The termination of the mandate of the Arbitrator due to non-completion of the arbitration proceedings within the time fixed by the High Court, is the subject matter of challenge in the present case. From the judgment of the Apex Court, it is clear that the first part deals with reference to arbitral proceedings before the Arbitrary Tribunal and the Amendment Act would apply even to Arbitral proceedings commenced before the amendment, if the parties otherwise agree. In the instant case, we do not find any such consent being given by any of the parties warranting applicability of the amended Act, since the arbitration proceedings came to be initiated prior to the amendment. Further Section 29-A of the Amendment Act, prescribes time limit for completion of arbitral proceedings. Therefore the parties may opt to deal under the New Act even in cases which are pending before the Arbitrator as on the date of commencement of the Amendment Act. On such option being exercised, the parties are bound under the provisions of New Act. As observed by us earlier, in the instant case, we do not find any such consent being given by the parties seeking applicability of the Amendment Act, 2015. Therefore, the argument of the learned counsel for the respondents that the arbitrator is de jure disqualified in view of Section 12 (5) of the Act cannot be accepted. For the aforesaid reasons, the Civil Revision Petition is allowed holding that the order under challenge terminating the mandate of the arbitrator is illegal and incorrect, and accordingly, the same is set aside.

Sri Justice
C.Praveen Kumar


Mrs. Justice
T. Rajani
HONBLE SRI JUSTICE C.PRAVEEN KUMAR  AND HONBLE SMT. JUSTICE T. RAJANI             

C.O.M.C.A.No. 2 of 2018  and batch

07.09.2018

M/s. Harpreet Singh Chhabra and four others....  APPELLANTS
             
 Mrs. Suneet Kaur Sahney and eight others.. RESPONDENTS   


Counsel for Appellant:SRI M.V.PRATAP KUMAR   
     
Counsel for Respondents: SRI B.CHANDRASEN REDDY     

<GIST :

>HEAD NOTE : 

? Cases referred :
1. (1997) 3 SCC 261
2. (2003) 6 SCC 641
3. (2003) 6 SCC 675
4. (2010) 8 SCC 329
5. (2007) 9 SCC 625
6. 2013 SCC online Bomb. 547
7. 2008 (5) MHLJ 749
8. (1995) 5 SCC 329
9. (2005) 1 MHLJ  884
10. MANU/MH/0504/2012 
11. (2004) 3 ARBLR 146 (Delhi)
12. (2010) 2 SCC 385
13. 2015 (2) ARBLR 242 (Delhi)
14. (2018) SCC Online SC 232
15. (2007 (1) Arb.LR 564 (Gauhati) (DB)
16. (2008) 6 Bombay CR 611
17. AIR 2015 Calcutta 24
18. AIR 2016 Cal. 213
19. (2016) 6 ARBLR 426 (Delhi)


HONBLE SRI JUSTICE C.PRAVEEN KUMAR       

AND

HONBLE SMT. JUSTICE T. RAJANI   
I.A.No.1 of 2018
In/and
C.O.M.C.A.No. 2 of 2018

JUDGMENT: (per Honble Sri Justice C.Praveen Kumar) 

1)      The termination of the mandate of the Arbitrator due
to non-completion of the arbitration proceedings within the
time fixed by the High Court, is the subject matter of
challenge in the present case.
2)      Heard Sri S.Ravi, learned Senior Counsel appearing for
Sri M.V.Pratap Kumar, learned counsel appearing for the
petitioners and Sri Sandeep Sharma, for Sri B.Chandrsen
Reddy, learned counsel appearing for the respondents.
3)      By an order dated 29.12.2017, the Judge, Commercial
Court-cum-XXIV Additional Chief Judge, City Civil Court,
Hyderabad, while terminating the mandate of the arbitrator
directed the parties to approach the Honble High Court for
appointment of an arbitrator, under Section 15 (2) of the
Arbitration and Conciliation Act, 1996 (for short the
Arbitration Act).  Assailing the same, the petitioners herein
initially filed an appeal under Section 13 (1) of the
Commercial Courts, Commercial Division and Commercial 
Appellate Division of High Courts Act, 2015 (for short the
Commercial Courts Act) on 05.03.2018 after obtaining a
certified copy of the Order.  Though the appeal was
numbered, but realizing that an appeal will not lie against
the said order filed I.A.No.5 of 2018 under Section 151 of
C.P.C., seeking conversion of the appeal into a Civil Revision
Petition under Article 227 of the Constitution of India.  It is
pleaded that filing of an appeal is a bonafide mistake and
that grave prejudice would be caused if the petitioners are
not allowed to agitate their grievance by converting the
appeal into revision.
4)      The same was opposed contending that in view of
Section 8 of the Commercial Courts Act, no revision shall be
entertained against an interlocutory order of Commercial
Court including an order on the issue of jurisdiction, and any
such challenge, subject to provision of Section 13 of the
Commercial Courts Act, shall be raised only in an appeal
against the decree of the Commercial Court.
5)      Section 13 of the Commercial Courts Act postulates
that any person aggrieved by any of the decision of the
Commercial Court or Commercial Division of High Court may 
appeal to the Commercial Appellate Division of that High
Court within a period of 60 days from the date of judgment
or the order, as the case may be.  Provided that an appeal
shall lie from such orders passed by a Commercial Division or
a Commercial Court that are specifically enumerated under
Order 43 of C.P.C. as amended by the Commercial Courts  
Act and Section 37 of the Arbitration Act.  It appears that
the present application seeking conversion is filed on a
premise that an appeal shall lie from the orders passed by
the Commercial Court that are specifically enumerated
under Section 43 C.P.C. or under Section 37 of the
Arbitration and Conciliation Act, 1996 only.
6)      After considering the law on the subject and also the
power of the Court under Article 227 of the Constitution of
India, the Constitution Bench of the Apex Court in
L.Chandra Kumar v. Union of India  held that the
jurisdiction conferred on the Supreme Court under Article 32
of the Constitution of India and on the High Courts under
Articles 226 and 227 of the Constitution is a part of the basic
structure of the Constitution, forming its integral and
essential feature, which cannot be tampered with much less
taken away even by constitutional amendment, not to speak 
of a parliamentary legislation.
7)      In State v. Navjot Sandhu  the Apex Court held that
the jurisdiction under Article 227 cannot be limited or
fettered by any Act of the state Legislature; the supervisory
jurisdiction is wide and can be used to meet the ends of
justice, also to interfere even with an interlocutory order,
but however expressed that the said power must be
exercised sparingly, only to move subordinate courts and
Tribunals within the bounds of their authority to see that
they obey the law. The Apex Court further held that the
power is not available to be exercised to correct mere errors
(whether on the facts or laws) and also cannot be exercised
"as the cloak of an appeal in disguise".
8)      In Suryadev Rai v. Ram Chander Rai and others  the
Apex Court reiterated the principle laid down in the
judgments referred to above,  and held as under:
We are of the opinion that the curtailment of
revisional jurisdiction of the High Court does not take
away  and could not have taken away - the
constitutional jurisdiction of the High Court to issue a
writ of certiorari to a civil court nor the power of
superintendence conferred on the High Court under
Article 227 of the Constitution is taken away or
whittled down. The power exists, untrammelled by
the amendment in Section 115 of the CPC, and is
available to be exercised subject to rules of self
discipline and practice which are well settled.

