✦ High Court of India

Writ Petition No. 8842 of 2025 · The High Court

Case Details

- 1 - NC: 2025:KHC:15774 WP No. 8842 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD WRIT PETITION NO. 8842 OF 2025 (GM-CPC) BETWEEN: SRI. ASHISH K PHILIP S/O PHILIP AGED ABOUT 37 YEARS R/AT NO. A-203 FLOOR-2 VAKIL MAGNOLIA SY.NO.115/1 AND 2 MADIVALA VILLAGE, ANEKAL TALUK BENGALURU-562106. …PETITIONER (BY SRI. VITTAL B R., ADVOCATE) AND: M/S. CALEDON TECHNOLOGIES INDIA PVT. LTD., HAVING ITS REGIONAL OFFICE AT NOVEL BUSINESS PARK, BALDWINS ROAD NEELASANDRA BANGALORE - 560047 REPRESENTED BY ITS AUTHORIZED SIGNATORY MR. VISHAL SONI ALSO AT M/S CALEDON TECHNOLOGIES INDIA PVT. LTD SERENE BUILDING NO 106, 4TH FLOOR 4TH C CROSS ROAD, 5TH BLOCK KORAMANGALA INDUSTRIAL LAYOUT S G PALYA BENGALURU 560095 ALSO AT M/S CALEDON TECHNOLOGIES INDIA PVT. LTD 3 NPL APARTMENTS, VIKASPURI NEW DELHI – 110018. …RESPONDENT (BY SRI.SURAJ SAMPATH., ADVOCATE FOR C/R) Digitally signed by HEMALATHA A Location: HIGH COURTOF KARNATAKA - 2 - NC: 2025:KHC:15774 WP No. 8842 of 2025 THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT OF CERTIORARI IN EXECUTION PETITION NO. 198/2024 BY QUASHING THE ORDER DATED 09/01/2025 PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE (COMMERCIAL COURT) AT BANGALORE IN IA NO. 1 TO 3 UNDER ORDER IA NO.1 UNDER ORDER XXI RULE 54 AND 64 READ WITH SECTION 151 OF CIVIL PROCEDURE CODE, 1908, FILED BY THE RESPONDENT AND ON IA NO. NO. 2 UNDER SECTION 151 OF CIVIL PROCEDURE CODE, 1908, R/W SECTION 29A(1) AND 29A(4) OF THE ARBITRATION AND CONCILIATION ACT, 1996 FILED BY THE PETITIONER HEREIN AS PER ANNEXURE-A AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD ORAL ORDER This writ petition is filed by the judgment debtor under Article 227 of the Constitution of India, challenging the order, dated 09.01.2025, passed by the X Additional District and Sessions Judge, Commercial Court, Bengaluru Rural District, Bengaluru in Com.Ex.No.198/2024, whereby, IA No.1 filed by the decree-holder under Order 21 Rules 54 and 64 of CPC was allowed and IA Nos. 2 and 3 filed by the judgment debtor under Section 151 of CPC r/w. Section 29-A(1) and 29-A(4) of the Arbitration and - 3 - NC: 2025:KHC:15774 WP No. 8842 of 2025 Conciliation Act, 1996 (for short, ‘1996 Act’) and Order 21 Rule 26 of CPC were dismissed. 2. The decree-holder obtained an arbitral award in Claim Petition No.1/2021, pronounced on 09.09.2023 and released on 11.09.2023. The award was for injunction as well as for recovery of Rs.2,80,00,000/- (rupees two crores eighty lakhs only) with costs and 7% interest. 3. The decree-holder filed Ex.No.198/2024 before the X Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru. In the said execution petition, decree- holder filed IA No.1 under Order 21 Rules 54 and 64 r/w. Section 151 of CPC for attachment and sale of the immovable properties of the judgment debtor. IA No.2 is filed by the judgment debtor under Section 151 of CPC r/w. Section 29-A(1) and 29-A(4) of the 1996 Act for dismissing the execution petition. The application filed by the decree-holder was allowed and the applications filed by the judgment debtor were dismissed. Being aggrieved by the same, the judgment debtor is before this Court. - 4 - NC: 2025:KHC:15774 WP No. 8842 of 2025 4. The learned counsel for the petitioner/judgment debtor raised the following contentions:

