to whether the Arbitral Tribunal which has terminated the
proceeding under Section 25(a) due to non-filing of claim by the claimant
has jurisdiction to consider the application for recall of the order terminating
the proceedings on sufficient cause being shown by the claimant or not.
Secondly, whether the order passed by Arbitral Tribunal under Section 25(a)
terminating the proceeding is amenable to jurisdiction of the High Court
under Article 227 of the Constitution of India or not and thirdly, whether the
order passed under Section 25(a) terminating the proceeding is an award
under the Arbitration Act so as to be amenable to the remedy under Section
34 of the Act or not. Hon’ble Supreme Court in the aforesaid judgment
answered the first issue that recalling application is permissible under the
law. So far as the remaining two issues as aforesaid are concerned, the same
were not answered and it was so observed in view of the 1
st
issue being
answered that Arbitral Tribunal has jurisdiction to consider an application
for recalling of an order terminating the proceeding, it was not necessary to
enter into issue number (ii) and (iii). In this way, the issue as to whether the
order passed under Section 25(a) of the Arbitration Act terminating the
proceeding is
amenable to the jurisdiction of the High Court under Article
CR-6014-2025 (O&M) -45-
226 of the Constitution of India was not answered by Hon’ble Supreme
Court in the aforesaid judgment. Para No.12.1, 12.2, 12.3 and 35 are
reproduced as under:-
“12. We have considered the submissions of learned
counsel for the appellant and learned amicus curiae
and have perused the record. From the submissions,
following issues arise for consideration in this Civil
Appeal:-
1) Whether arbitral tribunal which has terminated the
proceeding under Section 25(a) due to non filing of
claim by claimant has jurisdiction to consider the
application for recall of the order terminating the
proceedings on sufficient cause being shown by the
claimant?
2) Whether the order passed by the arbitral tribunal
under Section 25(a)terminating the proceeding is
amenable to jurisdiction of High Court under Article
227 of the Constitution of India?
3) Whether the order passed under Section 25(a)
terminating the proceeding is an award under the
1996 Act so as to amenable to the remedy under
Section 34 of the Act?
xx xx xx xx
35. Coming to Issue No. 2 and 3, in view of what we
have said regarding Issue No. 1 that arbitral tribunal
has jurisdiction to consider an application for recall
of order terminating the proceedings under Section
25(a), it is not necessary for us to enter into Issue No.
2 and 3 for purposes of this case. For deciding the
present Civil Appeal, our answer to Issue No.1 is
sufficient to dispose of the matter.”
39. A Division Bench of Delhi High Court in “ATV Projects India
CR-6014-2025 (O&M) -46-
Limited Vs. Indian Oil Corporation Ltd. And Another”, 2013 SCC Online
Del 1669 also dealt with this issue pertaining to whether a petition under
Article 226/227 of the Constitution of India could be maintainable or not.
The learned Single Judge intervened under the aforesaid provisions but on
appeal before a Division Bench, the LPA was allowed and the order passed
by learned Single Bench was set aside.
40. Recently, another Seven Judges Constitution Bench of Hon’ble
Supreme Court in “Interplay Between Arbitration Agreements Under
Arbitration and Conciliation Act, 1996 and Stamp Act, 1899, in Re:”,
(2024) 6 SCC 1 again while largely dealing with provisions of Section 11 of
the Arbitration Act also discussed the provision of Section 5 of the
Arbitration Act. It was observed that one of the objectives of the Arbitration
Act was to minimize the supervisory role of Courts in the arbitration
proceedings. The principle of minimum judicial interference was also
discussed and it was so observed that the principle of judicial non-
interference in arbitration proceedings respects the autonomy of the parties
to determine the arbitral procedures and this principle has also been
incorporated in international instruments, including the New York
Convention and the Model Law. Hon’ble Supreme Court observed that one
of the main objectives of the Arbitration Act is to minimize the supervisory
role of Courts in the arbitral process and party autonomy and settlement of
disputes by an arbitral tribunal are the hallmarks of arbitration law. Section 5
gives effect to the true intention of the parties to have their disputes resolved
through arbitration in a quick, efficient, and effective manner by minimizing
judicial interference in the arbitral proceedings and the Parliament has
enacted Section 5 to minimize the supervisory role of Courts in the arbitral
CR-6014-2025 (O&M) -47-
process to the bare minimum and only to the extent “so provided” under the
Part-I of Arbitration Act. Para Nos.76, 81, 82 and 186 of the aforesaid
judgment are reproduced as under:-
“76. The principle of judicial non-interference in
arbitral proceedings is fundamental to both domestic
as well as international commercial arbitration. The
principle entails that the arbitral proceedings are
carried out pursuant to the agreement of the parties
or under the direction of the tribunal without
unnecessary interference by the national courts.61
This principle serves to proscribe judicial interference
in arbitral proceedings, which would undermine the
objective of the parties in agreeing to arbitrate their
disputes, their desire for less formal and more flexible
procedures, and their desire for neutral and expert
arbitral procedures.62 The principle of judicial non-
interference in arbitral proceedings respects the
autonomy of the parties to determine the arbitral
procedures. This principle has also been incorporated
in international instruments, including the New York
Convention and the Model Law.