9)      In Shalini Shyam Shetty and another v. Rajendra
Shankar Patil  , after considering the history the power of
superintendence under article 227 of the Constitution of
India, held as under:
62. On an analysis of the aforesaid decisions of this
Court, the following principles on the exercise of
High Court's jurisdiction under Article 227 of the
Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is
different from a petition under Article 227. The
mode of exercise of power by High Court under these
two Articles is also different.
(b) In any event, a petition under Article 227 cannot
be called a writ petition. The history of the
conferment of writ  jurisdiction on High Courts is
substantially different from the history of
conferment of the power of Superintendence on the
High Courts under Article 227 and have been
discussed above.
(c) High Courts cannot, on the drop of a hat, in
exercise of its power of superintendence under
Article 227 of the Constitution, interfere with the
orders of tribunals or Courts inferior to it. Nor can it,
in exercise of this power, act as a Court of appeal
over the orders of Court or tribunal subordinate to it.
In cases where an alternative statutory mode of
redressal has been provided, that would also operate
as a restrain on the exercise of this power by the
High Court.
(d) The parameters of interference by High Courts in
exercise of its power of superintendence have been
repeatedly laid down by this Court. In this regard the
High Court must be guided by the principles laid
down by the Constitution Bench of this  Court in
Waryam Singh (AIR 1954 SC 215) and the principles in
Waryam Singh (supra) have been repeatedly followed
by subsequent Constitution Benches and various
other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra),
followed in subsequent cases, the High Court in
exercise of its jurisdiction of superintendence can
interfere in order only to keep the tribunals and
Courts subordinate to it, `within the bounds of their
authority'.
(f) In order to ensure that law is followed by such
tribunals and Courts by exercising jurisdiction which
is vested in them and by not declining to exercise the
jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f),
High Court can interfere in exercise of its power of
superintendence when there has been a patent
perversity in the orders of tribunals and Courts
subordinate to it or where there has been a  gross
and manifest failure of justice or the basic principles
of natural justice have been flouted.
(h) In exercise of its power of superintendence High
Court cannot interfere to correct mere errors of law
or fact or just because another view than the one
taken by the tribunals or Courts subordinate to it, is
a possible view. In other words the jurisdiction has to
be very sparingly exercised.
(i) High Court's power of superintendence under
Article 227 cannot be curtailed by any statute. It has
been declared a part of the basic structure of the
Constitution by the Constitution Bench of this Court
in the case of L. Chandra Kumar vs. Union of India &
others reported in (1997) 3 SCC 261 and therefore
abridgement by a Constitutional amendment is also
very doubtful.
(j) It may be true that a statutory amendment of a
rather cognate provision, like Section 115 of the Civil
Procedure Code by the  Civil Procedure Code
(Amendment) Act, 1999 does not and cannot cut
down the ambit of High Court's power under Article
227. At the same time, it must be remembered that
such statutory amendment does not correspondingly
expand the High Court's jurisdiction of
superintendence under Article 227.
(k) The power is discretionary and has to be
exercised on equitable principle. In an appropriate
case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and
unfettered power of the High Court under Article
227, it transpires that the main object of this Article
is to keep strict administrative and judicial control
by the High Court on the administration of justice
within its territory.
(m) The object of superintendence, both
administrative and judicial, is to maintain efficiency,
smooth and orderly functioning of the entire
machinery of justice in such  a way as it does not
bring it into any disrepute. The power of
interference under this Article is to be kept to the
minimum to ensure that the wheel of justice does
not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain
public confidence in the functioning of the tribunals
and Courts subordinate to High Court.
(n) This reserve and exceptional power of judicial
intervention is not to be exercised just for grant of
relief in individual cases but should be directed for
promotion of public confidence in the administration
of justice in the larger public interest whereas
Article 226 is meant for protection of individual
grievance. Therefore, the power under Article 227
may be unfettered but its exercise is subject to high
degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this
power will be counter-productive and will  divest this
extraordinary power of its strength and vitality.
10)     The issue raised in the instant case as to the
maintainability of the Civil Revision Petition under Article
227 of the Constitution of India, vis--vis Section 8 and 13 of
the Commercial Courts Act, 2015, came up for consideration
recently before a Bench of Gujarath High Court in State of
Gujarat v. Union of India (R/Special Civil Application
No.737 of 2018).  It was also a case where a preliminary
objection was raised as to the power of High Court under
Article 227 of the Constitution of India to entertain a Civil
Revision Petition against an order passed by the Commercial
Court. Referring to the judgments of the Apex Court on the
issue, the Bench of Gujarat High Court held as under:
Considering the law laid down by the Apex Court,
we are of the opinion that bar contained under
Section 8 of the Commercial Courts Act shall not
affect the jurisdiction of the High Court under Article
227 of the Constitution of India.  If the contention on
behalf of the respondents that considering Section 8
of the Commercial Courts Act, even the writ
jurisdiction under Article 227 of the Constitution of
India is barred, in that case, such a provision would
suffer from the vice of unconstitutionality as
observed by the Honble Supreme Court in the
aforesaid decisions.  The power vested in the High
Courts to exercise judicial superintendence over the
decision of the Courts and Tribunals within their
respective jurisdictions is part of the basic structure
of the Constitution and no legislature can take away
such power of superintendence conferred under
Article 227 of the Constitution of India.  It is required
to be noted that therefore, even the legislature,
while enacting Section 8 of the Commercial Courts
Act, seems to have wisely not used the word
maintainable but has used the word entertained.
At this stage, it is also required to be noted that
where the statute specifically provided that against
the decision of the Tribunal, only an appeal under
Article 136 of the Constitution before the Honble
Supreme Court would be maintainable, the Honble
Supreme Court in the case of L.Chandra Kumar v.
Union of India and others (supra) has specifically
observed and held that the powers of the supervisory
jurisdiction of the High Court under Article 227 of the
Constitution against the decision of the Tribunals
shall still be available and the aggrieved party can
approach the High Court under Article 227 of the
Constitution.  Therefore, it is observed and held that
Section 8 of the Commercial Courts Act shall not
affect the powers of the High Court under Article 227
of the Constitution of India against the order passed
by the Commercial Court.  However, at the same
time, the powers under Article 227 of the
Constitution of India must be exercised sparingly and
in exceptional cases only, more particularly, looking
to the object and purpose of Section 8 of the
Commercial Courts Act, ie., speedy disposal of
commercial disputes.
11)     In view of the judgments referred to above the
argument that the High Court cannot entertain a Civil
Revision Petition under Article 227 of the Constitution of
India in view of Section 8 of the Act, cannot be accepted.
12)     One other objection, which came to be raised is that if
revisions are sought to be entertained under Article 227 of
the Constitution of India, the purpose for which the
