WP-88-2024.doc

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 88 OF 2024

Sheela Chowgule, H. No.34, Lengkok, Gopeng,

Age 65 yrs., Tamangolf, Ipoh 31350, West

Malaysia Represented By its Poa Holder,

Yalamanchili Laxman Rao, Residing At Balaji

Nagar, Arilova, Visakhapatnam, Andhra

Pradesh 530040.

…… Petitioners

V e r s u s

1. Vijay V. Chowgule, Chowgule House, Baina,

Vasco Da Gama, Goa-403 802.

2. Umaji V. Chowgule, Regina Mundi Road,

Airport Road, Chicalim, Vasco Da Gama-

403711.

3. Ashok V. ChowguleKanchanjunga, 5

th

Floor, Peddar Road, Kemps Corner, Mumbai-

400026.

4. Padma V. Chowgule, 91, Advent 9th Floor,

Gen. JagannathraoBhosale Marg, Mumbai-

400021.

5. Daulatrao Chowgule, 60/61, Alto Mangor,

Vasco da Gama, Goa-403802.

6. Jagdeep Chowgule, "Chowgule House", H.

No. 273, Airport Road, Chicalim, Goa - 403

711.

7. Jaywant Chowgule, "Villa Chowgule",

Airport Road, Chicalim, Goa- 403 711.

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8. Vidya Vernekar, r/o H.No. 424, Ward No.

12, St. Joaquim Road, Borda, Margoa,

Goa. Presently c/o Mr. Jaywant Yeshwantrao

Chowgule, residing at "Villa Chowgule",

Airport Road, Chicalim, Goa- 403711.

9. Chowgule & Company Pvt. Ltd, Registered

Office: Chowgule House, Mormugao Harbour,

Goa

10. Chowgule & Company (Salt) Pvt. Ltd.

Registered Office: Chowgule House,

Mormugao Harbour, Goa.

11. Dolphin Extrusions Pvt Ltd, Registered

Office: Chowgule House, Mormugao Harbour

Goa.

12. Dolphin Ore Extraction Pvt Ltd,

Registered Office: Chowgule House,

Mormugao Harbour Goa.

13. Dolphin Mining Services Pvt Ltd,

Registered Office: Chowgule House,

Mormugao Harbour Goa

14. Sarita P. Shirke, Coombe Edge,

Sunninghill Road, Windleshem, Surrey Gu 20

6 PP UK

15. Rohini V. Chowgule, Chowgule House,

Baina, Vasco Da Gama, Goa-403 802

16. Sulakshana Suresh Chowgule, Flat No.

181, 8th Floor, Jolly Maker Apartments No. 3,

Cuffe Parade, Colaba, Mumbai -400 005

17. Nikhilesh Suresh Chowgule, Flat No. 181,

8

th

Floor, Jolly Maker Apartments No.3, Cuffe

Parade, Colaba, Mumbai-400 005

18. Akhilesh Suresh Chowgule, Flat No. 181,

8th Floor, Jolly Maker Apartments No. 3, Cuffe

Parade, Colaba, Mumbai - 400 005

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19. Ramesh L. Chowgule, 678, La Citadel

Colony, Donapaula, Goa-403711

20. Satish L. Chowgule 829, Ambu Sadan,

Vaccine Depot Road, Belgaum Tikwadi,

Hukari, Belgaum, Karnataka-590 006

21. Bharati Naik, 25/1, Hondwaddo,

Betalbatim Goa 403713

22. Mrs. Surekha Dilip Chowgule, "Shefali",

S.no 132-B, Plot no. 4, Building No. 1, Flat no.

5 ICS Colony, Pune- 411007

23. Ms. Girija Dilip Chowgule, "Shefali", S.no

132-B, Plot no. 4, Building No. 1, Flat no. 5 ICS

Colony, Pune-411007

24. Santosh L. Chowgule, "Embassy Eros",

Flat No. 007, No. 7, Ulsoor Road, Bangalore

560 042.

25. JagdishChowgule, "Chowgule House" H.

No.273 Airport Road, Chicalim, Goa-403 711.

26. Chowgule Steamship Limited Chowgule

House, Mormugao Harbour Goa- 403803.

27. Jaigad Logistics Private Limited

Plot No. C-221, MIDC, Mrijole Ratnagiri-415

639.

28. Chowgule Construction Technologies

Private Limited 503 Gabmar Apartments,

Vasco-Da Gama, Goa 403802.

29. Chowgule Construction Chemical Private

Limited, 503 Gabmar Apartments, Vasco-Da

Gama, Goa 403802.

30. Kolhapur Oxygen and Acetylene Private

Limited 503 Gabmar Apartments, Vasco-Da

Gama, Goa 403802.

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31. Chowgule Ship Building Private Limited,

503 Gabmar Apartments, Vasco-DaGama, Goa

403802.

32. Angre Port Private Limited, 4th Floor,

Bakhtawar, Nariman Point Mumbai-400 021.

33. Fibroplast Marine Private Limited, No. 2

GabmarAppts, Vasco Da Gama, Goa-403 802. …… Respondents

-----------------------------------------

Mr. Pawan Jhabakh, Advocate with Mr. Gajendra Kanekar and

Mr. Aniket S. Kunde, Advocate for the Petitioners.

Mr. Parag Rao, Advocate with Ms. Sowmya Drago, Mr. Ajay

Menon and Mr. Akhil Parrikar, Advocate for Respondent nos. 1, 14 to

16 and 18 to 33.

Mr. Pulkit Bandodkar, Advocate with Mr Rahul Mantri and Ms

Angali Kumari, Advocate for the Respondent Nos. 2, 3, 4, 5, 7 and 8.

Mr. Shailesh Redkar, Advocate for the Respondent No. 9.

----------------------------

CORAM: M. S. KARNIK &

VALMIKI MENEZES, JJ.

RESERVED ON :

PRONOUNCED ON :

1

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AUGUST 2024

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JUDGMENT (Per M. S. Karnik, J.)

The Reference :

1.The learned Single Judge was not in agreement with the view

taken by another learned Single Judge in Mormugao Port Trust vs.

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Ganesh Benzoplast Ltd.

1

and as the same was contrary to the

decision of this Court in K.I.P.L. Vistacore Infra Projects J. V.

Municipal Corporation of the city of Ichalkaranji

2

and hence

thought it fit to refer the matter to a larger bench. The reference is

made on the following questions :

(i) In the event an Arbitral Tribunal constituted by

the High Court under Section 11(6) fails to complete

the proceedings within the stipulated period/

extended period, where an application under Section

29-A(4) would lie i.e. the High Court or the Civil Court

having original jurisdiction in case of a domestic

arbitration ?