xx xx xx xx
81. One of the main objectives of the Arbitration Act
is to minimize the supervisory role of courts in the
arbitral process. Party autonomy and settlement of
disputes by an arbitral tribunal are the hallmarks of
arbitration law. Section 5 gives effect to the true
intention of the parties to have their disputes resolved
through arbitration in a quick, efficient, and effective
manner by minimizing judicial interference in the
arbitral proceedings. Parliament enacted Section 5 to
minimize the supervisory role of courts in the arbitral
process to the bare minimum, and only to the extent
CR-6014-2025 (O&M) -48-
“so provided” under the Part I of Arbitration. In
doing so, the legislature did not altogether exclude
the role of courts or judicial authorities in arbitral
proceedings, but limited it to circumstances where the
support of judicial authorities is required for the
successful implementation and enforcement of the
arbitral process. The Arbitration Act envisages the
role of courts to “support arbitration process” by
providing necessary aid and assistance when required
by law in certain situations.
82. Section 5 begins with the expression
“notwithstanding anything contained in any other law
for the time being in force.” The non-obstante clause
is Parliament’s addition to the Article 5 of the Model
Law. It is of a wide amplitude and sets forth the
legislative intent of limiting judicial intervention
during the arbitral process. In the context of Section
5, this means that the provisions contained in Part I of
the Arbitration Act ought to be given full effect and
operation irrespective of any other law for the time
being in force. It is now an established proposition of
law that the legislature uses non -obstante clauses to
remove all obstructions which might arise out of the
provisions of any other law, which stand in the way of
the operation of the legislation which incorporates the
non-obstante clause.
xx xx xx xx
186. Section 5 is effectively rendered otiose by the
interpretation given to it in N.N. Global (2)°. The
Court failed to provide a reason for holding that
Section 5 of the Arbitration Act does not have the
effect of excluding the operation of Sections 33 and 35
of the Stamp Act in proceedings under Section 11 of
the Arbitration Act. The non obstante clause in
CR-6014-2025 (O&M) -49-
Section 5 does precisely this. In addition to the effect
of the non obstante clause, the Arbitration Act is a
special law. We must also be cognizant of the fact that
one of objectives of the Arbitration Act was to
minimise the supervisory role of Courts in the arbitral
process.”
41. Now coming on the facts of the present case, the same can be
considered in the light of the aforesaid statutory provisions and the law
settled by Hon’ble Supreme Court. An argument was raised by learned
Senior Counsel for the petitioner that there was no mala fide on the part of
the petitioner-Improvement Trust for not having submitted the statement of
defence and counter-claim in time. He explained as to how the delay has
occurred. Firstly when on the first date of hearing before learned Arbitral
Tribunal, two officers of the Trust had appeared who are alleged to be in
collusion with the claimant/respondent but at the same time, they had been
repeatedly appearing before the Arbitral Tribunal on the later dates as well.