Commercial Courts Act has been enacted would get
defeated.  In other words it is pleaded that floodgates would
be opened permitting every order passed by the Commercial
Court be challenged under Article 227 of the Constitution of
India.
13)     In Coal India Ltd. And others v. Saroj Kumar Mishra
the Apex Court observed that merely because there is
possibility of flood-gate litigation, a valuable right of a
citizen cannot be taken away.  In para No.19, the Apex
Court observed as under:
19. The floodgate argument also does not appeal to
us.  The same appears to be an argument of
desperation.  Only because, there is possibility of
floodgate litigation, a valuable right of a citizen
cannot be permitted to be taken away.  This Court is
bound to determine the respective rights of the
parties.
14)     It is also to be noted that every application filed under
Article 227 of Constitution of India shall not be entertained.
In fact, the law does not contemplate that a Civil Revision
Petition under Article 227 of the Constitution of India is a
statutory right which should be entertained.  As observed by
us earlier, in Surya Dev Rai case (3 supra) the Honble
Supreme Court has observed that care, caution and
circumspection needs to be exercised when the supervisory
jurisdiction is sought to be invoked, during the pendency of
any suit or proceedings in a subordinate Court and the error
though calling for correction is yet capable of being
corrected and the conclusion of the proceedings in an appeal
or revision preferred there against and entertaining a
petition invoking supervisory jurisdiction of the High Court
would obstruct the smooth flow and/or early disposal of the
suit or proceedings.  Therefore, the Court would interfere
only where the error is such, that if not corrected at that
very moment, may become incapable of correction at a later
stage.
15)     Keeping in view the object and purpose of enactment
of Commercial Courts Act, the Courts would exercise their
power under Article 227 of the Constitution of India.
Therefore, we hold that the supervisory power of the High
Court under Article 227 of the Constitution of India is not
taken away by Section 8 of the Commercial Courts Act and
the same cannot be restricted on the ground that it would
open flood-gates of litigation in the High Court.  In view of
the above, I.A.No.1 of 2018 is allowed permitting the
petitioners to convert the appeal into a Civil Revision.
16)     Coming to the facts in issue.  As stated by us earlier,
the present C.R.P. came to be filed questioning the order of
the Commercial Court terminating the mandate of the
Arbitrator on the ground that arbitration proceedings were
not completed within the time fixed by the High Court in the
review petition.
17)     For the sake of convenience the parties will
hereinafter referred to as arrayed in C.O.P.No.81 of 2017.
18)     An application under Section 14 (2) and Section 15 of
the Arbitration Act, came to be filed by the petitioners
therein and respondents herein seeking to terminate the
mandate of the 6th respondent therein (8th respondent
herein) on the ground that he has become de jure and de
facto, unable to perform his functions and failed to act
without un-due delay.  Petitioners 6 and 7 are companies
registered under the Companies Act, 1956, organized and
controlled by the family of petitioner Nos.1 to 3.  Petitioner
No.5 is a partnership entity.  Petitioner No.1 is the wife of
petitioner No.3 and mother of petitioner No.4 and petitioner
No.2 is the mother of petitioner No.3.  During the years
2007-2010, the petitioners lent a sum of Rs.20.00 crores to
the respondents.  As the said amount was not returned, the
petitioners filed suits for recovery of money and also a
complaint under Section 138 of the Negotiable instrument
Act.  It is said that as a counter blast, the respondents got
registered a Criminal Case vide Cr.No.59 of 2012, against the
petitioners.   In the said case, petitioners 3 and 4 were
arrested by the Central Crime Station, Hyderabad and while
in custody they were forced to agree to pay a sum of Rs.9.00
crores to the respondent.  Under duress and force, the
petitioners are alleged to have signed the settlement deed
dated 30.04.2012, letter of guarantee dated 30.04.2012 and
ratification deed dated 03.05.2012.  It is said that the
petitioners were not allowed to read the contents of the
documents, which they signed and they were not aware
about the contents, including the appointment of the
arbitrator.  It is said that only after their release on bail,
they were able to read the contents of the documents
signed by them, were shocked to learn about the
appointment of an arbitrator.  As such, an application under
Section 11 (5) and (6) of the Arbitration Act, came to be
filed questioning the appointment of arbitrator, which was
dismissed by this Court on 15.03.2013.  A Review application
came to be filed, which was also dismissed on 13.09.2013.
The learned arbitrator issued notices dated 25.07.2012 and
passed orders on 15.03.2013 and 13.09.2013 initiating
arbitration proceedings.  On 23.02.2014, an application
under Section 12 of the Arbitration Act came to be filed
before the sole Arbitrator,  to direct the Arbitrator to
withdraw himself from the proceedings with immediate
effect on the ground of bias.  Pending application under
Section 12 of the Arbitration Act, the petitioners filed S.L.P.
(Civil) Nos, 14146 and 14147 of 2014 before the Honble
Supreme Court against the orders passed in Arbitration
Application No.54 of 2012 and Review Application No.493 of
2013.
19)     On 11.08.2014, the Apex Court dismissed the said
S.L.P.s, directing the Arbitrator to dispose of the application
in accordance with law, without being influenced by the
observations of the High Court.  Subsequent to the order
passed by the Apex Court, the petitioners filed an
application seeking to amend the grounds in Section 12
application.    On 15.11.2014, the said application came to
be dismissed. Challenging the same, Arbitration O.P.No.2889
of 2014 came to be filed before the City Civil Court,
Hyderabad, seeking termination of the sole arbitrator on the
ground of bias, and also to direct the arbitrator to terminate
his mandate as per Sections 12 and 14 of the Arbitration Act.
It was further pleaded that a retired judge may be
appointed as an arbitrator, to resolve the dispute.
20)     On 25.03.2015 the proceedings before the Arbitrator
were stayed by the civil Court and on 30.04.2015 the
Arbitration O.P.No.2889 of 2014 was dismissed.  Challenging
the same, C.R.P.No.1861 of 2015  came to be filed before
this Court.  Since the plea of undue delay on the part of the
arbitrator to act ie., to complete the arbitral proceedings
within the stipulated time of five months was raised for the
first time during the course of arguments before the Court
below and a passing reference was made there to and
referred to few judgments by the petitioners therein in that
regard, held that the Court could not have recorded any
finding on facts such as to whether the delay of the
arbitrator to act was undue or not; and, if so, whether the
petitioners therein had waived such a right.  Observing so,
and rejecting the plea of bias, the said C.R.P. was
dismissed.  The operative portion of the order is as under:
Viewed from any angle, the mandate of the 6th
respondent-arbitrator cannot be terminated, on
the basis of the contentions urged by the
petitioner, in the petition filed by them before
the Court below under Section 14 (2) of the Act.
Suffice it to make it clear that the order now
passed by us shall not preclude the petitioners
herein from agitating their claim of undue delay
on the part of the arbitrator, in concluding
arbitration proceedings and in passing the
award, in appropriate legal proceedings; or to
raise all the contentions urged before this
Court, on whether circumstances exist that give
rise to justifiable doubts as to the arbitrators
independence or impartiality, in proceedings
under Section 34 of the Act, after an award is
passed. Subject to the observations made
hereinabove, the Civil Revision Petition fails
and is, accordingly, dismissed.
21)     It is to be noted here that pending C.R.P. before this
Court, there was stay of arbitration proceedings from
04.05.2015 till 16.03.2016.
22)     From the narration of events till now, it is very clear
