Calcutta High Court (Appellete Side)
Pasari Multi Projects Private Limited vs Ahluwalia Contract (India) Limited on 27 March, 2026
2026:CHC-AS:497
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CO 1765 of 2021
Pasari Multi Projects Private Limited
Vs.
Ahluwalia Contract (India) Limited
For the Petitioner : Mr. Surajit Nath Mitra, Sr. Adv.,
Mr. Kumar Gupta,
Mr. Deepak Kumar Jain.
For the Respondent : Mr. Debnath Ghosh, Sr. Adv.,
Ms. Priyanka Prasad,
Mr. Biswaroop Mukherjee,
Ms. R. Goyal.
Judgment reserved on : 10.03.2026
Judgment delivered on : 27.03.2026
Shampa Dutt (Paul), J.:
1. The Civil revision has been preferred challenging an order of the
learned Arbitrator dated 09.09.2021.
2. Vide the impugned order dated 09.09.2021, the learned arbitral
tribunal held:-
“………….This law does not provide any continuation of the
tribunal as there is no provision for extension meaning a
continuation. The distinction between termination of
mandate of arbitrator under section 29A and
termination of mandate under sections 14 & 15 is
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clear. One is a continuation of the tribunal by court on
extension of mandate of the arbitrator (ordinarily of the
same arbitrator) and the other is reconstitution of tribunal
by the parties, following initial procedure of appointment of
arbitrator, on compulsory replacement of the earlier
arbitrator by a new arbitrator. Even in case of
substitution of one arbitrator or all the arbitrators under
section 29A(6), apart from the fact that this substitution of
arbitrator is by court and not by parties, it is continuation of
the tribunal and of the proceeding, as clearly indicated.
It appears that the heading of Section 29A “Time
limit for arbitral Award read with the contents of the section
itself undoubtedly indicates that it was intended by the
Legislature to get the proceeding concluded within twelve
months or within the extended period, if any, under section
29A(3) and mandate of the arbitrator stands terminated on
expiry of the said period subject to any extension of time by
court. The expression ‘extension’ indicates continuation of
the tribunal on extension. In terms of the provisions of the
said section 29A mandate is not terminated finally and
power was given to the Court for continuation by extension
of such period.
In above view of the findings, it appears that
nomination of the new Arbitrator in the present facts
is under sections 14 & 15 and amounts to
reconstitution of the Tribunal entitling it to continue
with the proceeding without there being an extension
of time by the Court under Section 29A (5).
The respondent reserved its rights to raise the
objections as regards impact of death of arbitrator. This
aspect is therefore considered by this tribunal upon hearing
both parties. As regards the objections mentioned in its
application under section 16 of the Act, the same will be
considered at the appropriate time.
The two judgments cited by respondent are on
interpretation of statutes. But in the facts of the case and in
view of the findings herein, said judgments do not require
further consideration.
Therefore, when the new Arbitrator has been
nominated/appointed by consent of parties, the
Tribunal on such appointment can be effective
enjoying fresh period of mandate and there is no
requirement of extension of time under section 29A(4)
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& (5). In fact, as there was replacement of arbitrator
under section 15 of the Act, no extension was
permissible under the law. The proceeding, therefore,
may continue in accordance with law subject to any
decision on the respondent’s application under
section 16 of the Act………..”
3. Being aggrieved with the said order, the present revision has been
preferred.
4. The petitioner has filed written notes wherein it appears that
the argument in the said written notes are clearly on merit.
There is no argument on the point of maintainability. The
opposite party herein has challenged the maintainability of the
revisional application relying upon Section 5, 34 and 37 of the
Arbitration Act.
5. The said provisions relied upon by the opposite party, relate to
minimum judicial intervention, wherever an arbitration
agreement exists.
6. The opposite party in their written notes have also put in notes on
the merit of the case. The petitioners in their written notes have not
argued on the point of maintainability. But this Court holds that the
revisional application is maintainable, as the issue here in does not
relate to an arbitration agreement, but appointment of fresh
arbitration by way of substitution as per Section 14 and 15 of the
Act.
7. Both parties have argued on merit and have submitted written
notes also on merit and as such the case is taken up for final
order.
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8. It is the case of the petitioner is that:-
i. Letter of appointment of arbitrator Hon’ble Justice (Retd.) P.K.