He also argued that the aforesaid officers never informed the higher officer
with regard to pendency of the arbitration proceedings. At one point of time,
even an Advocate had appeared, who was stated to be not authorized to
appear and it was thereafter, on the last two dates and at the time of passing
of the impugned order, Senior Advocates were engaged and on oral
instructions they had appeared and sought more time to file statement of
defence and the counter-claim. The method of appointment of an Advocate
for the Improvement Trust was also so highlighted by the learned Senior
Counsel for the petitioner that the cumbersome process for appointment of
an Advocate to represent the Improvement Trust starts from the level of
Clerk and goes till the level of concerned Minister and thereafter, an
CR-6014-2025 (O&M) -50-
Advocate is appointed and this caused delay in filing the statement of
defence and counter-claim. It was also submitted by learned Senior Counsel
for the petitioners that at the end only one week’s more time was sought
which was not granted. However, it was the case of learned Senior Counsel
for the respondent that the Revision Petition itself is not entertainable
because there is no lack of inherent jurisdiction in the impugned orders.
Whereas on the other hand, rather no ground was made out in the Revision
Petition because it was so specifically averred in the application for recalling
by the petitioner-Improvement Trust itself that it was being represented by
the officers and later on Advocates were engaged but now an inconsistent
stand has been taken by the petitioner-Improvement Trust at the time of
filing of the present revision petition.
42. Hon’ble Supreme Court in the aforesaid judgments has given
large impetus to the provision of Section 5 of the Arbitration Act which
provides for a non obstante clause. This is so clear from both the judgments
passed by Seven-Judges Constitution Bench of Hon’ble Supreme Court in
M/s SBP & Company Vs. Patel Engineering Ltd. & Another’s case
(Supra) and Interplay Between Arbitration Agreements Under Arbitration
and Conciliation Act, 1996 and Stamp Act, 1899, in Re: (Supra). On the
proposition of law with regard to the judicial interference, both the learned
Senior Counsels for the parties have not disputed that the jurisdiction of the
High Court under Article 226 and 227 of the Constitution of India cannot be
taken away even if there is a contrary provision in any statute. However, it
was the submission of the learned Senior Counsel for the respondent that it
was not a case of maintainability of the present revision but it is a case of
entertainability of the present petition in the facts and circumstances of the
CR-6014-2025 (O&M) -51-
present case because with the operation of the provisions of Section 23(4) of
the Arbitration Act, the aforesaid right had to be forfeited by the operation of
law and this was precisely what was done by learned Arbitral Tribunal.
43. In M/s Deep Industries Limited’s case (Supra) which was
referred to by both the learned Senior Counsels for the parties, it was a case
of an order being passed under Section 17 of the Arbitration Act by the
learned Arbitral Tribunal against which an appeal was filed under Section 37
of the Arbitration Act and that order under Section 37 of the Arbitration Act
was challenged under Article 227 of the Constitution of India which was
allowed by the High Court and the order of the City Civil Court was set
aside. It was held by Hon’ble Supreme Court that Article 227 of the
Constitution of India remained untouched by Section 5 of the Arbitration
Act but the provision of Article 227 of the Constitution of India can be
invoked only when there is patent lack of inherent jurisdiction. Similarly, in
Bhaven Construction’s case (Supra), again it was so held that it is only in
exceptional rarity that the party is left remediless or there is clear bad faith
only then intervention can be done under Article 227 of the Constitution of
India.
CONCLUSION
44. Therefore, this Court will have to apply the aforesaid ratio to
the facts and circumstances of the present case as to whether it is a case
whereby the impugned order suffers from patent lack of inherent jurisdiction
or it is a case of exceptional rarity or it is a case of clear bad faith. So far as
the patent lack of inherent jurisdiction is concerned, the facts and
circumstances of the present case suggests that it is not a case of a lack of
inherent jurisdiction. The learned Arbitrator has acted within his jurisdiction
CR-6014-2025 (O&M) -52-
by passing of the impugned order (Annexure P-11) and the learned
Arbitrator has been appointed by an order passed by a Co-ordinate Bench of
this Court under Section 11(6) of the Arbitration Act and the petitioner-
Improvement Trust has submitted to the jurisdiction of the Arbitrator and
therefore, it is not a case of lack of inherent jurisdiction. So far as the ground
of bad faith is concerned, the same also does not get substantiated in view of
the fact that the aforesaid element of bad faith on the part of the officers of
the Improvement Trust itself, the same has been taken in the present revision
petition only and not in the application for recalling of the impugned order
passed by the learned Arbitral Tribunal and rather as per Para No.7 which
has been reproduced above, it was so averred by the petitioner-Improvement
Trust itself in the recalling application that it is being represented by the
officers and therefore, the aforesaid plea of bad faith is also not sustainable
in the present case. So far as the plea of ground of exceptional rarity is
concerned, the impugned order (Annexure P-11) has been passed by learned
Arbitral Tribunal by invoking the provisions of Sections 23(4) and 25(b) of
the Arbitration Act and as per Section 23(4) of the Arbitration Act, outer
time-line of six months has been provided which admittedly has been
exceeded. Besides that, five opportunities were earlier granted at different
times by the learned Arbitrator but the statement of defence and counter-
claim was not filed and therefore, this Court is of the considered view that it
does not fall within the category of exceptional rarity.
