Pasari Multi Projects Private Limited vs Ahluwalia Contract (India) Limited on 27 March, 2026

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    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.

    SPONSORED

    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
    2

    2026:CHC-AS:497
    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)
    3

    2026:CHC-AS:497
    & (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.

    4

    2026:CHC-AS:497

    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
    5

    2026:CHC-AS:497
    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-

    6

    2026:CHC-AS:497

    (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:-
    7

    2026:CHC-AS:497
    “Whether, after the reference before the Arbitral Tribunal is

    terminated, 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:-
    8

    2026:CHC-AS:497
    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.
    9

    2026:CHC-AS:497

    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.
    10

    2026:CHC-AS:497

    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.)



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