that the arbitration proceedings were stayed from
25.03.2015 to 30.04.2015 and again from 04.05.2015 till
16.03.2016.  In view of the liberty given by this Court, the
petitioners filed Arbitration O.P.No.752 of 2016
(renumbered as C.O.P.No.81 of 2017), as a result of which
the arbitration proceedings were again stayed from
13.04.2016, till the said C.O.P. was disposed of by the
impugned order on 29.12.2017.
23)     Learned counsel for the petitioners herein would
submit that there was no undue delay on the part of the sole
arbitrator in conducting the arbitral proceedings and on the
other hand, it is the respondents/petitioners, who are
responsible for the delay.  In other words it is pleaded that
though in the review application, this Honble Court fixed a
time limit of five months for disposing of the arbitral
proceedings, but the matter was being stayed by one forum
or the other, at the instance of the petitioners.  It is further
pleaded that there was no justification for the petitioners to
plead the said ground, since the time granted gets
automatically extended, due to the conduct of the parties in
participating in the arbitration proceedings even after expiry
of the said period, by waiving their right to insist on the
time period to be followed by the arbitrator.
24)     It is further pleaded that in the S.L.P., filed before the
Honble Supreme Court, assailing the order passed in Review
Application and in Arbitration Application No.54 of 2012, the
petitioners have specifically pleaded in ground No.S, that
the Honble High Court was not correct in directing the
arbitrator to conclude the proceedings within a period of
five months, as the issue is complicated and that the
Arbitrator would require more time to adjudicate the
dispute.  That being so, whether it is permissible for the
respondents herein now to contend that the proceedings
before the Arbitrator stand terminated, as he failed to
complete the proceedings within the time fixed.  It is
further urged that in the petition filed under Section 12 of
the Arbitration Act, the petitioners never raised any
objection with regard to undue delay.  Their main plea
before the Arbitrator was of bias.  It is further urged that
though Section 14 (1) of the Arbitration Act provides for
termination of the mandate of the arbitrator in the event
the arbitrator unable to act without undue delay but not in a
case where the delay was at the instance of a party to the
proceedings.  In support of the said plea taken, learned
counsel for the petitioners relies upon the following
citations.
1.      M/s. Hindustan Wires Limited v. Mr. R.Suresh
2.      Jayesh H.Pandya v. Subhtex India Limited
3.      Bhupinder Singh Bindra v. Union of India and
another
4.      Vijay Hiralal v. J.N.Port Trust
5.      Snehadeep Auto Centre v. Hindustain Petroleum
Corporation Limited
6.      Shyam Telecom Ltd., v.  Arm Ltd.
25)     On the other hand, learned counsel for the
respondents would contend that when the order passed by
this Honble High Court in a review fixing the time limit for
completing the arbitral proceedings was communicated to
the arbitrator on 28.09.2013, itself there was no
justification for him to continue with the proceedings even
after 28.02.2014.  It is further urged that though the
arbitrator in the docket orders dated 07.02.2014 and
16.02.2014, observed that the Arbitral proceedings have to
be completed within the time fixed, but no application came
to be filed by either of the party or the arbitrator, seeking
extension of time.  It is further urged that even assuming
that the period of five months is to be calculated from
11.08.2014 ie., when the S.L.P.s were dismissed and the said
order was communicated to the Arbitrator in the month of
September, 2014, the period of five months gets expired in
the month of February, 2015.  In the absence of any stay
after September, 2014, it is urged that the order impugned
herein cannot be found fault with.
26)     Insofar as the argument on delay, the petitioners are
now estopped from raising such plea, since it is pleaded that
after filing of appearance on 26.10.2013, the respondents
therein took time for filing vakalath and counters to the
memo filed by the petitioners on 10.11.2013 and
23.11.2013.  Thereafter, a claim-petition was filed on
25.01.2014 to which the respondents sought adjournment on
07.02.2014.  On 16.12.2014 the petitioners/respondents
therein failed to appear, and on 23.02.2014, an application
under Section 12 of the Arbitration Act came to be filed
before the Arbitrator.  In view of the above, it is pleaded
that the delay on the part of the petitioners/respondents is
misconceived and lacks merit.
27)     Insofar as the plea of waiver by conduct, while
explaining the purport of the judgments relied upon by the
counsel for the petitioners, he would contend that in all the
cases referred to above, time was fixed in the agreements
entered into by the parties and the objecting party had
rightly and willingly participated in the proceedings without
any objection.  Under those circumstances, the Courts held
that by conduct the parties waived the time fixed under the
agreement.  Since the time was fixed by the Court and as
the petitioners have opposed the appointment of arbitrator
from the date of his appointment; never willingly
participated in the said proceedings and as the office of the
arbitrator has become functus officio after expiry of five
months, pleads that his mandate will automatically get
terminated.  In support of his plea, he placed reliance on
the judgment of the Apex Court in NBCC Ltd. V.
J.G.Engineering  and Haryana Packaids Pvt. Ltd., v.
Indian Oil Corporation Limited     and B.C.C.I. vs. Kochi
Cricket Private Limited . Stressing on the word to
appearing in the first part of proviso to Section 26 of the
Arbitration Act, which is not there in second part of Section
26 of the Arbitration Act and which reads as in relation to
coupled with the judgment of the Apex Court in B.C.C.I. (14
supra) the counsel would contend that since C.O.P.No.81 of
2017 was filed under Section 14 (1) of the Arbitration Act on
11.04.2016, after coming into effect of the Arbitration and
Conciliation Act, 2015, the amended Act shall apply to the
present case as well and in view of Section 12 (5) of the
Arbitration Act read with 7th schedule of the Amended Act,
the Arbitrator is de jure disqualified.
28)     Having regard to the arguments advanced by both the
counsel, it would be necessary to go into the events which
took place prior to the order passed in Arbitration
Application No.54 of 2012.  By an order dated 15.03.2013,
this Honble High Court in Arbitration Application No.54 of
2012 passed the following order:
As agreed, the applicants and the respondents
shall refer their disputes to Mr. Ravinder Singh
Sarma, whom they have already appointed as
sole Arbitrator, for resolution of dispute between
them, in terms of the arbitration clause in the
settlement deed.  The arbitrator so appointed is
at liberty to take the assistance of an
advocate/legal counsel/expert, if required, for
assessing the damaged caused.  He is at liberty to
fix his fee as also that of the fee of the
advocate/legal counsel/expert, if he so chooses
to take his or her assistance, for assessing the
damage caused.
29)     From a reading of the above, it is clear that basing on
the agreement arrived at by the applicants and respondents
the Court referred the dispute to Mr. Ravinder Singh Sarma,
who was already appointed as a sole arbitrator, for resolving
the disputes between the parties in terms of the arbitration
clause in the settlement deed.  This order which was passed
in the month of March, 2013, was sought to be reviewed by
way of Review Application No.494 of 2013.  The said Review
application was dismissed holding that the application for
review was thoroughly misconceived, as by the earlier order,
the arbitration mechanism and appointment of arbitrator
have been activated.  The Court further held that there is no
dispute that the arbitration agreement is valid and subsisting
and there is no allegation that the consent recorded by the
Court was not correct.  The Court further observed that
recording of consent earlier by the Court was not required to
be set at naught, when the parties have chosen an arbitrator
and the same arbitrator was appointed by the Court.
Therefore, the Court held that there was no illegality or