Legal Reasoning

(i) Firstly, as per Section 29-A(1) of the 1996 Act, the arbitral tribunal has to pass an award within one year from the date of completion of the pleadings. The pleadings has been completed on 10.02.2022. The award has been pronounced on 09.09.2023 and released on 11.09.2023, after completion of one year from the date of completion of the pleadings. In view of Section 29-A of the 1996 Act, since the award has been passed beyond one year, the award has to be terminated. (ii) Secondly, under Section 23(4) of the 1996 Act, pleadings has to be completed within six months from the date the arbitrator or all the arbitrators, as the case may be, received notice, in writing, of their appointment, the six months is the outer limit. The twelve months period for passing the award will start from the day of filing of the defendant’s side statement of defence and counter-claim. The date of invoking of the arbitration was 29.09.2021. - 5 - NC: 2025:KHC:15774 WP No. 8842 of 2025 The judgment debtor has completed his pleadings on 10.02.2022, within twelve months from the date the arbitrator was to pass an award. But the arbitrator passed the award on 09.11.2023, which is beyond one year. (iii) Thirdly, under Section 23 of 1996 Act, there is no provision for filing rejoinder. Even if the court permits to file rejoinder to the parties, it cannot grant time beyond six months from the date of invoking of the arbitration clause. (v) Fifthly, the Executing Court has considered the limitation of one year from the date, which is granted by the arbitrator, for filing the rejoinder, which is not permissible. The Executing Court has considered that the arbitrator has power to grant time to file rejoinder. Since the decree-holder has not chosen to file rejoinder on 10.08.2022, the said date is taken as the date when pleading has been completed. This finding of the Executing Court is contrary to the provisions of Sections 29-A and - 6 - NC: 2025:KHC:15774 WP No. 8842 of 2025 23(4) of the 1996 Act. Hence, he sought for allowing the writ petition. 5. Per contra, learned counsel appearing for the respondent/decree-holder raised the following contentions: (i) Firstly, the writ petition filed by the petitioner itself is not maintainable under Article 227 of the Constitution of India and he cannot seek for a writ of certiorari quashing the order passed by the civil court on an application. (ii) Secondly, against the award passed by the arbitral tribunal, the judgment debtor has filed a petition under Section 34 of the 1996 Act and he has taken a specific ground that the arbitral award has to be terminated under Section 29-A of the 1996 Act and he has also alleged regarding bias against the sole arbitrator. The petition filed under Section 34 of the 1996 Act has been dismissed by order dated 09.12.2024. Being aggrieved by the same, he filed an appeal in FAO-CARB No.9/2025 - 7 - NC: 2025:KHC:15774 WP No. 8842 of 2025 (O&M) before the High Court of Punjab and Haryana. In the appeal memo, he has also taken a specific contention regarding the termination of award under Section 29-A of 1996 Act. When he was already agitating the matter in an appeal pending before the High Court of Punjab and Haryana, he cannot maintain an application in the execution petition on the same grounds. He cannot pursue two parallel remedies in respect of the same matter at the same time. In support of his contention, he relied on the judgment of the Apex Court in Civil Appeal