45. So far as the other ground as to whether the party is left
remediless or not is concerned, the same can be considered in the light of the
aforesaid judgments of Hon’ble Supreme Court. Although against the
impugned order, an appeal under Section 37 of the Arbitration Act may not
CR-6014-2025 (O&M) -53-
lie but the same can always be a subject matter of objections to be taken
under Section 34 of the Arbitration Act within permissible parameters of
law. As observed by Hon’ble Supreme Court in M/s SBP & Company Vs.
Patel Engineering Ltd. & Another’s case (Supra) that once arbitration
commences, parties must await the final award before seeking judicial
remedies unless the Arbitration Act specifically provides for an appeal under
Section 37. Resorting to Articles 226 or 227 against every interim order is
impermissible and contrary to the legislative intent of minimizing court
interference in arbitral processes.
46. Reliance was placed by learned Senior Counsel for the
petitioners on a judgment passed by a Division Bench of Gujarat High Court
in Narmada Clean-Tech and others Case (Supra). In that judgment, the
maintainability of a petition under Article 227 of the Constitution of India in
exceptional circumstances was discussed. The scope of supervisory
jurisdiction against the proceedings before the Arbitral Tribunal being a
matter of legal doctrine as to whether it was maintainable in exceptional
circumstances or not, was discussed. The very basis for intervention under
Article 227 of the Constitution of India is restricted to patent error of
jurisdiction, flagrant violation of natural justice or manifest miscarriage of
justice and not for mere procedural irregularity or error of law in the conduct
of arbitration proceedings. However, in the present case, the facts do not
reveal any such exceptional circumstance which would justify exercise of
supervisory jurisdiction, in fact repeated opportunities and procedural
latitude were extended to the petitioner-Improvement Trust in accordance
with the statutory provisions. There is no prejudice touching the very
foundation of the arbitral process and fairness between the parties. Although
CR-6014-2025 (O&M) -54-
the proposition of law with regard to the inherent revisional jurisdiction of
the High Court under Article 227 of the Constitution of India is well settled
that the same cannot be curtailed and the same is maintainable but the same
is not entertainable in the facts and circumstances of the present case.
47. So far as the argument raised by learned Senior Counsel for the
petitioners with regard to the involvement of high value claim/public money
being involved is concerned, it cannot become a ground for interference in
view of the provision of Section 18 of the Arbitration Act which provides for
equal treatment of the parties. The aforesaid provision of Section 18 of the
Arbitration Act provides that the parties shall be treated with equality and
each party shall be given a full opportunity to present his case. The facts and
circumstances of the present case suggest that the petitioners were given five
opportunities by the learned Arbitral Tribunal and after the period of six
months had exceeded, the impugned order was passed vide which the right
to file the statement of defence and counter-claim was forfeited under
Sections 25(b) and 23(4) of the Arbitration Act and therefore, such a plea
taken by the learned Senior Counsel for the petitioners is not sustainable.
48. In view of the aforesaid facts and circumstances, this Court is of
the considered view that no ground is made out for entertaining the present
Revision Petition although the same may be maintainable under Article 227
of the Constitution of India. Consequently, the present Revision Petition is
hereby dismissed.
06.11.2025
(JASGURPREET SINGH PURI)
Bhumika JUDGE
1. Whether speaking/reasoned: Yes/No
2. Whether reportable: Yes/No
Legal Notes
Add a Note....