(ii) In the event an Arbitral Tribunal consisting of

three Arbitrators is constituted as per Section 11(2)

i.e. with agreement and consent of the parties, fails to

complete the proceedings within the stipulated

period/extended period, where an application under

Section 29-A(4) would lie i.e. before the High Court

or the Civil Court having original jurisdiction in the

case of domestic arbitration ?

2.Shri Parag Rao, learned Counsel for the respondents submitted

that it may now not be necessary to answer the reference in view of the

decision of the Supreme Court in Chief Engineer (NH) PWD

1 Writ Petition No.3/2020 decided on 15.01.2020

2 2024 SCC Online Bom 327

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(Roads) vs. M/s. BSC & C and C JV

3

. It is submitted that after the

decision in Chief Engineer (NH) PWD (Roads) (supra) was

brought to the notice of the learned Judge who had made the

reference, the learned Judge in Marcelina Fernandes & Ors. vs.

Green Valley Realtors

4

held that in view of the observations of the

Supreme Court, the Principal Civil Court of original jurisdiction in the

district is the Court of Principal District Judge, South Goa, Margao.

Shri Rao, therefore submitted that the issued is now well settled.

3.On a reading of the decision of the Supreme Court in Chief

Engineer (NH) PWD (Roads) (supra), we did carry an impression

that the reference could be answered in terms of the Supreme Court’s

order as it seems squarely covered by such decision. We find it

apposite to reproduce the order in Chief Engineer (NH) PWD

(Roads) (supra), which reads thus :

“Heard the learned senior counsel appearing for the

petitioner. Section 29A of the Arbitration and

Conciliation Act, 1996 (for short, “the Arbitration

Act”) reads thus:

“29A. Time limit for arbitral award. - (1) The

award in matters other than international

commercial arbitration shall be made by the

arbitral tribunal within a period of twelve

months from the date of completion of

pleadings under sub-section (4) of section 23.

32024 SCC OnLine SC 1801

42024 SCC Online Bom 2028

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Provided that the award in the matter of

international commercial arbitration may be

made as expeditiously as possible and

endeavour may be made to dispose off the

matter within a period of twelve months from

the date of completion of pleadings under sub-

section (4) of section 23.

(2) If the award is made within a period of six

months from the date the arbitral tribunal

enters upon the reference, the arbitral tribunal

shall be entitled to receive such amount of

additional fees as the parties may agree.

(3) The parties may, by consent, extend the

period specified in sub-section (1) for making

award for a further period not exceeding six

months.

(4) If the award is not made within the period

specified in sub-section (1) or the extended

period specified under sub-section (3), the

mandate of the arbitrator(s) shall terminate

unless the Court has, either prior to or after the

expiry of the period so specified, extended the

period:

Provided that while extending the period

under this sub-section, if the Court finds that

the proceedings have been delayed for the

reasons attributable to the arbitral tribunal,

then, it may order reduction of fees of

arbitrator(s) by not exceeding five per cent. for

each month of such delay:

Provided further that where an application

under sub-section (5) is pending, the mandate

of the arbitrator shall continue till the disposal

of the said application:

Provided also that the arbitrator shall be

given an opportunity of being heard before the

fees is reduced.

(5) The extension of period referred to in sub-

section (4) may be on the application of any of

the parties and may be granted only for

sufficient cause and on such terms and

conditions as may be imposed by the Court.

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(6) While extending the period referred to in

subsection (4), it shall be open to the Court to

substitute one or all of the arbitrators and if one

or all of the arbitrators are substituted, the

arbitral proceedings shall continue from the

stage already reached and on the basis of the

evidence and material already on record, and

the arbitrator(s) appointed under this section

shall be deemed to have received the said

evidence and material.

(7) In the event of arbitrator(s) being appointed

under this section, the arbitral tribunal thus

reconstituted shall be deemed to be in

continuation of the previously appointed

arbitral tribunal.

(8) It shall be open to the Court to impose

actual or exemplary costs upon any of the

parties under this section.

(9) An application filed under sub-section (5)

shall be disposed of by the Court as

expeditiously as possible and endeavour shall

be made to dispose of the matter within a

period of sixty days from the date of service of

notice on the opposite party.”

(underlines supplied)

The power under sub-Section (4) of Section 29A

of the Arbitration Act vests in the Court as defined in

Section 2(1)(e) of the Arbitration Act. It is the

principal Civil Court of original jurisdiction in a

district which includes a High Court provided the

High Court has ordinary original civil jurisdiction.

In this case, the High Court does not have the

ordinary original civil jurisdiction. The power under

sub-Section (6) of Section 29A is only a consequential

power vesting in the Court which is empowered to

extend the time. If the Court finds that the cause of

delay is one or all of the arbitrators, while extending

the time, the Court has power to replace and

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substitute the Arbitrator(s). The said power has to be

exercised by the Court which is empowered to extend

the time as provided in sub-Section (4) of Section 29A

of the Arbitration Act.”

4. Section 29-A of the Arbitration Act is extracted in the aforesaid

decision. The Supreme Court in no uncertain terms observed that the

power under sub-section (4) of Section 29-A of the Arbitration and

Conciliation Act, 1996, vests in the Court as defined in Section 2(1)(e)

of the Arbitration Act. Their Lordships held that it is the Principal

Civil Court of original jurisdiction in the district which includes a High

Court provided the High Court has ordinary original civil jurisdiction.

In the case before the Supreme Court, the High Court did not have the

ordinary original civil jurisdiction. It is material to note that Their

Lordships observed that the power under sub-section (6) of Section

29-A is only a consequential power vesting in the Court which is

empowered to extend the time. If the Court finds that the cause of

delay is one or all of the arbitrators, while extending the time, the

Court has power to replace and substitute the Arbitrator(s). It is thus

held that the said power has to be exercised by the Court which is

empowered to extend the time as provided under sub-section (4) of

Section 29-A of the Arbitration Act. In view of the law laid down by

the Supreme Court, we thought our task is now simple and the

reference should be answered in terms of what is held by the Supreme

Court.