Decision

No.2206/1968 disposed of on 19.11.1976 in the case of JAISINGH vs. UNION OF INDIA. (iii) Thirdly, Section 23(4) of the 1996 Act is not a mandatory provision, it is discretionary. The court has the power to extend the period of six months. (iv) Fourthly, under Section 29-A(1) of 1996 Act, the award has to be passed within a period of twelve months from the date of completion of the pleadings. The pleadings includes rejoinder. In support of his contention, - 8 - NC: 2025:KHC:15774 WP No. 8842 of 2025 he relied on the judgment of the High Court of New Delhi in the case of EMCO LIMITED vs. DELHI TRANSCO LIMITED (O.M.P. (MISC.)(COMM.) No.638/2024). Hence, he contended that, on 20.07.2022 the Tribunal permitted to file the rejoinder and adjourned the matter to 02.08.2022. Again, it has been adjourned to 10.08.2022 for filing the rejoinder and framing the issue and evidence of the claimant. The counsel for the claimant has stated that he is not intending to file the rejoinder. Therefore, 12 months period has to be calculated from 10.08.2022 and it completes on 10.08.2022. Even though, no award has been passed on or before 10.08.2023, no objection has been raised by the judgment debtor, which means that the parties have impliedly consented for extension of time. Thereafter, the award has been passed on 09.09.2023. In support of his contention, he relied on the judgment of High Court of Himachal Pradesh in the case of BALAK RAM AND OTHERS vs. NATIONAL HIGHWAYS AUTHORITY OF INDIA (Arbitration Appeal Nos. 16- 19 and 21 of 2003) and the judgment of Madras High - 9 - NC: 2025:KHC:15774 WP No. 8842 of 2025 Court in the case of AYYASAMY vs. A.SHANMUGAVEL (DIED) AND OTHERS (C.M.P.(M.D.) Nos.1888 and 8135 of 2024. Therefore, he contended that the award has been passed within the time limit. Hence, he sought for dismissal of the petition. 6. Heard the learned counsel for the parties and perused the writ papers. 7. Even though the petitioner has sought number of prayers, after the decree-holder raised an objection, the petitioner/judgment debtor filed a memo stating that he will not press prayers (b), (c), (d) and (e). The memo is taken on record. 8. The arbitral tribunal or the sole arbitrator passed the award on Claim Petition No.1/2021, which was pronounced on 09.09.2023 and detailed award given on 11.09.2023. Thereafter, the petitioner/judgment debtor filed an application under Section 34 of 1996 Act. In paragraph 21 of the said application, he has taken a specific contention regarding Section 12(3) and Section - 10 - NC: 2025:KHC:15774 WP No. 8842 of 2025 29-A of the 1996 Act. He has also made an averment regarding bias against the sole arbitrator. After considering all these aspects, the District Court, Chandigarh, by order dated 09.12.2024 rejected the application. Being aggrieved by the same, the petitioner/judgment debtor filed an appeal before the High Court of Punjab and Haryana in FAO-CARB No.9/2025 (O&M). In the appeal, he has taken a contention regarding termination of the award under Section 29-A of the 1996 Act and the same is pending for consideration. In the meantime, decree-holder filed execution petition in Ex.No.198/2024 before the X Additional District and Sessions Judge, Commercial Court, Bengaluru for executing the arbitrary award. In the said execution petition, the judgment debtor filed an application under Section 29-A(1) and 29-A(4) of the 1996 Act for termination of the award. He cannot pursue two parallel remedies in respect of the same matter, at the same time. In this regard, the Apex Court in the case of JAISINGH (supra) has held as under: - 11 - NC: 2025:KHC:15774 WP No. 8842 of 2025 “(4) The High Court dismissed the writ petition on the ground that it involved determination of disputed questions of fact. It was also observed that the High Court should not in exercise of its extraordinary jurisdiction grant relief to the appellant when he had an alternative remedy. After hearing Mr. Sobhagmal Jain on behalf of the appellant, we see no cogent ground to take a view different from that taken by the High Court. There cannot, in our opinion, be any doubt on the point that the extent of purity of the gypsum won by the appellant is a question of fact. It has also been brought to our notice that after the dismissal of the writ petition by the High Court, the appellant has filed a suit, in which he has agitated the same question which is the subject-matter of the writ petition. In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time.” 9. In view of the above, it is very clear that the application – IA No.2 is not maintainable before the executing court. The Executing Court also considered the application filed by the judgment debtor on merits. The main ground urged by the petitioner is that under Section 23(4) of 1996 Act, there is no provision for filing the - 12 - NC: 2025:KHC:15774 WP No. 8842 of 2025 rejoinder. Once the respondent filed a counter claim, on that day, the pleadings of the parties is completed. The Tribunal has no power to extend the period beyond six months. It is also contended that under Section 29-A of the 1996 Act, from the date when the defendant filed statement of defence from that day, within twelve months, the award has to be passed. 10. Section 23(4) and 29-A of the 1996 Act have been considered by the High Court of Delhi in the case of EMCO LIMITED (supra). The relevant paragraph are extracted below: “26. The relevant provisions which call for consideration in this case would be Section 23(4) and Section 29A(1) of the 1996 Act. 27. Section 23(4) does not refer to the termination of the mandate of the Arbitral Tribunal. It merely states that the statement of claim and defence under Section 23 would be completed within six months from the date of the arbitrator receiving notice of its appointment. The interlink between the termination of the mandate of the - 13 - NC: 2025:KHC:15774 WP No. 8842 of 2025 arbitral tribunal and Section 23(4) is contained in 29A(1). 28. It is necessary to appreciate the difference in the wordings of Section 23(4) and 29A(1) read with Section 29A(4). Section 29A(1) states that "the award in matters other than international commercial arbitration, shall be made by the arbitral tribunal within twelve months from the date of completion of pleadings under sub section 4 of Section 23". Section 29A(4) goes on the state that "if the award is not made within the period specified in Section 29A(1), the mandate of the arbitral tribunal would terminate unless the mandate is extended by the Court". 