35. On 05.11.2015, the arbitrator once again granted time to GEL to file the statement of claims before 31.01.2016. This was the sixth opportunity granted to GEL to file its statement of claims. True to its practice, GEL sent a letter on 30.01.2016 i.e. one day prior to the expiry of the time period requesting that further six weeks time be granted to it to file the Statement of Claims. It is relevant to note that even thereafter GEL did not file the Statement of Claim within the period of six weeks. Finally, the arbitrator passed an order dated 28.04.2016 under Section 23 and 25 of the Act terminating the proceedings in so far as GEL is concerned and directed GEL to file response to the counter claims within a period of 30 days from that date.
36. It is clear from the above that GEL's conduct has been less than fair. Mr. Rakesh Samuel - the arbitrator initially appointed by NTECL - had entered appearance on 07.03.2014 and even after two years, GEL had failed and neglected to file its statement of claims. As narrated above, Mr. N. Sasikumar gave several opportunities to GEL to file the Statement of Claims, but, GEL failed and neglected to do so. In the circumstances, this Court finds no infirmity with the order dated 28.04.2016 passed by the arbitrator. The arbitrator had granted enough indulgence to GEL and, in the view of this Court, much beyond what was warranted.
The right to file a claim by a claimant or a right to file a counter claim by the respondent in an arbitration proceedings is not an absolute right. In case either the claimant or respondent are unduly delaying the proceedings, the arbitrator has the powers under S.23&25 of the said Act, to close the right and proceed further with the arbitration proceedings. That means, if the claimant after taking many adjournments, it is not filing the claim, the arbitrator may close the right of the claimant to file his claim and allow the respondent to file the counter claim.
In the High Court of Delhi at New Delhi
(Before Vibhu Bakhru, J.)
Gangotri Enterprises Limited
v.
NTPC Tamil Nadu Energy Company Limited .….
O.M.P. (T) (COMM.) 47/2016
Decided on January 16, 2017
Citation: 2017 SCC OnLine Del 6560
The Judgment of the Court was delivered by
Vibhu Bakhru, J.:— Gangotri Enterprises Limited (hereafter ‘GEL’) has filed the present petition under Section 14 (2) of the Arbitration and Conciliation Act, 1996 (hereafter ‘the Act’), inter alia, praying that an appropriate order terminating the mandate of Mr. N. Sasikumar as the sole arbitrator be passed and further, an independent arbitrator be appointed to adjudicate the disputes between GEL and the respondent (hereafter ‘NTECL’). Mr. N. Sasikumar was appointed the sole arbitrator to adjudicate the disputes that had arisen between the parties in relation to an agreement dated 11.02.2010 (hereafter ‘the Agreement’).
2. According to GEL, there are justifiable doubts as to independence and impartiality of the arbitrator and therefore, the mandate of Mr. N. Sasikumar as a sole arbitrator stands ipso jure terminated. Further that the order dated 28.04.2016 passed by the arbitrator closing the right of GEL to file the statement of claim and terminating the proceedings is perverse and mala fide. It is, accordingly, asserted that proceedings qua GEL's dispute have been terminated unreasonably and unlawfully and, therefore, the arbitrator's mandate stands terminated under Section 14(2) of the Act.
3. In view of the above, the following questions arise for consideration in this petition:
(i) Whether the decision of the arbitrator rejecting the challenge under Section 12 of the Act can be assailed under Section 14 of the Act?
(ii) Whether the order dated 28.04.2016 closing the right of GEL to file its claims and thereby terminating the proceedings qua such claims is amenable to challenge under section 14 of the Act, where the arbitral proceedings are not closed but continue in relation to counterclaims of NTECL?
(ii) If so, whether in the facts of the circumstances, the order dated 28.04.2016 is perverse, mala fide and unsustainable?