infirmity in the order passed, which was impugned in the
review application.  However, the Court directed the
learned Arbitrator to proceed with the arbitration
proceedings and to complete the same within five months
from the date of communication of the said order.  It would
be useful to refer to the relevant portion of the order, which
is as under:
This application for review is thoroughly
misconceived as by the earlier order the
arbitration mechanism and appointment of
arbitrator have been activated.  There is no
dispute that the arbitration agreement is valid
and subsisting.  There is no allegation that the
consent recorded by the Court is not correct.
Moreover, the recording of consent earlier by the
Court was not required to be set at naught.
When the parties have chosen in agreement an
arbitrator and the same arbitrator has been
accepted by this Court.  Therefore, no illegality
or infirmity in the order passed by this Court.
The review application is therefore dismissed.  I
direct the learned Arbitrator to proceed with the
arbitration proceedings and complete the same
within five months from the date of
communication of this order.
30)     After the dismissal of the review application, in the
month of September, 2013, an application under Section 12
of the Arbitration Act came to be made before the
arbitrator.  Though five months period would expire by
29.02.2014, no objection was raised with regard to the said
aspect.  The contents of the application were on bias and
the manner in which the consent was obtained for
appointment of an arbitrator.  After filing this application on
23.02.2014, S.L.P.s came to be preferred before the Apex
Court challenging the order passed in Arbitration Application
No.54 of 2012 and Review Application No.494 of 2013, which
were dismissed on 11.08.2014, directing the arbitrator to
dispose of the application un-influenced by the orders
passed by the High Court.
31)     It is to be noted here that on 09.05.2014, the Apex
Court stayed the proceedings before the Arbitrator and
thereafter on 11.08.2014 the said SLPS were dismissed with
observations referred to earlier.  On receipt of the order
passed by the Apex Court, the Arbitrator issued notices to
the parties on 22.09.2014.  On 11.10.2014, time was sought
by the respondents herein and then on 01.11.2014 an
application came to be filed to amend the grounds in Section
12 application.  On 15.11.2014, the application filed under
Section 12 of the Arbitration Act was dismissed and the
matter was adjourned to 22.11.2014 for filing of written
statement of the respondents herein.  Against the said
orders, Arbitration O.P.No.2889 of 2014 came to be filed and
the said Court stayed the proceedings before the arbitrator
on 25.03.2015.
32)     From the facts narrated above, it is clear that from
13.09.2013 there was no stay till 09.05.2014 and again from
11.08.2014 till 23.05.2015.  At the same time, it is also to be
noted that though the period of five months elapsed, no
objection was raised by the respondents for termination of
the mandate of the arbitrator on the ground of undue delay.
On the other hand, in the SLPS filed before the Apex Court,
it was specifically pleaded that the time limit of five months
prescribed by the High Court in the review application will
not be sufficient to complete the arbitration proceedings, as
it involves intricate questions in fact and law.  It would be
useful to refer to the said paragraph, which is as under:
For that the Honble High Court has wrongly
directed the learned Arbitrator to conclude the
arbitration proceedings between the parties
within five months from the date of
communication.  It is most respectfully
submitted, that the Honble High Court has
further failed to appreciate that the dispute
between the parties involves huge stakes and
therefore needs fair and proper adjudication to
provide justice to the parties.  It would be
unjust for the parties, if the Arbitrator without
application of mind would just rush to comply
with the directions of the Honble High Court. It
is submitted that looking into the complex
issues of fact and law are involved in the
matter, therefore oral evidence and cross-
examination are required in the matter.  The
fixing of time limit in the matter has seriously
prejudiced the case of the petitioners and the
petitioners do not apprehend justice.  Further,
it is very inconvenient for the petitioners to
move from Delhi to Hyderabad nearly every
week and take appropriate remedies under
pressure and paucity of time.
33)     It is also to be observed here that this plea was not
raised in the application filed under Section 12 of the
Arbitration Act and also in the amendment sought to Section
12 application.
34)     The narration of events, which are undisputed till now,
go to show that though the period of five months elapsed,
but the party, who is raising the objection now, participated
in the said proceedings without raising their finger on this
aspect.  The proceedings referred to till now, more
particularly the order in Arbitration Application No.54 of
2012 and Review Application No.494 of 2013, makes it very
clear that both the parties have consented for appointment
of Sri Ravinder Singh Sarma, as an arbitrator and the parties
also did not dispute the contents of arbitration agreement,
or in words their plea with regard to appointment of an
arbitrator has become final long back.
35)     Coming to the aspect of undue delay in completing the
proceedings, as observed by us earlier, the objecting party
participated in the said proceedings even after expiry of five
months, as fixed by this Court in the month of September,
2013 and also took a contra plea to the effect that the
period of five months fixed by the High Court may not be
sufficient to complete the proceedings, thereby giving an
implied consent, for continuation of the proceedings after
expiry of five months, more so, when such a plea was never
raised even in an application filed under Section 12 of the
Arbitration Act and also in the amendment sought to the
said application.  For the first time such an objection came
to be raised in Arbitration O.P.No.2889 of 2014.
36)     It is also an admitted fact that though the respondents
herein entered their appearance before the arbitrator on
26.10.2013, written statement came to be filed before him
only on 16.05.2015.  Therefore, it is clear that no written
statement came to be filed even after dismissal of the S.L.P.
by the Supreme Court on 11.08.2014.
37)     Thereafter, C.R.P.No.1861 of 2015 came to be filed
challenging the order in Arbitration O.P.No.2889 of 2014,
wherein this Court granted stay on 04.05.2015 which was in
force till it was dismissed on 16.03.2016.  Immediately
thereafter the present O.P. 752 of 2016 (renumbered as
C.O.P.No.81 of 2017) came to be filed on the ground of
undue delay, wherein the proceedings before the arbitrator
were stayed from 13.04.2016 till it was allowed on
29.12.2017.
38)     From the above, it is clear that except for few pockets
of period during the last five years, proceedings were
pending either before the Courts or stay of the arbitration
proceedings was in operation.  It is also to be observed here
that though counsel for the respondents herein tried to
contend that in spite of there being no stay from 13.09.2013
till 09.05.2014 and again from 11.08.2014 till 25.03.2015 and
from 04.05.2015 till 16.03.2016, the Arbitrator failed to
complete the proceedings within the time fixed, but as
observed by us earlier, written statement came to be filed
only on 16.05.2015, after their right to file written
statement, which was forfeited was subsequently set aside.
39)     As observed by us, the arbitrator has been cautioning
the parties to complete the proceedings before the expiry of
the period.  The Delhi parties, who are the respondents
herein, were directed to cooperate with the arbitral tribunal
in completing the proceedings within the time, but the
matter was getting postponed on one pretext or the other
and it cannot be said that the arbitrator was at fault.
40)     Section 14 of the Arbitration Act deals with failure or
impossibility to act.  The said section prescribe that the
mandate of an arbitrator shall get terminated and he shall
be substituted by another arbitrator, if he becomes de jure
or de facto unable to perform his functions or for other
