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TMI Blog2021 (9) TMI 1568X X X X Extracts X X X X X X X X Extracts X X X X ..... bitration in accordance with the Bye-Law and Business Rules of the Exchange. 2. Bye-Law 15.1.3 in the "Definitions" defines "Arbitral Tribunal" to mean "one or more arbitrators constituting a tribunal to adjudicate a reference to arbitration". The terms "Arbitrator" and "Panel of Arbitrators" are also defined. The arbitration is subject to the provisions of the Arbitration and Conciliation Act, 1996. The controversy that has given rise to the present petition is the petitioner's contention that arbitration proceedings had once commenced and having commenced, it remained inconclusive within time permitted by the rules. Time having expired, no tribunal could now be appointed. 3. Mr. Ardeshir, learned counsel appearing on behalf of the petitioner has relied upon the provisions of Bye-Law 15.32, which provides that the proceedings shall be concluded by issuing an award within four months from the date of appointment of the Arbitrator(s). He submitted that the period of four months commenced on 17th June 2020, when the tribunal was constituted. Procedural Order No.1 dated 28th July 2020, annexed at Exhibit-J to the petition, reveals that the tribunal was constituted on 17th June 2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not resulted in an award and hence the proceedings stand terminated. The petitioner therefore, invoked the provisions of Section 14 and 15 of the Arbitration and Conciliation Act, 1996, contending that the tribunal was functus officio and the arbitration agreement had worked itself out. 6. In this background, the petitioner received a further communication dated 7th January 2021 from the Exchange recording the fact that the reference could not be concluded with issuance of an award within the extended timelines and the Exchange had received an application from the Presiding Arbitrator seeking extension of time in terms of bye-law 15.32 for two months, but that request was not acceded to by the relevant authority, as contemplated under the bye-laws, and that the mandate of the tribunal therefore stood terminated. This is an accepted position; however, what transpired thereafter is what led to the current controversy. 7. The Exchange offered to the petitioner an opportunity to be part of a "Combined Arbitration Proceedings". In the alternative, the petitioner could choose to have an independent panel as per the normal process by formation of a separate arbitral tribunal. The Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Bye-Law 15.18 and following that procedure, Mr. Doctor therefore submitted that freshly constituted tribunal has jurisdiction, the right to proceed to conduct the reference and decide the reference. He therefore submitted that the petition deserves to be rejected. 11. Having considered the respective submissions and the provisions of the Bye-Laws and Business Rules of the Exchange, I am of the view that the termination of the mandate of the erstwhile tribunal is no ground for not participating in the reference; especially since the Bye-Laws and Business Rules are binding on both sides and the Exchange had constituted a fresh tribunal in the meantime. The fact that the Exchange had constituted the tribunal is not in dispute and it is in this background that the petitioner has approached this court seeking to quash and set aside the communications received from the Exchange. These communications are dated 7th January 2021 (Exhibit-Q), 14th January 2021 (Exhibit-R), 22nd January 2021 (Exhibit- T) and 25th January 2021 (Exhibit-V). By these communications, the Exchange had initially offered the reference to be made under "Combined Arbitration Proceedings" or at the option of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the rival contentions of the parties. 13. I am also of the opinion that this petition is misconceived. Section 14 of the Arbitration and Conciliation Act, 1996 deals with failure or impossibility of the tribunal to act. It provides that the provisions governing the circumstances under which the arbitrator or tribunal are de jure or de facto unable to perform his functions without undue delay and if he withdraws from his office or if the parties agree to the termination of his mandate, it will be considered as a failure or impossibility to act and if the controversy giving rise to such grounds rendering the tribunal to perform its functions, the party may apply to court to decide on termination of the mandate. 14. Mr. Ardeshir in the course of submissions placed reliance on sub-sections (1) and (2) of Section 14 of the Act in support of his contention that, in the present case, the tribunal had become de jure and de facto unable to perform its functions, because Bye-Law 15.32 clearly provides for the scope of the arbitral tribunal to proceed but only within the four months period. A provision is also made for extension of time. An extension was sought of by the Presiding A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted in accordance with "rules" that were applicable to the appointment of the arbitrator being replaced. In the instant case, those "rules" are the very Bye-Laws and Business Rules under which the first tribunal was appointed and a fresh tribunal has been appointed. Bye-Law 15.32 would therefore apply and continue to bind the parties by virtue of Bye-Law 3.1.2 (Conciliation and Arbitration) and Bye-Law 3.3 (Jurisdiction), read with Bye-Laws 15.14, 15.18 and 15.32. 17. The question in the instant case is whether the mandate of the first tribunal appointed on 17th June 2020 survives or it stood terminated? There is no dispute between the parties that the mandate of the first tribunal stood terminated upon expiry of timelines on 31st December 2020. Thereupon, given the facts of the case, the Bye-Laws would once again come into play and these Bye-Laws and Business Rules, it is not disputed, are binding on both parties. By virtue of these Bye-Laws, the Exchange was entitled to appoint a tribunal again. Section 14 or 15 therefore would not prevent in any manner, the Exchange from appointing a new tribunal, which it has done in the usual course. It must be noted that the Exchange was co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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