Factual Background
4. NTECL is a joint venture company of NTPC Limited and Tamil Nadu Electricity Board (hereafter ‘TNEB’). NTECL issued a notice inviting tender for Ash Dyke Package (Location-I) for its Vallur Thermal Power Project(2 × 500 MW + 1 × 500 MW) located between Ennore Creek and Kuruvimedu village of Ponneri taluk of Thiruvallur District, State of Tamil Nadu (hereafter ‘the Project’). GEL bid for the aforesaid works. GEL's bid was accepted and NTECL issued a Letter of Award (hereafter ‘the LOA’) dated 11.02.2010 awarding the works relating to the execution of the Project to GEL for a total consideration of Rs. 1,93,29,84,000/-. The formal contract - the Agreement - was executed between GEL and NTECL on 11.02.2010.
5. Certain disputes have arisen between the parties in relation to the Agreement. NTECL has encashed the bank guarantees furnished by GEL and also terminated the Agreement. For the purposes of this petition, it is not necessary to delineate the extent of the disputes between the parties. Suffice it to state that in view of the disputes, GEL issued a letter dated 18.01.2014, inter alia, raising claims to the extent of Rs. 165.27 crores. NTECL denied the allegations made by GEL in the letter dated 18.01.2014 and appointed Mr. Rakesh Samuel, GM (Vallur), Project-in-Charge of Vallur Thermal Power Project as the sole arbitrator in accordance with Clause 56 of the General Conditions of the Contract (GCC). GEL objected to the said appointment by its letter dated 22.02.2014 and requested that an independent arbitrator be appointed.
6. Mr. Samuel, the sole arbitrator, entered upon the reference and by his letter dated 07.03.2014, scheduled a hearing on 05.04.2014. GEL objected to the said hearing by its letter dated 05.04.2014 and alleged partiality and bias against the sole arbitrator. GEL did not attend the arbitral hearing scheduled on 05.04.2014. Accordingly, the arbitrator fixed the next hearing on 05.05.2014 at NTECL's corporate office in Chennai. This was communicated to GEL by a letter dated 12.04.2014. GEL immediately responded calling upon the arbitrator not to proceed with the arbitration in view of their challenge to the arbitrator under Section 12 of the Act.
7. The sole arbitrator considered the objections raised by GEL and rejected the same by a procedural order dated 16.04.2014 by referring to the express terms of the arbitration clause and also the decision of the Supreme Court in Indian Oil Corporation Limited v. Raja Transport Private Limited: (2009) 8 SCC 520. In the meanwhile, GEL approached this Court challenging the authority of Mr. Rakesh Samuel to continue as an arbitrator (OMP 496/2014 titled Gangotri Enterprises Ltd. v.NTPC Tamil Nadu Company Ltd.). This petition was withdrawn by GEL on 12.05.2014 with liberty to take such steps as permissible in law.
8. Thereafter, GEL approached the Chairman of NTECL for appointment of an independent arbitrator and once again approached this Court under Section 11 (6) of the Act for appointment of an arbitrator (ARB. P. 365/2014 titled Gangotri Enterprises Ltd v. NTPC Tamil Nadu Company Ltd.). In the meanwhile, Mr. Rakesh Samuel resigned as the sole arbitrator. NTECL appointed Mr. N. Sasikumar as the sole arbitrator in place of Mr. Rakesh Samuel. He entered the reference by his letter dated 20.01.2015 and fixed the arbitral proceedings on 17.02.2015. Admittedly, GEL did not attend the said hearing and the proceedings were adjourned to 17.03.2015.
9. On 09.03.2015, this Court disposed of GEL's petition - ARB. P. 365/2014. This Court did not interfere with the appointment of Mr. N. Sasikumar, however, directed - at the instance of GEL and with the consent of NTECL - that the arbitral proceedings would be held at a neutral venue.
10. GEL also filed its objections under Section 12 of the Act regarding impartiality and independence of the arbitrator before the arbitrator. GEL called upon the arbitrator to make a disclosure as required under Section 12 of the Act by its letter dated 11.07.2015.