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5.Shri Pawan Jhabakh, learned Counsel for the petitioners,

insisted that the facts in Chief Engineer (NH) PWD (Roads)

(supra) be carefully looked into before forming any opinion. Our

attention was invited to the order passed by the learned Single Judge

of the High Court of Meghalaya at Shillong in Chief Engineer (NH)

PWD (Roads) vs. M/s. BSC & C & C JV

5

, which decision was

challenged bef0re the Supreme Court in Chief Engineer (NH)

PWD (Roads) (supra). Reference to paragraphs 19 and 20 of the

decision of High Court of Meghalaya in Chief Engineer (NH) PWD

(Roads) (supra) is necessary to understand the facts. In the case

before the Meghalaya High Court, the Arbitrators were not appointed

under Section 11 by the High Court. In that context, the learned Judge

observed that a distinction can be drawn to hold that, if the

appointment of the arbitrator is not by the High Court under Section

11, the Principal Civil Court of original jurisdiction, which is the

Commercial Court at Shillong, East Khasi Hills, will have the power to

entertain an application under Section 29-A for extension of the

terms, as no anomalous situation would arise therefrom. The learned

Judge held that as such, by making use of the expression of Section 2

of the Act, “unless the context otherwise requires” the textual

interpretation will be in tune with the contextual one. It was then held

by the learned Judge that keeping in mind the fact that the High Court

5 2024 SCC OnLine Megh 284

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of Meghalaya does not possess original Civil Jurisdiction, coupled with

the fact that Section 11 nor Section 29-A(6) do not come into play in

the present case, as the arbitrators were not appointed by the High

Court, the Commercial Court, East Khasi Hills, Shillong being the

Principal Court or original jurisdiction will have the jurisdiction to

extend the mandate as prescribed under Section 29-A of the Act.

6.We thus find that it was in a different factual context than the

one arising in the present case that the Meghalaya High Court held

that the Principal Civil Court of original jurisdiction will have the

jurisdiction to extend the mandate as prescribed under Section 29-A

of the Act and not the High Court. The Supreme Court having upheld

the judgment and order of the Meghalaya High Court, the question is

whether the decision rendered by the Supreme Court will bind us

having regard to the fact situation in the present case.

7.Faced with a dilemma, therefore, it became necessary for us to

seek guidance from the principles laid down by the Supreme Court as

to what is a ratio decidendi emanating from a decision and as to the

principles of binding precedent. The Supreme Court in

Secunderabad Club vs. Commissioner of Income-Tax

6

has

elaborately discussed the concept of ratio decidendi. It would be

useful to extensively refer to the observations made by the Supreme

6 (2023) 457 ITR 263 (SC)

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Court. Dealing with the concept of ratio decidendi, it is held to be

settled position of law that only the ratio decidendi of a judgment is

binding as a precedent. In B. Shama Rao vs. Union Territory of

Pondicherry

7

, it has been observed that a decision is binding not

because of its conclusion but with regard to its ratio and the principle

laid down therein. In Quinn vs. Leathem

8

, wherein it was observed

that every judgment must be read as applicable to the particular facts

proved, or assumed to be proved, since the generality of the

expressions which may be found there are not intended to be

expositions of the whole law, but governed and qualified by the

particular facts of the case in which such expressions are found. In

other words, a case is only an authority for what it actually decides.

According to the well settled theory of precedents, every decision

contains three basic ingredients -(i) findings of material facts, direct

and inferential. An inferential finding of fact is the inference which

the Judge draws from the direct or perceptible facts; (ii) statements of

the principles of law applicable to the legal problems disclosed by the

facts; and (iii) judgment based on the combined effect of (i) and (ii)

above. For the purposes of the parties themselves and their privies,

ingredient (iii) is the material element in the decision, for, it

determines finally their rights and liabilities in relation to the subject-

matter of the action. It is the judgment that estops the parties from

7AIR 1967 SC 1480

8 1901 AC 495 (HL)

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reopening the dispute. However, for the purpose of the doctrine of

precedent, ingredient (ii) is the vital element in the decision. This is

the ratio decidendi. It is not everything said by a Judge when giving a

judgment that constitutes a precedent. The only thing in a Judge's

decision binding a party is the principle upon which the case is

decided and for this reason it is important to analyse a decision and

isolate from it the ratio decidendi.

8.Their Lordships further observed that in the leading case

Qualcast (Wolverhampton) Ltd. vs. Haynes

9

, it was laid down that the

ratio decidendi may be defined as a statement of law applied to the

legal problems raised by the facts as found, upon which the decision is

based. The other two elements in the decision are not precedents. A

judgment is not binding (except directly on the parties to the lis

themselves), nor are the findings of fact. This means that even where

the direct facts of an earlier case appear to be identical to those of the

case before the Court, the Judge is not bound to draw the same

inference as drawn in the earlier case. The legal principles guiding the

decision in a case is the basis for a binding precedent for a subsequent

case, apart from being a decision which binds the parties to the case.

Thus, the principle underlying the decision would be binding as a

precedent for a subsequent case. Therefore, while applying a decision

to a later case, the Court dealing with it has to carefully ascertain the

9(1959) AC 743

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principle laid down in the previous decision. A decision in a case takes

its flavour from the facts of the case and the question of law involved

and decided.

9. Article 141 of the Constitution states that the law declared by the

Supreme Court shall be binding on all the Courts within the territory

of India. All Courts in India, therefore, are bound to follow the

decisions of Supreme Court. This principle is an aspect of judicial

discipline. The Supreme Court further observed that the doctrine of

binding precedent helps in promoting certainty and consistency in

judicial decisions and enables an organic development of the law

besides providing assurance to individuals as to the consequences of

transactions forming part of daily affairs. Thus, what is binding in

terms of Article 141 of the Constitution is the ratio of the judgment and

as already noted, the ratio decidendi of a judgment is the reason

assigned in support of the conclusion. The reasoning of a judgment

can be discerned only upon reading of a judgment in its entirety and

the same has to be culled out thereafter. The ratio of the case has to be

deduced from the facts involved in the case and the particular

provision(s) of law which the court has applied or interpreted and the

decision has to be read in the context of the particular statutory

provisions involved in the matter. What is binding, therefore, is the

principle underlying a decision which must be discerned in the context

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of the question(s) involved in that case from which the decision takes

its colour. In a subsequent case, a decision cannot be relied upon in

support of a proposition that it did not decide. Therefore, the context

or the question, while considering which, a judgment has been

rendered assumes significance.

10.As against the ratio decidendi judgment, an obiter dictum is an

observation by a Court on a legal question which may not be necessary

for the decision pronounced by the Court. However, the obiter dictum

of the Supreme Court is binding under Article 141 to the extent of the

observations on points raised and decided by the Court in a case.

Thus, we need to bear in mind that what is of essence in a decision is

its ratio and not every observation found therein, nor what logically

follows from the various observations made therein.