Biswas was served on 29th October, 2017.
ii. The period of 12 months as per Section 29A of the
Arbitration and Conciliation Act expired on 28th October,
2018.
iii. Application under Section 16 of the Arbitration and
Conciliation Act filed by the petitioner herein, on the ground
that there was no arbitration agreement between the parties,
was rejected by the learned Arbitrator Hon’ble Justice P.K.
Biswas (Retd.) on 16.11.2018.
9. It is further stated by the petitioner that almost five months after
28th October, 2018, the opposite party filed an application under
Section 29A(4) of the 1996 Act for extension the tenure of
arbitration and/or time to make an award by a further period of one
year. At paragraph 4 of the application, the opposite party averred
that it had apprised the Arbitrator that “the tribunal had become
functus officio” and “the mandate of the arbitral tribunal stood
terminated.”
10. During pendency of this application the learned Arbitrator
Justice (Retd.) P.K. Biswas, expired on 27.04.2020.
11. On 10.10.2020, the petitioner consented to the appointment of the
Hon’ble Justice Aloke Kumar Chakraborty as the Arbitrator, but
however, the “consent was subject to the result of the (i.e., the
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opposite party) pending application being Misc. Case No. 14 of
2019″ (for extension of the period of arbitration).
12. On February 23, 2022, the application before the learned District
Judge under Section 29A of the Act, was withdrawn, by the opposite
party with leave to file afresh before the learned commercial Court
at Alipore for extension, by Court under Section 291(4) of the Act.
13. On 09.09.2021, Hon’ble Justice Aloke Chakrabarty (Retd.) held
that his appointment is a new appointment under Section 15 of
the 1996 Act and hence there is no question of extension under
Section 29A of the 1996 Act.
14. The petitioner argues that from the letter dated October 10, 2020, it
will be apparent that the consent of the petitioner was a
conditional consent as it categorically stated that the consent
“was subject to the result of the (i.e. the opposite party)
pending application, being Misc. Case No. 14 of 2019, pending
before the Hon’ble District Judge”.
15. The opposite party states that the termination in this case took
place as per Section 14 of the Act (death of learned Arbitrator),
while an application under Section 29A of the Act was pending. In
such circumstances, Section 15 of the Act comes into play, and the
application under Section 29A becomes infructuous.
16. Section 15 Arbitration and Conciliation Act lays down:-
“15. Termination of mandate and substitution of
arbitrator.-
(1) In addition to the circumstances referred to in section 13
or section 14, the mandate of an arbitrator shall terminate-
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(a) where he withdraws from office for any reason; or
(b) by or pursuant to agreement of the parties.
(2) Where the mandate of an arbitrator terminates, a
substitute arbitrator shall be appointed according to
the rules that were applicable to the appointment of
the arbitrator being replaced.
(3) Unless otherwise agreed by the parties, where an
arbitrator is replaced under sub-section (2), any hearings
previously held may be repeated at the discretion of the
arbitral tribunal.
(4) Unless otherwise agreed by the parties, an order or
ruling of the arbitral tribunal made prior to the replacement
of an arbitrator under this section shall not be invalid solely
because there has been a change in the composition of the
arbitral tribunal.”
17. Section 29A(4) Arbitration & Conciliation Act, lays down:-
“Section 29A(4) If the award is not made within the period
specified in sub-section (1) or the extended period specified
under sub-section (3), the mandate of the arbitrator(s) shall
terminate unless the Court has, either prior to or after the
expiry of the period so specified, extended the period:
Provided that while extending the period under this
sub-section, if the Court finds that the proceedings have
been delayed for the reasons attributable to the arbitral
tribunal, then, it may order reduction of fees of arbitrator(s)
by not exceeding five per cent. for each month of such
delay.”
18. Section 29A(3) Arbitration & Conciliation Act, lays down:-
“Section 29A(3) The parties may, by consent, extend the
period specified in sub-section (1) for making award for a
further period not exceeding six months.”
19. While the application under Section 29A(4) of the Act was
pending, the learned Arbitrator, (Retd.) Justice P.K. Biswas
expired.
20. The issue as raised by the petitioner herein is:-
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“Whether, after the reference before the Arbitral Tribunal isterminated, by efflux of time, continuation of such
reference/proceeding without obtaining extension of mandate
of Arbitral Tribunal is vitiated by the doctrine of “coram non
judice” and there is an inherent lack of jurisdiction.”