11. In response, the arbitrator responded to the aforesaid letter by a communication dated 14.07.2015 informing GEL that he was working at the post of Executive Director (Projects), TNEB and had superannuated from that post on 29.02.2008. He was, thereafter, associated with TNEB from 2011 to 2015 as an officer on special duty/Projects in monitoring TNEB Projects. He further clarified that he had also relinquished the said post on 17.04.2015. He also unequivocally stated that neither he nor his family members had any direct interest in the arbitral dispute or the PSUs in question.
12. GEL, thereafter, sought time to file its statement of claims but admittedly failed to do so. GEL's request for extending the time to file the statement of claims was accepted and the arbitrator extended time to file statement of claims on more than five occasions. However, since GEL failed to do so, the arbitrator passed the Interim Arbitral Order dated 28.04.2016 under Section 23 and 25 of the Act, in effect closing the right of GEL to file the statement of claims. The arbitrator, further directed GEL to file its response to the counter claims filed by NTECL.
Submissions
13. The learned counsel appearing for GEL submitted that there were justifiable grounds to doubt the independence and impartiality of Mr. N. Sasikumar and, therefore, his mandate stood ipso jure terminated with effect from 11.07.2015, when GEL raised objections regarding his lack of impartiality and independence and further on 14.07.2015, when such objections were dismissed.
14. He further submitted that the order dated 28.04.2016 passed by the arbitrator under Section 23 and 25 of the Act was also bad in law and clearly demonstrated the arbitrator's bias. He earnestly contended that the order was patently erroneous and thus was amenable to challenge under Section 14 of the Act. He referred to the decision of the Supreme Court in LalitkumarV. Sanghavi (D) Th. L.Rs. Neeta Lalit Kumar Sanghavi v. Dharamdas V. Sanghvi: (2014) 7 SCC 255. On the strength of the said decision, he contended that GEL could challenge the order closing its right to file a statement of claim because in so far as GEL is concerned, the same had the effect of terminating the proceedings.
15. Mr. Bharat Sangal, the learned counsel appearing for NTECL submitted that the question of examining a controversy as to whether the arbitrator is de jure or de facto unable to act, would arise only in cases where the proceedings are finally closed and not in cases where the arbitrator is still continuing to adjudicate some of the disputes. He submitted that the decision in the case of Lalit Kumar v. Sanghavi(supra) would be applicable only in cases where the mandate of the arbitrator is terminated on account of final order terminating the proceedings in entirety.
Reasons and Conclusion
16. The scheme of the Act is clear and no interference with the arbitral proceedings is permissible except as specified under the Act. Section 13 of the Act provides the procedure for challenging an arbitrator. In terms of Section 13 (3) of the Act, unless an arbitrator withdraws from his office or the other party agrees to the challenge, the arbitrator is required to decide the same. In the present case, the arbitrator has rejected the challenge laid by GEL under Section 12 of the Act. Thus, in terms of Section 13 (4) of the Act, the arbitrator is required to continue with the arbitral proceedings and make an award.
17. In terms of Section 13(5) of the Act, a party challenging the arbitrator is at liberty to make an application for setting aside the arbitral award, which may be rendered after the arbitral tribunal rejects the challenge. It is clear from the said scheme that the stage of challenging the impartiality or independence of the arbitrator is in the first instance before the arbitrator and if the said challenge is not successful then under Section 34 of the Act after the award has been made and published. Given the specific provisions of Section 13, recourse to Section 14 of the Act is not available to challenge the decision of the arbitrator rejecting the challenge under Section 12 of the Act and to continue with the arbitral proceedings. This is also the view expressed by a Division Bench of this Court in Progressive Career Academy Pvt. Ltd. v. FIITJEE Ltd: 180 (2011) DLT 714.
18. In view of the above, the first question, whether the decision of the arbitrator rejecting the challenge under Section 12 of the Act can be assailed under Section 14 of the Act, is answered in the negative.