11.Keeping the aforesaid principles relating to ratio decidendi and

law of binding precedents in mind, we are of the considered opinion

that though there is a discernible ratio decidendi in Chief Engineer

(NH) PWD (Roads) vs. M/s. BSC & C and C JV (supra),

however, the decision is applicable in the facts of that case and cannot

be treated as binding precedent for the present case. While carefully

reading the order of the Supreme Court in Chief Engineer (NH)

PWD (Roads) vs. M/s. BSC & C and C JV (supra), in the light of

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the facts that have been narrated in the judgment of the Meghalaya

High Court which we have already referred to herein before, we are of

the humble view that the decision of the Supreme Court cannot be

treated as a binding precedent in the facts of the present case as the

Arbitrator was appointed by the High Court under Section 11(6) of the

Arbitration Act.

12.Let us now deal with the questions referred that fall for our

consideration. First we deal with the second question referred to us.

The answer to this question need not detain us much. The Arbitral

Tribunal constituted under Section 11(2), i.e. with agreement and

consent of parties fails to complete the proceedings within the

stipulated period/extended period, the application under Section 29-

A(4) would lie before the Principal Civil Court of original jurisdiction

in a district which includes a High Court provided the High Court has

ordinary original civil jurisdiction. The power under sub-section (6) of

Section 29-A is only a consequential power vesting in the Court which

is empowered to extend the time under Section 29-A(4). The answer

to the second question in this reference is squarely covered by the

decision of the Hon’ble Supreme Court in Chief Engineer (NH)

PWD (Roads) (supra).

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13.In answer to the first question posed for our consideration, some

basic facts of the present case need to be noticed. Initially, the arbitral

tribunal comprising of three Arbitrators came to be constituted. After

some time, the Presiding Arbitrator recused from the matter on

23.08.2022 resulting in the two Arbitrators appointing Presiding

Arbitrator, who accepted such appointment on 15.09.2022. The

extended period for passing of the award would have expired on

28.03.2023. The respondent no.1, therefore, applied for extension of

time for making of the award by the Arbitral Tribunal by a period of

six months. During the pendency of such application, the Presiding

Arbitrator resigned and as the two Arbitrators could not agree upon a

Presiding Arbitrator, an application for Appointment of Arbitrator

came to be filed before this Court by the respondent no.1. This Court

appointed a Presiding Officer vide order dated 31.10.2023. The

Arbitral Tribunal was thus reconstituted and arbitral proceedings

recommenced. By an order dated 02.07.2024, the Commercial Court

extended the period for passing of the award by the Arbitral Tribunal.

The order dated 02.07.2024 was challenged by the petitioners in this

petition.

14.This Court in Cabra Instalaciones Y. Servicios, S.A. vs.

Maharashtra State Electricity Distribution Company

Limited

10

and more recently on K.I.P.L. Vistacore Infra Projects

10 2019 SCC OnLine Bom 1437

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J. V. vs. Municipal Corporation of the City of Ichalkarnji

(supra) had, inter alia, taken the view that once the Arbitrator(s) is

appointed by the High Court, the word 'Court' as mentioned in Section

29-A would have to be read as the High Court.

15.Then in Mormugao Port Trust (supra), the learned Single

Judge after referring to the scheme of the Arbitration Act and upon a

detailed analysis thereof, had taken a view that a “Court” for the

purpose of Section 29-A would be the very same Court i.e. defined

under Section 2(1)(e) i.e. either the District Court or the High Court

whenever the High Court exercises ordinary original civil jurisdiction.

16. Learned Counsel for the petitioners submitted that Section 2(1)

(e) of the Arbitration Act cannot be read in isolation but only in

consonance and in conjunction with Section 2(1) of the Act. It is

submitted that an isolated textual interpretation cannot be provided to

Section 2(1)(e) of the Arbitration Act. According to him, Section 2(1)

of the Act indicates the definition should be understood in accordance

with the surrounding context or specific circumstances rather than

strictly adhering to a textual interpretation. It is submitted that for

the purpose of Section 29-A(4), “Court” has to be the High Court as

the appointment of the Arbitrator(s) was made under Section 11(6) of

the Arbitration Act. Reliance is placed on the decisions in Chief

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Engineer (NH) PWD (Roads) vs. M/s. BSC & C & C JV (supra)

rendered by the Meghalaya High Court, Chief Engineer (NH) PWD

(Roads) vs. M/s. BSC & C & C JV order dated 16.02.2024 in

Commercial Misc. Case no. 1/2024 of Commercial Court, East Khasi

Hills, Shillong, M/s. Linear Enterprises vs. M/s. Maha Active

Engineering Pvt. Ltd. order dated 26.07.2024 in Arbitration

Application No. 14/2024, Shapoorji Pallonji & Co. vs. Lily Realty

Private Limited) Order passed in I.A. Nos. 1 and 2/2023 in CMP

No. 357/2018 of Karnataka High Court, Lots Shipping Company

Ltd. vs. Cochin Port Trust

11

, Nilesh Ramanbhai Patel vs.

Bhanubhai Ramanbhai Patel

12

DDA vs. Tara Chand Sumit

Construction Co.

13

, Indian Farmers Fertilizers Coop Ltd. vs.

Manish Engineering Enterprises

14

and Jaypee Infratech Ltd.

vs. EHBH Services (P) Ltd.

15

, in support of his submissions.

17.Shri Parag Rao, Learned Counsel for the respondents submitted

that this reference has to be answered in terms of the law declared by

the Supreme Court in Chief Engineer (NH) PWD (Roads)

(supra). It is submitted that when the reference was made, this Court

did not have the benefit of the Hon'ble Supreme Court’s decision

which has now settled the controversy. The Hon'ble Supreme Court

11 2020 SCC OnLine Ker 21443

12 2018 SCC OnLine Guj 5017

13 2020 SCC OnLine Del 2501

14 2022 SCC OnLine All 150

15 2024 SCC OnLine All 444

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has emphasized and taken note of the fact that the Meghalaya High

Court did not have the ordinary original civil jurisdiction which,

according to the learned Counsel, is the only determining factor to

decide whether a “Court” under Section 29-A would be the High Court

or the Principal Civil Court of original jurisdiction in a district. The

appointment of Arbitrator(s) by the High Court under Section 11(6) is

of no consequence while deciding whether the “Court” under Section

2(1)(e) would also be the “Court” under Section 29-A of the

Arbitration Act. It is submitted that merely because the High Court

has appointed Arbitrator(s), the expression “Court” used in Section

29-A cannot be construed to mean the High Court unless such High

Court exercises ordinary original civil jurisdiction.

