Calcutta High Court
Hindustan Construction … vs Kolkata Metropolitan Development … on 20 January, 2025
Author: Shampa Sarkar
Bench: Shampa Sarkar
OCD-59
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
AP-COM/923/2024
HINDUSTAN CONSTRUCTION COMPANYLIMITED
VS
KOLKATA METROPOLITAN DEVELOPMENT AUTHORITY
BEFORE:
The Hon'ble JUSTICE SHAMPA SARKAR
Date :20th January, 2025.
Appearance:
Mr.Ratnanko Banerji, Sr. Adv.
Mr. Ankan Rai, Adv.
Mr. Ratnesh Kr. Rai, Ad.
Ms. DevanshiDeora, Adv.
Mr. Aakash Mishra, Adv.
...for the petitioner.
Mr. Kishore Dutta, Sr. Adv.
Mr. SirsanyaBandopadhyay, Sr. Standing Counsel.
Mr. AvishekGuha, Adv.
Mr. AnkushMajumdar, Adv.
Ms. DebikaMisra, Adv.
. . . for the respondent.
The Court: This is an application under Section 14 read with
Section 11(6) of the Arbitration and Conciliation Act, 1996.
The petitioner prays that the Court must hold that the mandate of
the learned Arbitrator had terminated. Prayer is also made to appoint a
substitute Arbitrator. The contention is that the learned Arbitrator was
disqualified by law, at the stage of his appointment. The appointment was
made on 24th June, 2022, whereas, upon promulgation of the Consumer
Protection Act, 2019, the Arbitrator who was the President of the State
2
Consumer Disputes Redressal Commission, Andaman and Nicobar Island
was debarred by the said Act from undertaking duties as an Arbitrator.
When the petitioner came to learn about such disqualification, it
approached the learned Arbitrator by a letter, asking the learned Arbitrator
to recuse. The learned Arbitrator by a detailed order arrived at a conclusion
that the disqualification would not operate in this regard.
Upon hearing the parties, this Court, prima facie, finds that an
arguable case has been made out by the petitioner. Although, the
appointment of the learned Arbitrator as the President of the State
Commission was in terms of the Rules framed under the Consumer
Protection Act, 1986, the said Rule was repealed by the Andaman and
Nicobar Islands Consumer Protection Rules, 2021, dated August 25, 2021.
The Rules of 2021, were framed under the Consumer Protection Act, 2019.
Rule 27(4) prescribed that the President or Member of the Commission could
not undertake any arbitration work while functioning as a full time
President. The Act of 2019 does not contemplate appointment of part time
President. In my prima facie view, the learned Arbitrator was officiating as a
President of the Commission and the appointment as an Arbitrator was
made in 2022 by the Hon’ble Chief Justice of this Court. Rule 33 and 34 do
not, in my prima facie view, save the earlier Rules on the basis of which the
learned Arbitrator was appointed as a part time President of the State
Commission. The appointment of the learned Arbitrator as the President of
the State Commission was saved by Section 45 of the 2019 Act and any
person appointed as President or a Member by the earlier Rules could hold
office as President or Member till the completion of his term, in terms of the
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new Act of 2019. In my prima facie view, the learned Arbitrator was barred
by the Rules of 2021 to accept the duty of a learned Arbitrator, upon being
so appointed by the referral court.
Under such circumstances, this Court finds it necessary and
expedient to stay the proceedings before the learned Arbitrator, till the
delivery of judgment. Otherwise, the situation may become irreversible.
Hearing is concluded and the matter is reserved for judgment.
(SHAMPA SARKAR, J.)
pa/arsad
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