reasons fails to act without undue delay and that he
withdraws from his office or the parties agree to the
termination of his mandate.
41)     Section 14 of the Arbitration Act would attract only
when there is undue delay.  Sub Section (1) (2) and 3 of
Section 14 of the Arbitration Act, envisage a situation where
the arbitrator may, on his own, recuse himself on objection
being taken about his functioning as an arbitrator, or where
both the parties agree to his mandate being terminated.
Section 14 (1) prescribe an automatic termination of the
mandate of the arbitrator.  In the prescribed eventualities,
there is a statutory termination of the arbitrators mandate.
In State of Arunachal Pradesh v. Subhash Projects and
Marketing Limited  a Division Bench of Calcutta High Court
held that if the facts constituting the eventualities in
Section 14 (1) are neither in dispute nor demand any proof
to be established, termination of the mandate of the
arbitrator takes place on statutory prescription.  The Court
held that where there is a controversy regarding the
grounds, which entails the termination of the mandate, the
party has to invariably approach the Court to decide on the
termination of the mandate.
42)     Dealing with the concept of undue delay and the
meaning of word de jure and defacto and Section 14 (1) (a),
a Division Bench of this Court in C.R.P.No.1861 of 2015,
after referring to the authorities on subject and to the
dictionary meaning of word dejure and defacto  and
relying upon the judgments in Priknit Retails Limited
(supra) and Shyam Telecom Limited v. ARM Limited,
observed that the incapacities referred in Section 14 (1) (a)
of the Arbitration Act, are such as to have a direct nexus
with the inability of the arbitrator to perform his functions.
This incapacity or disability should occur to the arbitrator
himself so that he becomes, as a matter of law or fact,
unable to perform his function.  The dejure impossibility
referred to in Section 14 (1) (a) is the impossibility which
occurs due to factors personal to the arbitrator, and de
facto inability occurs due to factors beyond the control of
the arbitrator.  It has been observed that mere legal
disability is not a condition precedent for invocation of
Section 14 of the Act.  The dejure inability must relate to his
ability to function.
43)     Insofar as usage of word delay in Section 14 (1) of
the Act, which relates to termination of the mandate of
arbitrator, if it is for other reasons fails to act without
undue delay.  The Division Bench observed that the word
delay is qualified by the word undue.  Undue delay, and
not mere delay, would alone justify the Court to declare the
mandate of the arbitrator as terminated.  The Division
Bench held that the word undue means unjustified,
unwarranted, unreasonable, excessive and inordinate.  In
order to declare that the mandate of the arbitrator stands
terminated, the Court must be satisfied that the delay on
the part of the arbitrator, was unjustified, inordinate or
unwarranted.  It has also held that for the Court, exercising
jurisdiction under Section 14 (2) of the Act, to declare that
the mandate of the arbitrator stands terminated, the
petitioner was not only required to plead but also to prove
that the arbitrator had failed to act without undue delay.
The word fail means neglect, go wrong or fall short of what
is expected.  What is required to plead and prove is that the
arbitrator had neglected to act without excessive or
inordinate delay.  The Division Bench further held that even
if there is a delay on the part of the arbitrator in completing
the proceedings, and to pass an award, it was open to the
parties to waive their right to object.
44)     Section 4 of the Act deal with waiver of right to
object, ie., a party who knows that any provision of this part
from which the parties may derogate, or any requirement
under the arbitration agreement, has not been complied
with and yet proceeds with the arbitration without stating
his objection to such non-compliance without undue delay
or, if the time limit is provided for stating that objection,
within that period of time, shall be deemed to have waived
his right to so object.  (C.R.P.No.1861 of 2015).
45)     In Mascon Multiservices and Consultants Private
Limited vs. Bharat Oman Refineries Limited   the Bombay
High Court held that the parties, that raise questions as to
jurisdiction, must be held to have given a go bye to the
stipulation as to time within which an award is to be made;
if a party attends a number of meetings, after the time for
making the award has expired, it would be a strong
indication of waiver.  The strength of an indication of waiver
is not necessarily directly proportional to the number of
meetings attended by a party after the stipulated time for
making the award.  It is the nature of the meeting and the
nature of the conduct of a party which is as, if not more,
important.
46)     In Hindustan Wires Limited v. R.Suresh (6 supra) a
learned Single Judge of Bombay High Court held that, in
view of the consent of both the parties for enlargement of
time to complete the arbitration proceedings and to make
an award, the mandate of the arbitrator does not come to
an end; the arbitrator does not cease to have jurisdiction to
proceed with the matter and to make an award; and even by
the conduct of both parties, the time to complete
arbitration proceeding and to make an award, stand
extended.
47)     In Jayesh H.Pandya v. Subhtex India Limited (7
supra)  the Bombay High Court held as under:
 where a party intends to assert a right of
adherence to the time prescribed by the
arbitration agreement, it must, at the earliest
opportunity, make its intention know to ensure
compliance with the rigid standard as to time; to
hold otherwise would be to encourage a lack of
candour on the part of the parties in their
dealings before the Arbitrator.  The Arbitrator
was justified in coming to the conclusion that the
petitioners had, by their conduct, waived their
objection to enforce a punctilious observance of
the time schedule of four months.  It is held that
to adopt any other construction would frustrate
the object and the purpose of arbitral
proceedings and being the whole machinery
provided by the Act, to facilitate an efficacious
recourse to arbitration, into grave peril.
48)     In Bhupinder Singh Bindra v. Union of India and
another (8 supra) the Apex Court held that the Court
interpose and interdict the appointment of an arbitrator,
when the parties have chosen under the terms of the
contract unless legal misconduct of the arbitrator, fraud,
disqualification etc. is pleaded and proved.  The Court held
that there must be just and sufficient cause for revocation.
In the said case, though there was no allegation of
misconduct, fraud or disqualification but due to non-
cooperation of one of the parties the delay occurred in
making the award.  Under those circumstances, it has been
held that the Court has no jurisdiction to revoke the
appointment of an arbitrator on the ground of latches and
appoint another person as arbitrator without consent of both
the parties to the contract.
49)     In Snehadeep Auto centre v. Hindustan Petroleum
Corporation Limited (10 supra) a Division Bench of Bombay
High Court held that in N.B.C.C.Limited (12 supra)  the
Apex Court did not lay down an absolute proposition that the
moment the award is made, after the stipulated period, it
must be set aside; the observation of the Supreme Court,
that the Arbitrator was bound to make and publish his award
within the time mutually agreed upon by the parties unless
the parties consented to further enlargement of time, did
not rule out a  contingency where the conduct of the parties
could be implied with certainty to mean that they had
consented not to insist on the mandatory time limit.  The
court also held that no unambiguous stand can be taken that
the Arbitrator cannot proceed to declare the award, as his
mandate had come to an end; and this conduct amounted to
waiver of the objection of time limit, being a mandatory
requirement for pronouncement of the award.    In NBCC
Limited (12 supra) the Apex Court recognized the
importance of imposition of a time limit for conclusion of
arbitration proceedings.  It was a case where the arbitrator
could not conclude the proceeding as agreed upon by the