18.Relying on the decision in Kunhayammed and Ors. vs.

State of Kerala

16

, it is submitted that the declaration of law by the

Supreme Court under Article 141 of the Constitution of India, is

binding on this Court. To express any opinion in conflict with or in

departure from the view taken by the Supreme Court is not proper

because permitting to do so would be subversive of judicial discipline

and an affront to the order of the Supreme Court. It is submitted that

generally the definition clause which defines a term when used

elsewhere in the statute, should and would carry the same meaning as

given in the definition clause. The object of such definition is to avoid

16 (2000) 6 SCC 359

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frequent repetitions in describing all the subject-matter to which the

word or expression so defined is intended to apply. It is submitted

that the definition “Court” under Section 2(1)(e) is an exhaustive

definition as it uses the expression “means and includes” and it

envisages only two Courts i.e. either a principal Civil Court of original

jurisdiction in a district or a High Court in exercise of its ordinary

original civil jurisdiction. It is further submitted that contextual

interpretation is not to be invoked unless it leads to absurdity. It is

further submitted that the power of appointment under Section 11(6)

is the power given to the High Court only to put the arbitration

proceedings in play or in motion whenever the parties fail to agree on

appointment of an Arbitrator. It is the submission that the Arbitrator

once is appointed, the High Court is not in seisin of the arbitration

proceedings or the Arbitrator and does not retain any jurisdiction on

the Arbitrator as it becomes functus officio. Learned Counsel relied on

the decision in Nimet Resources Inc. & anr. vs. Essar Steels

Limited

17

, in support of his submissions. Learned Counsel was at

pains to point out that the power of appointment under Section 11 is

independent and distinct power of substitution under Section 29-A.

It is further submitted that there are other provisions in the

Arbitration Act which indicate conceding of powers to parties and

Court to terminate mandate of Arbitrator(s) appointed by Supreme

17 (2009) 17 SCC 313

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Court/High Court. It is therefore urged that the Commercial Court is

the correct Court for exercising powers under Section 29-A.

19.Reliance is placed on the decisions in Mormugao Port Trust

vs. Benzoplast Ltd., (supra), Chief Engineer (NH) PWD

(Roads) vs. M/s. BSC & C and C JV (supra), Kunhayammed &

Ors. vs. State of Kerala & anr. (supra), Marcelina Fernandes &

Ors. vs. Green Valley Realtors (supra), Nahalchand

Laloochand Private Ltd. vs. Panchali Cooperative Housing

Society Ltd.

18

, State of West Bengal & Ors. vs. Associated

Contractors

19

and Nimet Resources INC & anr. vs. Essar

Steels Limited

20

, by Shri Parag Rao, in support of his submissions.

20. Let us consider some of the provisions of the Arbitration Act.

Section 2(1)(a) of the Arbitration Act defines – ‘arbitration’ means any

arbitration whether or not administered by permanent arbitral

institution; Section 2(b) defines ‘arbitration agreement’ means an

agreement referred to in section 7; Section 2(d) defines ‘arbitral

tribunal’ means a sole arbitrator or a panel of arbitrators relevant in

the context of the present case. Section 2(e)(i) of the Act defines

‘Court’ means (i) in the case of an arbitration, the Principal Civil Court

of original jurisdiction in a district and includes the High Court in

18 (2010) 9 SCC 536

19 (2015) 1 SCC 32

20 (2009) 17 SCC 313

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exercise of its ordinary original civil jurisdiction, having jurisdiction to

decide the questions forming the subject matter of the arbitration if

the same had been the subject matter of a suit. We have not referred

to that part of the definition which deals with the international

commercial arbitration.

21.Chapter III of the Arbitration Act contains provisions relating to

composition of Arbitral Tribunal. Section 11 therein provides for

appointment of arbitrators. Sub-section (2) of Section 11 of the

Arbitration Act provides that subject to sub-section (6), the parties are

free to agree on a procedure for appointing the arbitrator or

arbitrators. Sub-section (3) deals with the situation where failing any

agreement referred to in sub-section (2), in an arbitration with three

arbitrators, each party shall appoint one arbitrator and the two

appointed arbitrators shall appoint the third arbitrator who shall act

as the Presiding Arbitrator. Sub-section (4) says that if the

appointment procedure in sub-section (3) applies and, (a) a party fails

to appoint an arbitrator within thirty days from the receipt of a request

to do so from the other party; or (b) the two appointed arbitrators fail

to agree on the third arbitrator within thirty days from the date of

their appointment, the appointment shall be made on an application

of the party, by the High Court, in case of arbitrations other than the

international commercial arbitration, that is for domestic arbitrations.

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Sub-section (5) provides that failing any agreement referred to in sub-

section (2), in an arbitration with a sole arbitrator, if the parties fail to

agree on the arbitrator within thirty days from receipt of a request by

one party from the other party to so agree, the appointment shall be

made on an application of the party in accordance with the provisions

contained in sub-section(4). It is now significant to notice sub-section

(6) of Section 11 of the Arbitration Act, which provides that where,

under an appointment procedure agreed upon by the parties,- (a) a

party fails to act as required under that procedure; or (b) the parties,

or the two appointed arbitrators, fail to reach an agreement expected

of them under that procedure; or (c) a person, including an institution,

fails to perform any function entrusted to him or it under that

procedure, the appointment shall be made, on an application of the

party, by the High Court, in case the arbitrations other than

international commercial arbitration to take the necessary measure,

unless the agreement on the appointment procedure provides other

means for securing the appointment.

22.Chapter VI of the Arbitration Act, deals with making of arbitral

award and termination of proceedings. Significant in the context of

the present case is Section 29-A which provides for time-limit for

arbitral award. Sub-section (4) of Section 29-A stipulates that if the

award is not made within the period specified in sub-section (1) or the

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extended period specified under sub-section (3), the mandate of the

arbitrator(s) shall terminate unless the Court has, either prior to or

after the expiry of the period so specified, extended the period. It is

also pertinent to note that sub-section (6) of Section 29-A stipulates

that while extending the period referred to in sub-section (4) it shall

be open to the Court to substitute one or all of the arbitrators and if

one or all of the arbitrators are substituted, the arbitral proceedings

shall continue from the stage already reached and on the basis of the

evidence and material already on record, and the arbitrator(s)

appointed under this section shall be deemed to have received the said

evidence and material.