19. Before proceeding further to address the second question, it is essential to refer to Section 14, 25 and 32 of the Act; which are set out below:
“14. Failure or impossibility to act.— (1) The mandate of an arbitrator shall terminate and he shall be substituted by another arbitrator, if —
(a) he becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and
(b) he withdraws from his office or the parties agree to the termination of his mandate.
(2) If a controversy remains concerning any of the grounds referred to in clause (a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate.
(3) If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or sub-section (3) of section 12.
*** *** ***
25. Default of a party.—Unless otherwise agreed by the parties, where, without showing sufficient cause,—
(a) the claimant fails to communicate his statement of claim in accordance with sub-section (1) of section 23, the arbitral tribunal shall terminate the proceedings;
(b) the respondent fails to communicate his statement of defence in accordance with sub-section (1) of section 23, the arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the allegations by the claimant; [and shall have the discretion to treat the right of the respondent to file such statement of defence as having been forfeited];
(c) a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the arbitral award on the evidence before it.
*** *** ***
32. Termination of proceedings.— (1) The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2).
(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where—
(a) the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute,
(b) the parties agree on the termination of the proceedings, or
(c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.
(3) Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings.”
20. By virtue of Section 14(2) of the Act, a party can apply to the Court to decide a controversy relating to termination of mandate of an arbitrator under any of the grounds as referred to under clause (a) of Sub-section (1) of Section 14 of the Act. The said grounds being, (i) that the arbitrator is de jure or de facto unable to act as an arbitrator and (ii) that he fails to act without undue delay.
21. In the present case, there is no allegation that the arbitrator has failed to act without undue delay. Thus, the only ground that remains is whether the arbitrator isde facto or de jure unable to act as an arbitrator. As stated above, the question whether the arbitrator is unable to act by virtue of the disqualifications or on account of there being justifiable doubts as to his impartiality and independence, are by implication - by specific provisions of Section 13 of the Act - excluded from the purview of Section 14(2) of the Act, as the same are deferred to the stage after rendering of the award.
22. The learned counsel for GEL has sought to place GEL's case under Section 14(2) of the Act on the basis that the arbitrator has terminated the proceedings and therefore, by virtue of Section 32(3) of the Act, the mandate of the arbitrator also stands terminated; consequently, falling within the scope of Section 14(2) of the Act.
23. It is necessary to observe that by the order dated 28.04.2016, the arbitrator has not terminated the arbitral proceedings in its entirety; he has terminated the proceedings qua the claims of GEL by closing GEL's right to file its claims. The arbitrator has therefore captioned the order as “Interim Arbitral Order passed under Sec 23 & 25 of the Arbitration and Conciliation Act 1996/2015 (Amendments)”. By the said order, he also directed GEL to file a response to the counter-claims of NTECL and further clarified that “the final award will be pronounced after the adjudication of the counter claims”.
24. Having stated the above, Mr. Sangal's the contention that the arbitrator's mandate has not terminated by the impugned order dated 28.04.2016 as the arbitral proceedings have not terminated, is erroneous. Clearly, the arbitral proceedings quathe disputes raised by GEL were terminated on account of its failure to file the statement of claims within the time as specified. Undisputedly, the effect of the order of 28.04.2016 is that arbitrator's mandate for deciding the claims intended to be raised by GEL stands terminated and he is de jure or de facto unable to act as an arbitrator qua such claims even though his mandate to continue the proceedings and adjudicate the counter claims has not come to an end.
