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Judgment
9 paragraphs · 767 words@JUDGMENT-JUDGMENT
The Court: Affidavit-in-opposition and affidavit-in-reply filed in Court today are taken on record.
This is an application by the petitioner for extension of the time limit for filing an award under Section 29-A of the Arbitration and Conciliation Act, 1996. The arbitration commenced in November, 2017 and the respondent took an extension from this Court which was allowed by a learned Single Judge by an order dated 6th August, 2019.
Learned Counsel appearing for the petitioner submits that by the order of the learned Single Judge the mandate of the Tribunal comprising of three arbitrators came to an end in February, 2019. Counsel places a letter of the Tribunal dated 18th May, 2020 which brings on record the fact of termination of the mandate of the Tribunal on 29th February, 2020 by efflux of time. The Tribunal requested the parties, therefore, to take necessary steps in the matter. The present application was filed soon after in June, 2020. Counsel for the petitioner submits that the only stage left in the arbitration is cross-examination of the solitary witness of the respondent after which the parties would have to make their final arguments.
Learned Counsel for the respondent opposes the extension of time primarily on the conduct of the petitioner. According to Counsel, the petitioner has changed its stand several times before the Tribunal and has taken a plea of an order of the Supreme Court dated 20th January, 2020 relating to a moratorium with regard to the parent company of the petitioner. The petitioner in this proceeding is a subsidiary of Unitech Limited. Counsel further places minutes of proceedings held on 9th November, 2019 which fixed a schedule of proceedings of the arbitration and stated that sittings would be held till 8th February, 2020. It is also submitted that the petitioner was to get a clarification from the Supreme Court with regard to the moratorium covering the parent company of the petitioner but failed to do so contrary to its stated position before the Tribunal on 30th January, 2020. The prayer for extension is strongly opposed.
On hearing learned Counsel appearing for the parties, this Court notices two relevant facts. First, the Tribunal put the onus on both the parties to seek a clarification from the Supreme Court by its order dated 30th January, 2020. Hence the respondent was equally responsible for getting the required clarification. Second, the extension granted by this Court by learned Single Judge of this Court on 6th August, 2019 was on the prayer of the respondent. The order, in fact, records that Counsel appearing for the respondent had prayed for an extension of one year on various grounds including the fact that the respondent's witness was yet to be examined and it was not certain whether the respondent would lead more than one witness. Most important, Section 29-A of the Act provides that an extension may be granted by the Court on an application of any of the parties to the arbitration but only for sufficient cause. This is under Section 29-A(5) of the Act. The sufficiency of the cause has already been stated. It may be added that the respondent admittedly has a counter-claim against the petitioner in excess of Rs.400 crores. Therefore, terminating the mandate of the Tribunal at this stage may also result in the respondent being prejudiced.
Under Section 29-A(5) of the Act, the time limit for filing of an award may be extended on such terms and conditions as may be imposed by the Court. On considering the stand of the parties to this proceeding, this Court is of the view that the Tribunal must be requested to conclude the cross-examination of the respondent's witness by 21st September, 2020. It should be mentioned that at the time of dictating the order, Counsel for the respondent prayed for period of two months for completing its part of the witness action on the plea that its witness has been transferred from his present location and the respondent, therefore, would be required to file a fresh affidavit of evidence. The Tribunal is also requested to complete the final arguments of both the parties by 9th October, 2020. This is again at the request of the counsel for the respondent who submits that each of the parties would require at least two weeks for completion of arguments by 21st October, 2020.
It is made clear that no party should take any further extensions in the matter since the arbitration commenced in November, 2017.
AP No.198 of 2020 is disposed of. GA No.896 of 2020 is also disposed of by this order.