23. If the strictly textual interpretation of Section 2(e)(i) is applied,

there would be no difficulty for us to hold that the Court for the

purpose of Section 29-A(4) and sub-section (6) of the Arbitration Act,

would be the principal Civil Court of original jurisdiction in a district

which includes a High Court in exercise of its ordinary original civil

jurisdiction even when the Arbitrator is appointed under Section 11(6)

of the Act. However, we have to consider whether the “Court” means

District Court or the High Court which would mean the principal Civil

Court of original jurisdiction or the High Court in the context of the

appointment of an Arbitrator made by the High Court under Section

11(6) of the Arbitration Act. Section 2(1)(e) of the Arbitration Act

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defines “Court”. However, having regard to the purport of Section 2(1)

which provides that in this part, unless the context requires, the same

will have to be read in a contextual sense.

24. Let us now examine the basic facts in Mormugao Port Trust

(supra), which view of the learned Single Judge was a trigger for this

reference. The Mormugao Port Trust and the company between

whom there was a supplementary agreement signed, jointly appointed

a retired learned Judge of the Delhi High Court as the sole Arbitrator.

Having entered the arbitration on 19.06.2018, the sole Arbitrator

could not complete the arbitral proceedings in one year as stipulated

under Section 29-A of the Arbitration Act. With both parties' consent,

the period stood extended by six more months. As the extended

period was to end on 18.12.2019, two days prior, both parties jointly

applied to the Principal District Judge for further extension of time.

Both the parties wanted the time extended by one more year. By an

Order dated 17.12.2019, the Principal District Judge rejected the

parties' joint application. The Principal District Judge held that

jurisdiction under Section 29-A of the Arbitration Act to extend the

arbitral period lies with the High Court.

25.In our considered opinion, the learned Single Judge in

Mormugao Port Trust (supra) rightly came to the conclusion that

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the power to extend the arbitral period would be with the District

Judge who will have jurisdiction to entertain the application under

Section 29-A(4) of the Arbitration Act and not the High Court. In

Mormugao Port Trust (supra) the arbitral proceedings was not

commenced under Section 11(6) by the High Court but the same was

with the consent of the parties.

26.Thus, the issue in Mormugao Port Trust (supra) was not in

the context of the appointment of the Arbitrator under Section 11(6) of

the Arbitration Act. We may hasten to add that we agree with the

conclusion in Mormugao Port Trust (supra) as the same is in

conformity with what is recently held by the Supreme Court in Chief

Engineer (NH) PWD (Roads) (supra). In Mormugao Port

Trust (supra), though the learned Single Judge has referred to Section

11(6) of the Arbitration Act, we find that the issue of Section 11(6) was

not arising for consideration. The observations in the context of

Section 11(6) of the Arbitration Act, will therefore have to be regarded

as passing remarks and not as a binding ratio.

27. The Arbitration Act proceeds on two fundamental principles.

One is party autonomy and the other is minimal Court intervention.

Section 5, as held by the Hon’ble Supreme Court, brings out clearly the

object of the new Act, namely, that of encouraging resolution of

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disputes expeditiously and less expensively and when there is an

arbitration agreement, the Court’s intervention should be minimal.

The provisions of the Act reveal that the party autonomy extends to

parties being free to determine the appointment procedure, the parties

are free to agree on a procedure for challenging an arbitrator; at

several places in the Act, consequences are provided only when the

parties do not agree on a given issue/procedure. So much for the party

autonomy and minimal Court intervention. The parties thus can decide

virtually everything as regards the procedure barring some exceptions

made by the Act.

28. Section 29-A was inserted in the Act w.e.f. 23.10.2015.

Provisions were thereby made prescribing time limit for arbitral award.

The object obviously was to ensure that the arbitration proceedings are

decided expeditiously and within the time frame prescribed. Sub-

section (2) of Section 29A provides for an incentive if the award is

made within the time prescribed. The proviso to sub-section (4) of

Section 29A says that while extending the period under this sub-

section, if the Court finds that the proceedings are delayed for reasons

attributed to the arbitral tribunal, then it may order reduction of fees.

Sub-section (4) will have to be read together with sub-section (5) and

sub-section (6). As per sub-section (5), the extension under Section

29-A(4) can be granted by the Court on an application by one of the

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parties and may be granted only for sufficient cause and on such terms

and conditions as may be imposed by the Court.

29. In the context of sub-section (6) Their Lordships held that the

power under sub-section (6) of Section 29A is only a consequential

power vested in the Court which is empowered to extend the time. If

the Court finds that the cause of delay is one or all of the arbitrators,

while extending the time, the Court has power to replace and substitute

the Arbitrator(s). The said power obvi0usly has to be exercised by the

Court which is empowered to extend the time. At this juncture, it is

significant to notice Section 11(2) which provides that subject to sub-

section (6), the parties are free to agree on a procedure for appointing

the arbitrator(s). As a result, under sub-section (6) of Section 11, the

appointment shall be made, on an application of the parties, by the

High Court, in case of arbitrations other than international commercial

arbitrations. Even in sub-section (6) it is significant to note that

parties’ autonomy is seen, in that the appointment of arbitrator shall

be made by the High Court to take necessary measure, unless the

agreement on the appointment procedure provides other means for

securing the appointment. We need to bear in mind that the parties are

permitted to raise objections/defences before appointment of an

arbitrator under Section 11(6) and upon considering all relevant

factors, the High Court appoints an Arbitrator(s) under Section 11(6) of

the Act. Now in this context if sub-sections (4), (5) & (6) of Section 29A

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are read, it would be clear that extension of period is not just an empty

formality. Even when application for extension of period is made,

several consequences may flow while considering the application as it

shall even be open to the Court to substitute one or all of the

arbitrators. When the Act provides for a procedure in Section 11(6) as

to how appointment of an Arbitrator shall be made and as sub-section

(2) of Section 11 provides that parties are free to agree on a procedure

for appointing the arbitrator/s, we find it difficult to comprehend as

how the power to substitute an arbitrator would lie with any Court

other than the one empowered to appoint arbitrator/s under

Section11(6). It is for this reason that the definition of ‘Court’ cannot be

taken strictly in the textual sense but as the provisions of Section 2

ordain, the definition of ‘Court’ will have to be seen in a contextual

sense. Thus the Court empowered under Section 11(6) for an

appointment of an arbitrator is the High Court, we find it

inconceivable that for the purpose of sub-section (4) of Section 29A,

when the appointment of the Arbitrator is made by the High Court, the

Court would be any other Court than the one empowered under

Section 11 (6) of the Arbitration Act.

