Calcutta High Court
M/S. Hrd Builders Pvt.Ltd vs M/S. Damodar Valley Corporation on 9 June, 2025
Author: Shampa Sarkar
Bench: Shampa Sarkar
ORDER OC - 12
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
AP-COM/226/2025
M/S. HRD BUILDERS PVT.LTD.
VS
M/S. DAMODAR VALLEY CORPORATION
BEFORE:
The Hon'ble JUSTICE SHAMPA SARKAR
Date: 9th June, 2025.
Appearance:
Mr. A. Trivedi, Adv.
Ms. Amrita Panja Moulick, Adv.
Mr. Bhavesh Garodia, Adv.
Ms. Shivangi Agarwal, Adv.
...for petitioner.
Mr. Samrat Sen, Sr. Adv.
Mr. Prasun Mukherjee, Adv.
Mr. Deepak Agarwal, Adv.
...for respondent.
1. This application was filed for extension of mandate of the learned arbitral
tribunal which expired on February 9, 2025. Upon extensive hearing
given to the parties, this Court finds that this application should be
described as an application under Section 29A read with Sections 14 and
15 of the Arbitration and Conciliation Act, 1996. Liberty is granted to the
petitioner to correct the description of the application.
2. It is brought to the notice of the Court that the learned presiding
arbitrator expired and the nominee arbitrators thereafter failed to come to
a consensus with regard to appointment of the presiding arbitrator.
Finding no other alternative, the petitioner approached the Institute of
Engineers (India) having its office at Kolkata for appointment of a
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presiding arbitrator as per the terms of the agreement. Although the said
application before the Institute of Engineers (India) was filed by the
petitioner during the continuance of the mandate of the arbitral tribunal,
the Institute of Engineers appointed the presiding arbitrator on February
17, 2025 i.e. after the mandate had expired.
3. Mr. Sen, learned senior advocate appearing for the respondent submits
that the Institute of Engineers (India) did not have the jurisdiction to
appoint a presiding arbitrator when the mandate of the learned tribunal
had expired. Thus, the presiding arbitrator does not have any authority to
act as such. This Court cannot extend the mandate of a defunct arbitral
tribunal.
4. The parties agree before this Court, that the presiding arbitrator was
appointed after the termination of the mandate. Although the law
provides that the arbitral tribunal could continue during the pendency of
an application for extension of the mandate, in my view, such provision
cannot be extended to the exercise undertaken by the Institute of
Engineers (India) before which the application for appointment of a
presiding arbitrator, upon demise of the erstwhile presiding arbitrator,
was pending. The petitioner had taken the correct recourse.
Unfortunately, when the mandate had expired, the appointment of the
presiding arbitrator was made. Parties thus submit before this court that,
under such circumstances, this Court must appoint a presiding arbitrator
upon extending the mandate of the arbitral tribunal. They agree that a
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presiding arbitrator should be appointed in exercise of powers under Sub-
Section (6) of Section 29A of the said Act.
5. Under such circumstances, this Court is of the view that the appointment
of the presiding arbitrator by the Institute of Engineers (India) is contrary
to law. This Court appoints Hon’ble Justice Aloke Chakrabarti, former
Judge of this Court, as the presiding arbitrator in the matter. This
appointment is subject to compliance of Section 12 of the Arbitration and
Conciliation Act, 1996. The proceeding shall continue from the stage it
was last held. The remuneration of the arbitral tribunal will be as per the
Fourth Schedule of the Act. The mandate of the arbitral tribunal is
extended for a period of one year from the date of communication of this
order.
6. AP-COM/226/2025 is disposed of.
(SHAMPA SARKAR, J.)
S. Kumar / R.D. Barua