parties.  The Court held that the Arbitrator has extended the
time provided to it without any concrete reasons whatsoever
and thus his mandate was liable to be terminated.  The Apex
Court held that even assuming that the arbitration process
involves highly technical and complex issues, which are time
consuming, it was open for the arbitrator or for the parties
to approach the Court for extension of time to conclude the
arbitration proceedings, which was not done either by the
Arbitrator or by any of the parties.  There was no cogent
reason for the delay in making and publishing the award by
the Arbitrator, as he already had relevant material at his
disposal and could base his finding, on the observation made
by the three arbitrators, who were appointed prior to him.
50)     Ramchandra Rungta v. Ram Swarup Rungta   and 
Jayesh H.Pandya (7 supra), the arbitration proceedings
continued and the parties were regularly appearing before
the respective Arbitrators, by seeking extension of time to
file their pleadings, for adjournment etc. In both the cases
it was held that a clear intention had been evinced by the
parties, waiving their right to insist on the time limit
contained in the respective arbitration agreements for
making and publishing the award.  Hence, the Bombay and
Delhi High Courts, in the facts of those cases, held that
there was waiver of the stipulation in the arbitration
agreement for publication of the award, within the specific
period of time, by the parties.
51)     The learned counsel for the respondents relied upon
the judgment of in Hindustan Wires Limited v. R.Suresh (6
supra) and also N.B.C.C. Limited (12 supra), to contend
that as the time period for conclusion of proceedings had
expired and in the absence of any application seeking
extension of time, the arbitrator ceases to have jurisdiction.
According to him, since the time limit is fixed by the Court,
the period of participation cannot be waived on mere
participation even after the expiry of the period.
52)     The judgment of the Apex Court in NBCC Limited (12
supra) which is relied to show that the time limit fixed can
only be extended after obtaining necessary orders from the
Court which has imposed the time, was a case where the
parties initially agreed to extend the time till 31.10.1994 for
making and publishing the  award and the same was further
extended till 30.09.2005, but the arbitrator failed to pass an
award by 30.09.2005.
53)     Situation here is some what different.  Here the
proceedings have commenced and no reply to the claim-
petition was filed till 16.05.2015 and the stay was in
operation during the period from 25.03.2015 to 30.04.2015
and again from 04.05.2015 till 16.03.2016 and most
importantly the respondents herein, who are raising the
objection of time limit now, participated in the proceedings
even after the expiry of time limit and also took the plea
before the Apex Court that the time limit as fixed by the
High Court is not sufficient to complete the proceedings.
Further, written statement came to be filed on 16.05.2015
after their right to file which was earlier forfeited and then
restored.  Such being the position, the plea now taken by
the very same party to terminate the mandate of the
Arbitrator on the ground of delay, cannot be accepted and
the judgment of the Apex Court in NBCC Limited (12 supra),
in our view may not apply to the case on hand.
54)     From this, it is clear that the respondents herein were
not co-operating with the arbitrator in filing the written
statement to the claim-petition and only after they were
unsuccessful before the Apex Court, a written statement
came to be filed and thereafter again initiated proceedings
before the Civil Court and then in  High Court, where there
was a stay till 16.03.2016.
55)     Further, the time limit for completing the arbitration
proceedings was not fixed at the time when the arbitrator
was appointed by the Court at the earliest point of time.
The time limit came to be fixed, in a review application
filed by the respondents herein questioning the appointment
of an Arbitrator.
56)     Therefore, the Arbitrator cannot be found fault with
for the delay in arbitration proceedings more so when the
record clearly shows that the respondents waived their right
in not raising any objection with regard to continuation of
the proceedings or seeking termination of the mandate of
the Arbitrator on the ground that the time prescribed for
making the award expired.  In fact the docket entries before
the Arbitrator dated 07.02.2014 and 16.02.2014 show that
he was pleading the parties more particularly the Delhi
parties (respondents herein) to cooperate with the
arbitration so as to complete the proceedings within the
specified time to the maximum possible extent.  Hence, the
ground on which the mandate of the arbitrator came to be
terminated, in our view, cannot be accepted.
57)     One other ground which is sought to be raised by the
learned counsel for the respondents is as to whether the
arbitration and conciliation amendment Act, 2015 will apply
to the case on hand.
58)     The learned counsel took us through Section 26 of the
amended Act, 2015 to show that only the Act as it stands
after 2015 shall apply to the present case. Learned counsel
for the respondents placed reliance on the judgment of BCCI
vs. Kochi Cricket Pvt. Ltd. (14 supra)  and also the
judgment of Calcutta High Court  in Tufan Chatterjee v.
Rangan Dhar   and the judgment of Delhi High Court in
Raffles Design International India Private Limited and
others v. Educomp Professional Education Limited and
others  in support of his plea.       
59)     Before dealing with the contention of the learned
counsel for the respondents, it would be appropriate to
refer to Section 26 of the Amended Act, which is as under:
26. Act not to apply to pending arbitral
proceedings:  Nothing contained in this Act shall
apply to the arbitral proceedings commenced, in
accordance with the provisions of Section 21 of
the Principal Act, before the commencement of
this Act unless the parties otherwise agree but
this Act shall apply in relation to arbitral
proceedings commenced on or after the date of
commencement of this Act.
60)     Section 26 of the Amendment Act postulates that
nothing contained in the said amendment Act is to apply to
the arbitral proceedings commenced in accordance with the
provisions of Section 21 of the Principal Act, unless the
parties otherwise agree.  But the Amendment Act would
apply in relation to arbitral proceedings commenced, on or
after the date of commencement of the amended Act.
61)     According to him, the above provision has to be read in
two parts.  The first part being, nothing contained in this
Act shall apply to the arbitral proceedings commenced in
accordance with the provisions of Section 21 of the Principal
Act, before the commencement of the amendment Act,   
unless the parties otherwise agree and the second part
which is in continuation of the first part is to be read as
that this Act would apply in relation to arbitral proceedings
commenced on or after the date of commencement of 2015   
Act.  According to him, the word to appearing in the first
part of the provision is not there in second part, which reads
instead as in relation to, which thereby signifies that both
the parts have a corresponding different interpretation to
the above provision.  According to him, the first part refers
to arbitral proceedings before the Tribunal and the second
part in relation to arbitral proceedings.  In view of the
judgment of the Apex Court in BCCI (14 supra), it is urged
that the amendment Act, 2015 will not apply to the arbitral
proceedings that have commenced before the date of
coming into effect of the amendment Act and it will apply to
the Court proceedings which have commenced on or after
the amendment Act came into force.
62)     In other words, his plea is that the amendment Act
which came into force with effect from 23.10.2015, would
apply to the arbitral proceedings which commenced after
23.10.2015 but not to arbitral proceedings which
commenced before 23.10.2015.  Having regard to the above,
it is urged that in view of Section 12 (5) read with 7
Schedule of the amended Act, the Arbitrator is de jure
disqualified.
63)     A plain reading of Section 26 of the Amendment Act,
would indicate that nothing contained in the amended Act