30. Having put a mechanism in place by providing a timeline for

arbitral award in the form of Section 29-A, there are several factors to

be considered by the Court before extending the period under sub-

section (4) of Section 29A which fall within the realm of discretionary

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power of the Court. For one, the extension of the period may be

granted only for sufficient cause and second, on such terms and

conditions as may be imposed by the Court. Then again it shall be open

for the Court to substitute an arbitrator and as the sub-section (6) says

that the arbitrator appointed under this Section shall be deemed to

have received the said evidence and material for the purpose of

continuation of the arbitral proceedings from the stage already

reached. The extension of time is therefore not a mere ritual or an

empty formality. Considering the nature of application of mind and

the extent of the discretionary powers conferred on the Court, we have

no hesitation in forming an opinion that it can only be the Court

empowered under Section 11(6) which will be the Court for the purpose

of sub-section (4) of Section 29-A in the present case.

31. No doubt that once the arbitrator is appointed under Section

11(6), the Court appointing the Arbitrator becomes functus officio for

the purpose of arbitration proceedings before the arbitrator. However,

that can never take away the empowerment of the Court which

appointed the Arbitrator under Section 11(6) when the question of

extension of period arises in the context of sub-section (4) of Section

29-A.

32.The decision of the Hon’ble Supreme Court in Nimet

Resources Inc. & anr. vs. Essar Steels Limited (supra), which

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was relied upon by learned Counsel for the respondents, was rendered

prior to the insertion of Section 29-A in the Arbitration Act. We have

carefully gone through the various decisions relied upon by the learned

Counsel. We do not propose to multiply the decisions, suffice it to say

that we are in respectful agreement with the view taken by the High

Court of Gujarat in Nilesh Ramanbhai Patel vs. Bhanubhai

Ramanbhai Patel (supra). Paragraphs 7, 8 and 9 of the said decision

reads thus :

“7. In order to judge the objections of Shri Mehta to

the jurisdiction of this Court to entertain the

application, few provisions of the said Act would have

to be noted. Section 2(1)(e) of the Act defines the

term ‘Court’ as under:—

“2. Definitions

(1) In this Part, unless the context otherwise requires.

… … …

(e) “Court” means—

(i) in the case of an arbitration other than

international commercial arbitration, the

principal Civil Court of original jurisdiction in a

district, and includes the High Court in exercise of

its ordinary original civil jurisdiction, having

jurisdiction to decide the questions forming the

subject-matter of the arbitration if the same had

been the subject matter of a suit, but does not

include any Civil Court of a grade inferior to such

principal Civil Court, or any Court of Small

Causes;

(ii) in the case of international commercial

arbitration, the High Court in exercise of its

ordinary original civil jurisdiction, having

jurisdiction to decide the questions forming the

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subject-matter of the arbitration if the same had

been the subject-matter of a suit, and in other

cases, a High Court having jurisdiction to hear

appeals from decrees of courts subordinate to that

High Court.”

8. As per this definition thus a Court in case of an

arbitration other than international commercial

arbitration is the Principal Civil Court of original

jurisdiction in a district and where the High Court

exercises its ordinary original civil jurisdiction, would

include the High Court also. If the reference is to an

international commercial arbitration, the Court

would mean the High Court, if it exercises ordinary

original jurisdiction or the High Court having

jurisdiction to hear appeals of Courts subordinate to

that High Court. This definition in Section 2,

however, like most other definition provisions starts

with a caveat when it provides that in this part unless

the context otherwise requires. We may note that this

definition was substituted by the Act 3 of 2016 with

effect from 23.10.2015. The definition contained

prior to such amendment did not contain two clauses

as in the present case. Clause (i) in the present form

was the full definition without presence of Clause (ii).

Effectively so far as our case is concerned, this

change in the definition is inconsequential.

9. Section 11 of the Act, as is well-known, pertains

to appointment of arbitrators and makes detailed

provision for appointment of arbitrators by the High

Court or the Supreme Court. In terms of sub-sections

(4), (5) or (6) of Section 11, the High Court would

make an appointment in case of an arbitration other

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than international commercial arbitration. In case of

international commercial arbitration such

appointments would be made by the Supreme Court.

33. Paragraph 10 of Nilesh Ramanbhai Patel vs. Bhanubhai

Ramanbhai Patel (supra) extracts Section 29-A, which was inserted

in the said Act by virtue of the Amending Act 3 w.e.f. 23.10.2015.

Then in paragraph 11 to 16, it is observed thus :

“11. Perusal of this section would show that time

limits have been introduced for completion of

arbitral proceedings. Sub-section (1) of Section 29A

provides that the award shall be made within a

period of twelve months from the date the Arbitral

Tribunal enters upon the reference. This expression

“to have entered upon the reference” is also

explained through the explanation below sub-section

(1). Sub-section (2) is in the nature of incentive for

completing the arbitral proceedings expeditiously.

Sub-section (3) of Section 29A provides for

extension of such period as specified in sub-section

(1) by consent of the parties for a period not

exceeding six months. Sub-section (4) of Section 29A

provides that if the award is not made within the

period specified in subsection (1) or the extended

period specified in sub-section (3), the arbitrator's

mandate shall terminate, unless the Court has, either

prior to or after expiry of the period, extended the

period. Sub-section (5) of Section 29A provides that

the extension under sub-section (4) would be

granted on an application of any of the parties only

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for sufficient cause and on such terms and

conditions as may be imposed by the Court. Sub-

section (6) of Section 29A which is of considerable

importance, provides that while extending the

period referred under subsection (4), it would be

open for the Court to substitute one or all of the

arbitrators and if such substitution is made, the

arbitral proceedings shall continue from the stage

already reached and on the basis of evidence or

material already collected. As per sub-section (7) the

re-constituted Tribunal shall be deemed to be in

continuation of the previously appointed arbitral

Tribunal. Under sub-section (8) the Court is given

power to impose actual or exemplary cost on any of

the parties. This section makes detailed provisions

providing time period for completion of arbitration,

for extension of time such time, who can extend such

time and under what circumstances and subject to

what conditions the time may be extended. It also

provides that if the award is not passed within the

initial period or extended period, the mandate of the

arbitrator would terminate. Section 29A of the Act is

thus a complete Code by itself.