25. In Lalitkumar V. Sanghavi (supra), the Supreme Court had, while holding that a petition under Section 11 of the Act would not be maintainable in cases where the arbitrator had terminated the arbitral proceedings, observed that the petitioner had recourse under Section 14 of the Act and had not been rendered remediless. In that case, the arbitral tribunal had terminated the proceedings, inter alia, on account of non payment of fees by the respondent therein. And, unlike in the present case, the arbitral proceedings were finally closed. This led the petitioner therein to file an application under Section 11 for appointment of another arbitrator, which was dismissed as not maintainable. The Supreme Court also held that in view of its earlier decision in SBP and Company v. Patel Engineering Limited: (2005) 8 SCC 618, a writ petition under Article 226 or 227 of the Constitution of India against an order of an arbitral tribunal was not maintainable. In that context, the Court examined the provisions of Section 32 of the Act and held that by virtue of Section 32 (3) of the Act, the termination of the proceedings also terminate the mandate of the arbitral tribunal and the question relating to the termination of the mandate can be agitated before a court by virtue of Section 14 (2) of the Act. The said section expressly mandates that if any controversy remains with regard to or concerning any grounds referred to in Section 14 (1) (a) of the Act, “a party may, unless otherwise agreed by the parties, apply to the Court to decide on the termination of the mandate”. The Supreme Court concluded that “having regard to the scheme of the Act and more particularly on a cumulative reading of Section 32 and Section 14, the question whether the mandate of the arbitrator stood legally terminated or not can be examined by the court as provided under Section 14(2)”. It is thus clear that the question of examining whether the mandate of the arbitrator stands terminated under Section 14 (2) would arise where the arbitral tribunal had terminated the proceedings.
26. The decision in the case of Lalitkumar V. Sanghavi (supra) also turned on the principle that the petitioner could not be rendered remediless on account of the arbitrator terminating the proceedings. In that case no recourse would be available to the petitioner under Section 34 of the Act and thus the question would have to be considered within the scope of Section 14 of the Act. Thus, this decision applies only in cases where the arbitral proceedings are terminated by the arbitrator other than by making an award, that is, under Section 32(2) of the Act; it is clearly not applicable where the arbitral proceedings are terminated by virtue of Section 32(1) of the Act, that is, by making of an award.
27. Thus, the second question, whether the order dated 28.04.2016 closing the right of GEL to file its statement of claims and thereby terminating the proceedings qua such claims, is amenable to challenge under Section 14 of the Act, is answered in the affirmative. In cases where the arbitrator's mandate is terminated, a re-course to Section 14(2) of the Act would be available provided a specific remedy is not provided under the Act. In the present case, the arbitrator's mandate to adjudicate any claims of GEL under the Agreement, stands terminated. Concededly, the order dated 28.04.2016 as also the final award that may be passed, in as much as it would not include GEL's claim, would not be amenable to challenge under Section 34 of the Act.
28. The next issue to be examined is whether the order dated 28.04.2016 is unreasonable, mala fide and indicates bias on the part of the arbitrator.
29. In terms of clause 56 of GCC, the General Manager was to act as an arbitrator, failing which the Chairman and Managing Director would appoint an arbitrator. The parties had agreed that no objection would be taken on the ground that the arbitrator was an employee and had during the course of his duties, expressed opinion on the subject matter of the dispute. GEL invoked the arbitration clause by its letter dated 18.01.2014 and in compliance, Mr. Rakesh Samuel, GM was appointed as the arbitrator, in terms of Clause 56 of GCC and the same was communicated to GEL by a letter dated 10.02.2014. As noted hereinbefore, Mr. Rakesh Samuel issued a notice dated 07.03.2014 scheduling a hearing on 05.04.2014. GEL did not enter appearance before Mr. Rakesh Samuel despite notice of the hearing and on the date of the hearing, sent a letter objecting to his appointment inter alia on the ground that he was part of the management of NTECL, which had rejected the claims raised by GEL.
30. The arbitrator (Mr. Rakesh Samuel) rejected GEL's challenge by an order dated 16.04.2014. Although the provisions of Section 13(5) of the Act are clear and GEL was required to await the making of the award to further pursue its challenge on the grounds under Section 12 of the Act, it chose to file a petition in this Court (OMP 496/2014), which was subsequently withdrawn. Although, there was no impediment to filing the Statement of Claims, GEL neither appeared before the arbitrator nor filed its claims.