21. The following judgments have been relied upon by the
petitioner:-
(i) Deep Industries Limited vs Oil and Natural Gas Corporation
Limited & Anr. (2020) Vol. 15 Supreme Court Cases Pg 706 Para 17,
20.
(ii) Bhaven Construction vs Executive Engineer, Sardar Sarovar
Narmada Nigam Limited & Anr. (2022) Vol. 1 Supreme Court Cases
Pg 75 Para 19, 20.
(iii) Satyendra Nath Ray us VCK Share & Stock Broking Services
Limited, 2021 SCC ONLINE CALCUTTA 2096-Para 1,18,19,30,31.
(iv) Surender Kumar Singhal & Ors. us Arun Kumar Bhalotia & Ors.,
2021 SCC ONLINE DELHI-3708 Para 17,25.
(v) Yashovardhan Sinha HUF & Anr. vs Satyatej Vyapaar Pvt. Ltd.
Unreported Judgment of Hon’ble Calcutta High Court in C.O.No.4125
of 2023-Para 29,30,31,32.
(vi) Rohan Builders (India) Private Limited vs Berger Paints India
Limited, (2025) 10 SCC 802.
(vii) Mohan Lal Fatehpuria vs Bharat Textiles & Ors., 2025 SCC
OnLine SC 2754.
22. The opposite party relies upon the following judgments:-
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i. Tata Sons Pvt. Ltd. v. Siva Industries: (2023) 5 SCC 421.
ii. SBP & Co. v. Patel Engineering: (2005) 8 SCC 618 [7J].
iii. Lalit Kumar V. Sanghavi v. Dharamdas V. Sanghavi: (2014) 7 SCC
255 [FB].
iv. JKS Infrastructure v. Zamil Steel: C.O. No. 97 of 2024, Cal. HC.
Ï…. Deep Industries v. ONGC Ltd.: (2020) 15 SCC 706 [FB].
vi. Bhaven Construction v. Executive Engineer: (2022) 1 SCC 75 [FB].
vii. Tangirala Srinivasa v. Sanjay Aggarwal: 2019 SCC Online Del
9112.
viii. Home and Soul Private Limited v. T.V. Today Network: 2024 SCC
OnLine Del 7252.
ix. M.D. Creations and Ors. v. Ashok Kumar Gupta: 2023 SCC OnLine
Cal 1419.
x. Surender Kumar Singhal v. Arun Kumar Bhalotia: 2021 SCC Online
Del 3708.
xi Space Wood Office Solution v. Anupam Rai Construction: 2019 SCC
OnLine Bom 751.
xii. Amit Kumar Gupta v. Dipak Prasad – 2021 SCC OnLine Cal 2174.
23. Admittedly, extension Section 29(A)(4) of the Act was prayed for,
when the previous Arbitrator was conducting the arbitration
proceedings.
24. On his death, the application became infructuous and was
withdrawn.
25. The petitioner contends that there was a conditional consent given
for the extension, but not for a new Arbitrator being appointed.
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26. Admittedly, the petitioner had submitted to the earlier
arbitration and also given consent for its extension. As such
when the said mandate of the earlier arbitral tribunal has
terminated as per Section 14 of the Act (on the death of the learned
arbitrator), substitution takes place as per Section 15(2) of the
Act, as in the present case.
27. The petitioner’s objection and case of ‘conditional consent’ in this
case, cannot stand, having submitted to arbitration all along,
extension and also to the appointment of the present arbitrator by
way of substitution and as such no fresh consent is required.
The stand of giving “conditional consent” only for extension of
mandate has no merit, in the facts and circumstances of this
case.
28. The learned Arbitrator (Hon’ble Justice Aloke Chakrabarty (Retd.))
in the present case vide his order dated 09.09.2021 rightly held:-
That the appointment is a new appointment, under Section 15 of
the 1996 Act and hence there is no question of extension under
Section 29A of the 1996 Act.
29. The impugned order thus calls for no interference, being in
accordance with law.
30. The period in Section 29A(1) of the Act shall start from the date
of communication of this order to the learned arbitrator.
31. СО 1765 of 2021 is dismissed.
32. All connected application, if any, stands disposed of.
33. Interim order, if any, stands vacated.
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34. Urgent Photostat certified copy of this judgment, if applied for, be
supplied to the parties, expeditiously after complying with all
necessary legal formalities.
(Shampa Dutt (Paul), J.)