12. In case of State of West Bengal v. Associated

Contractors, (2015) 1 SCC 32, the Supreme Court

interpreted the term ‘Court’ as defined under Section

2(1)(e) of the Act as to mean only the Principal Civil

Court of original jurisdiction in a district or High

Court having civil jurisdiction in the State. No other

Court, including the Supreme Court, is contemplated

under Section 2(1)(e) of the Act. In case of State of

Jharkhand v. Hindustan Construction Company

Ltd., (2018) 2 SCC 602, this was further elaborated

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by a Constitutional Bench of the Supreme Court

holding that the definition of term ‘Court’ contained

in Section 2(1)((e) of the Act was materially different

from its predecessor section contained in Section

2(c) of the Arbitration Act, 1940 and that Supreme

Court cannot be considered to be a Court within the

meaning of Section 2(1)(a) even if it retains seisin

over the arbitral proceedings. The decision in case of

Associated Contractor was affirmed.

13. Ordinarily therefore I would have accepted the

contention of learned advocate Shri Mehta that the

term ‘Court’ defined in Section 2(1)(e) in the context

of the power to extend the mandate of the arbitrator

under sub-section (4) of Section 29A would be with

the principal Civil Court. However, this plain

application of the definition of term ‘Court’ to

Section 29A of the Act poses certain challenges. In

this context one may recall that the definition clause

of subsection (1) of Section 2 begins with the

expression “in this part, unless the context otherwise

requires”. Despite the definition of term ‘Court’

contained in Section 2(1)(e) as explained by the

Supreme Court in above noted judgments, if the

context otherwise requires that the said term should

be understood differently, so much joint in the play

by the statute is not taken away.

14. As is well-known, the arbitration proceedings

by appointment of an arbitrator can be triggered in

number of ways. It could be an agreed arbitrator

appointed by the parties outside the Court, it could

be a case of reference to the arbitration by Civil

Court in terms of agreement between the parties, it

may even be the case of appointment of an arbitrator

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by the High Court or the Supreme Court in terms of

subsection (4), (5) and (6) of Section 11 of the Act.

The provisions of Section 29A and in particular sub-

section (1) thereof would apply to arbitral

proceedings of all kinds, without any distinction.

Thus the mandate of an arbitrator irrespective of the

nature of his appointment and the manner in which

the arbitral Tribunal is constituted, would come to

an end within twelve months from the date of

Tribunal enters upon the reference, unless such

period is extended by consent of the parties in term

of sub-section (3) of Section 29A which could be for

a period not exceeding six months. Sub-section (4)

of Section 29A, as noted, specifically provides that, if

the award is not made within such period, as

mentioned in sub-section (1) or within the extended

period, if so done, under subsection (3) the mandate

of the arbitrator shall terminate. This is however

with the caveat that unless such period either before

or after the expiry has been extended by the Court.

In terms of sub-section (6) while doing so it would

be open for the Court to substitute one or all the

arbitrators who would carry on the proceedings from

the stage they had reached previously.

15. This provision thus make a few things clear.

Firstly, the power to extend the mandate of an

arbitrator under sub-section (4) of Section 29A

beyond the period of twelve months or such further

period it may have been extended in terms of sub-

section (3) of Section 29A rests with the Court.

Neither the arbitrator nor parties even by joint

consent can extend such period. The Court on the

other hand has vast powers for extension of the

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period even after such period is over. While doing so

the Court could also choose to substitute one or all of

the arbitrators and this is where the definition of

term ‘Court’ contained in Section 2(1)(e) does not fit.

It is inconceivable that the legislature would vest the

power in the Principal Civil Judge to substitute an

arbitrator who may have been appointed by the High

Court or Supreme Court. Even otherwise, it would be

wholly impermissible since the powers for

appointment of an arbitrator when the situation so

arises, vest in the High Court or the Supreme Court

as the case may be in terms of sub-section (4), (5)

and (6) of Section 11 of the Act. If therefore there is a

case for extension of the term of an arbitrator who

has been appointed by the High Court or Supreme

Court and if the contention of Shri Mehta that such

an application would lie only before the Principal

Civil Court is upheld, powers under sub-section (6)

of Section 29A would be non-operatable. In such a

situation sub-section (6) of Section 29A would be

rendered otiose. The powers under sub-section (6) of

Section 29A are of considerable significance. The

powers for extending the mandate of an arbitrator

are coupled with the power to substitute an

arbitrator. These powers of substitution of an

arbitrator are thus concomitant to the principal

powers for granting an extension. If for valid reasons

the Court finds that it is a fit case for extending the

mandate of the arbitrator but that by itself may not

be sufficient to bring about an early end to the

arbitral proceedings, the Court may also consider

substituting the existing arbitrator. It would be

wholly incumbent to hold that under sub-section (6)

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of Section 29A the legislature has vested powers in

the Civil Court to make appointment of arbitrators

by substituting an arbitrator or the whole panel of

arbitrators appointed by the High Court under

Section 11 of the Act. If we therefore accept this

contention of Shri Mehta, it would lead to

irreconcilable conflict between the power of the

superior Courts to appoint arbitrators under section

11 of the Act and those of the Civil Court to substitute

such arbitrators under Section 29A(6). This conflict

can be avoided only by understanding the term

“court” for the purpose of Section 29A as the Court

which appointed the arbitrator in case of Court

constituted arbitral Tribunal.

16. Very similar situation would arise in case of an

international commercial arbitration, where the

power to make an appointment of an arbitrator in

terms of Section 11 vests exclusively with the

Supreme Court. In terms of Section 2(1)(e) the

Court in such a case would be the High Court either

exercising original jurisdiction or appellate

jurisdiction. Even in such a case if the High Court

were to exercise power of substitution of an

arbitrator, it would be transgressing its jurisdiction

since the power to appoint an arbitrator in an

international commercial arbitrator rests exclusively

with the Supreme Court.

34. We, therefore, have no hesitation in holding that the term

“Court” for the purpose of Section 29-A(4) would be the “Court” which

appointed the Arbitrator(s) under Section 11(6) of the Arbitration Act

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i.e. the High Court in the present case and therefore, answer the

reference thus :

(i) - In the event an Arbitral Tribunal constituted

by the High Court under Section 11(6) fails to

complete the proceedings within the stipulated

period/extended period, then an application

under Section 29-A(4) would lie to the High Court

in case of a domestic arbitration.

(ii) In answer to the second question, we opine

that in the event an Arbitral Tribunal consisting of

three Arbitrators is constituted as per Section

11(2) i.e. with agreement and consent of the

parties, fails to complete the proceedings within

the stipulated period/extended period, the

application under Section 29-A(4) would lie to the

principal Civil Court of original jurisdiction in a

district and includes the High Court in exercise of

its ordinary original jurisdiction.

35. In view of the above, the Writ Petition be placed before the

learned Single Judge for further consideration.

VALMIKI MENEZES, J. M. S. KARNIK, J.

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