31. GEL, now filed a petition under Section 11 of the Act for appointment of an arbitrator. In the meanwhile, Mr. Rakesh Samuel resigned as an arbitrator and Mr. N. Sasikumar was appointed as an arbitrator in his place by a letter dated 11.12.2014. At the material time, GEL's petition under Section 11 of the Act (ARB. P. 365/2014) was pending. The arbitrator issued a notice dated 20.01.2015 calling upon the parties to appear before him fixing the next date as 17.02.2015. GEL did not appear before the arbitrator on account of the pendency of the petition under Section 11 of the Act. According to GEL, the appointment of Mr. N. Sasikumar was bad inter alia for the reason that NTECL could not exercise its powers under clause 56 of the GCC. The aforesaid contention was repelled by this Court by an order dated 09.03.2015 (in ARB. P. 365/2014) and the said petition was dismissed. This Court also recorded itsprima facie view that the arbitrator appointed was an independent person; however, the court also clarified that the order would not preclude GEL from challenging the arbitrator in accordance with law and if any such application is filed, the same would be considered by the arbitrator on merits.
32. After GEL's petition was disposed of on 09.03.2015, the arbitrator issued another notice on 24.03.2015 calling both the parties to attend the arbitration proceedings at a neutral venue. The arbitrator directed GEL to file its statement of claims with supporting documents on or before 10.04.2015; this was the first opportunity - after disposal of the Section 11 petition - granted to GEL to file its statement of claims. Although, NTECL appeared before the arbitrator on 10.04.2015, GEL neither appeared before the arbitrator nor filed a statement of claim. Accordingly, the arbitrator rescheduled the hearing on 13.05.2015. The arbitrator issued a fresh notice dated 16.04.2015 for scheduling the hearing on 13.05.2015; this was the second opportunity granted to the GEL to file its claims. However, none appeared on behalf of GEL on 13.05.2015 as well. Thus, it is clear that despite sufficient opportunity, GEL neither filed its statement of claims nor joined the arbitral proceedings. Nonetheless, on 13.05.2015, the arbitrator granted one more opportunity to GEL to submit the statement of claims together with documents on or before 15.07.2015; this was the third opportunity granted by the arbitrator to GEL to comply and file its statement of claims. GEL did not avail of this opportunity also.
33. A few days prior to the hearing scheduled on 15.07.2015, GEL filed a letter dated 11.07.2015. In the said letter, GEL stated that it had recently become aware that the arbitrator was an employee of TNEB and that gave rise to justifiable doubts as to his independence and impartiality. GEL further sought six weeks time to engage a counsel to appear before the arbitrator in Chennai and file the statement of claims. The arbitrator responded to the said letter on 14.07.2015 clearly disclosing that he was never an employee of NTECL but was an employee of TNEB and had superannuated from the post of the Executive Director (Projects) on 29.02.2008. The arbitrator further also disclosed that he was associated from 2011 to 2015 as an officer on special duty/projects with TNEB for monitoring its projects, albeit, without having any administrative powers or responsibilities. Further, he had relinquished the said post on 17.04.2015. He also confirmed that he had no direct or indirect interest in the arbitral dispute or the public sector undertakings. In view of GEL's request, the arbitrator also adjourned the hearing scheduled on 15.07.2015 to 10.09.2015 granting six weeks time, as requested by GEL, to file a statement of its claims. This was the fourth opportunity granted to GEL to file its statement of claims.
34. GEL did not file its statement of claim even during the extended period of six weeks as sought by it and sent an e-mail on 09.09.2015, that is, one day prior to the scheduled hearing to the arbitrator requesting for further six weeks time for filing the statement of claims as it was not in a position to do so due to certain “unforeseen circumstances”. The arbitrator acceded to this request also and as a final opportunity extended the time for GEL to file its statement of claims by another six weeks and scheduled the next hearing on 05.11.2015. This was the fifth opportunity granted to GEL to file its statement of claims. In the proceedings held on 10.09.2015, the arbitrator also noted that no further time would be granted and failure to file the statement of claims would attract the provisions of Section 25 of the Act.