shall apply to arbitral proceedings commenced, in
accordance with provisions of Section 21 of the Principal
Act, before commencement of this Act, unless parties
otherwise agree, but this Act shall apply in relation to
arbitral proceedings on or after the date of commencement
of the amended act.
64)     Though the learned counsel for the respondents relied
upon the judgments of Calcutta High Court and Delhi High
Court namely Tufan Chatterjee (18 supra)  and Raffles
Design International India Private Limited and others (19
supra),  but in view of the judgment of the Apex Court in
BCCI v. Kochi Cricket Private Limited (14 supra), it may not
be necessary to refer to the said judgments.
65)     The judgment of the Apex Court in BCCI v. Kochi  (14
supra)  was a case where a notice dated 18.01.2012 was
sent by Kochi Cricket Pvt. Limited, invoking the arbitration
under a franchise agreement dated 12.03.2011.  A sole
arbitrator was appointed, who delivered two arbitral awards
dated 22.06.2015 against the appellant and in favour of the
respondents.  On 16.09.2015, the appellants filed an
application under Section 34 of Arbitration Act, 1996 in the
Bombay High Court challenging the aforesaid arbitral
awards.  On 26.11.2015, the respondents filed two execution
applications in the High Court, for payment of the amounts
awarded under the two awards, pending enforcement of
such awards.  These were resisted by two Chamber summons 
filed by the appellants dated 3.12.2015, seeking dismissal of
the aforesaid execution applications on the ground that the
old Section 36 would be applicable and that, therefore there
would be an automatic stay of the awards until Section 34
proceedings are decided.  Having regard to the above, the
question before the Court was as to the construction of
Section 26 of the Amendment Act, 2015.  In other words, the
Apex Court was dealing with the effect of an application
under Section 34 of the Arbitration 1996 Act after the
amendment Act came into force.   Further, the question
with which the Bench was confronted was whether Section
36, which was substituted by the Amendment Act, would
apply in its amended form or in its original form to the
appeals in question.  After referring to the authorities on
the subject and interpreting the provisions under Old and
New Act, the Apex Court dismissed the appeals.
66)     Dealing with the provisions of the Old Act and the
Amendment Act, 2015, the Honble Court in Para Nos.24 and
25 came to the following conclusions, which are as under:
 24. What will be noticed, so far as the first part is
concerned, which states, Nothing contained in this
Act shall apply to the arbitral proceedings
commenced, in accordance with the provisions of
Section 21 of the Principal Act, before the
commencement of this Act unless the parties
otherwise agree.. is that: (1) the arbitral
proceedings and their commencement is mentioned in
the context of Section 21 of the Principal Act; (2) the
expression used is to and not in relation to; and
(3) parties may otherwise agree.  So far as the second
part of Section 26 is concerned, namely, the part
which reads  but this Act shall apply in relation to
arbitral proceedings commenced on or after the date
of commencement of this Act makes it clear that the
expression in relation to is used; and the expression
the arbitral proceedings and  in accordance with
the provisions of Section 21 of the Principal Act is
conspicuous by its absence.
25.  That the expression the arbitral proceedings
refers to proceedings before an arbitral tribunal is
clear from the heading of Chapter V of the 1996 Act,
which reads as follows:
Conduct of Arbitral Proceedings     
The entire chapter consists of Sections 18 to 27 dealing
with the conduct of arbitral proceedings before an
arbitral tribunal.  What is also important to notice is
that these proceedings alone are referred to, the
expression to as contrasted with the expression in
relation to making this clear.  Also, the reference to
Section 21 of the 1996 Act, which appears in Chapter
V, and which speaks of the arbitral proceedings
commencing on the date on which a request for a
dispute to be referred to arbitration is received by the
respondent, would also make it clear that it is these
proceedings, and no others, that form the subject
matter of the first part of Section 26.  Also, since the
conduct of arbitral proceedings is largely procedural in
nature, parties may otherwise agree and apply the
Amendment Act to arbitral proceedings that have
commenced before the Amendment Act came into   
force.  In stark contrast to the first part of Section 26
is the second part, where the Amendment Act is made
applicable in relation to arbitral proceedings which
commenced on or after the date of commencement of 
the Amendment Act.  What is conspicuous by its
absence in the second part is any reference to Section
21 of the 1996 Act.  Whereas the first part refers only
to arbitral proceedings before an arbitral tribunal, the
second part refers to Court proceedings in relation
to arbitral proceedings, and it is the commencement
of these Court proceedings that is referred to in the
second part of Section 26, as the words in relation to
the arbitral proceedings in the second part are not
controlled by the application of Section 21 of the 1996
Act.
Section 26,  therefore, bifurcates proceedings, as has
been stated above, with a great degree of clarity, into
two sets of proceedings  arbitral proceedings
themselves, and Court proceedings in relation thereto.
The reason why the first part of Section 26 is couched
in negative form is only to state that the amendment
Act will apply even to arbitral proceedings commenced
before the amendment if parties otherwise agree.  If
the first part of Section 26 were couched in positive
language (like the second part), it would have been
necessary to add a proviso stating that the Amendment
Act would apply even to arbitral proceedings
commenced before the amendment if the parties
agree.  In either case, the intention of the legislature
remains the same, the negative form conveying exactly
what could have been stated positively, with the
necessary proviso.  Obviously, arbitral proceedings
having been subsumed in the first part cannot
reappear in the second part, and the expression in
relation to arbitral proceedings would, therefore,
apply only to Court proceedings which relate to the
arbitral proceedings.  The scheme of Section 26 is thus
clear: that the Amendment Act is prospective in
nature, and will apply to those arbitral proceedings
that are commenced, as understood by Section 21 of
the Principal Act, on or after the Amendment Act, and
to Court proceedings which have commenced on or
after the Amendment Act came into force.
67)     From the judgment of the Apex Court, it is clear that
the first part deals with reference to arbitral proceedings
before the Arbitrary Tribunal and the Amendment Act would
apply even to Arbitral proceedings commenced before the
amendment, if the parties otherwise agree.  In the instant
case, we do not find any such consent being given by any of
the parties warranting applicability of the amended Act,
since the arbitration proceedings came to be initiated prior
to the amendment.   Further Section 29-A of the Amendment  
Act, prescribes time limit for completion of arbitral
proceedings.  Therefore the parties may opt to deal under
the New Act even in cases which are pending before the
Arbitrator as on the date of commencement of the
Amendment Act.  On such option being exercised, the  
parties are bound under the provisions of New Act.
68)     As observed by us earlier, in the instant case, we do
not find any such consent being given by the parties seeking
applicability of the Amendment Act, 2015.   Therefore, the
argument of the learned counsel for the respondents that
the arbitrator is de jure disqualified in view of Section 12 (5)
of the Act cannot be accepted.
69)     For the aforesaid reasons, the Civil Revision Petition is
allowed holding that the order under challenge terminating
the mandate of the arbitrator is illegal and incorrect, and
accordingly, the same is set aside.
70)     There shall be no order as to costs.  Miscellaneous
Petitions, if any, pending, shall stand closed.
                                                     
____________________ 
C.PRAVEEN KUMAR, J   
____________
T. RAJANI, J
07.09.2018