35. On 05.11.2015, the arbitrator once again granted time to GEL to file the statement of claims before 31.01.2016. This was the sixth opportunity granted to GEL to file its statement of claims. True to its practice, GEL sent a letter on 30.01.2016 i.e. one day prior to the expiry of the time period requesting that further six weeks time be granted to it to file the Statement of Claims. It is relevant to note that even thereafter GEL did not file the Statement of Claim within the period of six weeks. Finally, the arbitrator passed an order dated 28.04.2016 under Section 23 and 25 of the Act terminating the proceedings in so far as GEL is concerned and directed GEL to file response to the counter claims within a period of 30 days from that date.
36. It is clear from the above that GEL's conduct has been less than fair. Mr. Rakesh Samuel - the arbitrator initially appointed by NTECL - had entered appearance on 07.03.2014 and even after two years, GEL had failed and neglected to file its statement of claims. As narrated above, Mr. N. Sasikumar gave several opportunities to GEL to file the Statement of Claims, but, GEL failed and neglected to do so. In the circumstances, this Court finds no infirmity with the order dated 28.04.2016 passed by the arbitrator. The arbitrator had granted enough indulgence to GEL and, in the view of this Court, much beyond what was warranted.
37. For the sake of completeness, the Court has also - although not necessary - considered GEL's grievance that there were justifiable grounds to doubt the independence or impartiality of the arbitrator. It is relevant to observe that the arbitrator was appointed prior to 23.10.2015 - prior to the Arbitration and Conciliation (Amendment) Act, 2015 coming into force. Therefore, by virtue of Section 26 of that Act, the amended provisions would be inapplicable to arbitral proceedings commenced prior to 23.10.2015. In this case, the arbitral proceedings commenced in terms of Section 21 of the Act, on 18.01.2014 by GEL invoking the arbitration clause, thus the amendments introduced in Section 12 of the Act, including Section 12(5) read with the seventh schedule of the Act and/or amendments to Section 12(1) read with the fifth schedule, are inapplicable. According to the law as stood prior to 23.10.2015, the parties could - as in this case - agree to appointment of an employee of a party to act as an arbitrator. In this case, Mr. N. Sasikumar was not an employee of NTECL; he was an employee of TNEB. Further, he had superannuated on 29.02.2008. Although he was an officer on special duty/projects with TNEB for monitoring its projects, he did not have any administrative powers or responsibilities. He had also relinquished the said post on 17.04.2015. The arbitrator had unequivocally confirmed that he was never associated with NTECL. GEL has produced no material on record, which can sustain a conclusion that there were circumstances that gave rise to justifiable apprehension as to the impartiality and independence of Mr. N. Sasikumar as an arbitrator. Without any such material and considering the ratio of the decision of the Supreme Court in Indian Oil Corporation Limited v. Raja Transport Private Limited (supra), the contention that the Mr. N. Sasikumar was disqualified to act as arbitrator, has to be rejected.
38. In view of the above the third question, whether in the facts of the circumstances the order dated 28.04.2016 is perverse, mala fide and unsustainable, is answered in the negative.
39. It is also relevant to note that although on the insistence of GEL arbitral hearings were scheduled at a neutral venue, GEL did not appear before the arbitrator even on a single occasion. Further, GEL also failed to pay its share of costs for hiring the neutral venue.
40. Thus, in my view, this is a fit case where the petition is to be dismissed with costs, which are quantified at Rs. 10,000/-. The costs will be paid to the respondent within a period of four weeks.
May I suggest that the Indian practice of 'engaging' a manager or engineer of the superior party, or someone closely associated with the superior party, as arbitrator, is not commonly seen elsewhere?
ReplyDeleteIt is arguably acceptable to engage such a person as quasi-arbitrator, on behalf of the superior party to hear the respective evidence and argument and decide what his - or her - employer should do. Indeed that's a good method of dispute settlement or avoidance.
But conventional arbitration by a disinterested and neutral third party - or panel of three or more ought to be available as an alternative as well. Indian lawyers - and judges - would gain from study of the IBA guidelines on conflicts of interest.