29. Section 29A(1) read with Section 29A(4) thus, envisages termination of the mandate of arbitral tribunal on the tribunal not making the award within twelve months of completion of pleadings under Section 23(4). It does not state that the period of twelve months would be reckoned from the date of filing of the SOD before the arbitral tribunal. Clearly, the period of twelve months to be reckoned from the date of completion of pleadings. The concluding words "under sub Section (4) of Section 23" are, in my considered opinion, employed only because Section 23(4) refers to the - 14 - NC: 2025:KHC:15774 WP No. 8842 of 2025 filing of the SOD before the learned arbitral tribunal. It would not, in my view, be permissible to read Section 29A(1) as requiring the arbitral award to be passed within twelve months from the date of filing of the SOD as that would amount to rewriting Section 29A(1). 30. The matter may be viewed from another angle as well. Had the legislature intended to require the arbitral award to be passed within twelve months of filing of the SOD, it could very well had said so, especially when Section 23(4) particularly refers filing of the SOD. The legislature, has consciously, not done so. Rather, it has reckoned the period of twelve months from the date of completion of pleadings. 31. The issue that arises for consideration, is that, the interpretation to be placed on the word "pleadings" in Section 29A(1). Specifically, what the Court has to consider is whether, where the rejoinder has been permitted to be filed, the rejoinder should also be included in the ambit of the expression "pleadings". 32. This issue is no longer res integra. It stands decided, albeit in the context of the CPC, rather than the 1996 Act, by the judgment of R.C - 15 - NC: 2025:KHC:15774 WP No. 8842 of 2025 Lahoti J (as he then was) sitting singly in this Court in Anant Construction (P) Ltd v Ram Niwas. This Court, in that case, specifically addressed the issue of whether a rejoinder/replication could be included within the ambit of the expression "pleadings", especially in the light of Order VI Rule 10 of the CPC which specifically states that the expression "pleadings" means the plaint or the written submissions. Lahoti J, in his judgment, has specifically held in para 24 thus: "Replication is a pleading by plaintiff in answer to defendant's plea. 'Rejoinder' is a second pleading by defendant in answer to plaintiff's reply i.e. replication." 33. The same view stands reflected in the judgment of the Division Bench of the High Court of Andhra Pradesh in Nicolas Piramal India Ltd vs. Cultor Food Science Inc". In the said decision, the High Court has held that "rejoinder, if received, would also be pleading within the meaning of Order VI". 34. Specifically in the context of pleadings before the Arbitral Tribunal, a Division Bench of the Karnataka High Court has, in Buoyant Technology Constellations Pvt Ltd Infrastructure Developer Pvt Ltd, held as under: - 16 - NC: 2025:KHC:15774 WP No. 8842 of 2025 "(c) In terms of Section 23(4), pleadings before the Arbitral Tribunal would include statement of claim, objections, counterclaim and objections to counterclaim. At this stage, it would be useful to refer Order VI Rule 1 of CPC which defines 'pleading'. In terms of Order VI Rule 1 of CPC, 'pleading' shall mean plaint or written statement. Rejoinder or replication could be filed with the permission of the Court. When the rejoinder or replication is filed with the permission of the Court, then it would form part of pleadings." 35. The above decision of the Karnataka High Court was carried in appeal to the Supreme Court in SLP (C) 9331/2024, which was disposed of by the following order dated 29 April, 2024: "We are in agreement with the findings recorded in the impugned judgment that in case a rejoinder or sur-rejoinder are filed and taken on record, the pleadings for the purpose of Section 29A of the Arbitration and Conciliation Act, 1996, shall concluded on the date the last pleading is filed. We also agree that the period during which there was a stay of arbitration proceedings has to be excluded. Recording the aforesaid, the special leave petition is dismissed. Pending application(s), if any, shall stand disposed of. " - 17 - NC: 2025:KHC:15774 WP No. 8842 of 2025 36. Ms. Dhulia seeks to distinguish these decisions on the ground that the rejoinder, in these cases, was actually filed and also emphasizes the word "if received", figuring in the said decisions. 37. In my view, such a distinction would be completely untenable in law. The question that arises before the Court is whether a rejoinder can be treated as part of "pleadings" for the purpose of Section 291. Inasmuch as the question arises in the context of determining the terminus ad quem from which the period of twelve months under Section 29A(1) is required to be reckoned, it has to be determined with respect to the basic issue as to whether the rejoinder, if permitted to be filed, would constitute part of the pleadings. It cannot be said that, if the rejoinder is permitted to be filed, it would constitute part of the pleadings only if it is actually filed. Where the rejoinder is permitted to be filed by the Court or by the Arbitral Tribunal, the period of twelve months, for the purposes of Section 29A(1) would clearly reckon from the time when the right to file rejoinder stands exhausted. Needless to state, if the rejoinder is on record, the period of twelve months would be reckoned from the date when the rejoinder is actually filed.” - 18 - NC: 2025:KHC:15774 WP No. 8842 of 2025 11. From the above, it is very clear that the Tribunal or the Court has the power to grant time for filing the rejoinder. In the case on hand, the Tribunal has granted time till 20.07.2022 to file rejoinder and adjourned the matter to 02.08.2022. On 02.08.2022, it has been adjourned to 10.08.2022 for filing the rejoinder. On 10.08.2022, counsel for the claimant has stated that he does not intend to file the rejoinder. Hence, on that day, issues were framed. In view of the above judgment, twelve months time has to be considered from 10.08.2022. One year period completed on 10.08.2023. The award is not passed before 10.08.2023. No objection was filed by the petitioner. Thereafter, the award passed on 09.09.2023. The High Court of Madras in the case of AYYASAMY (supra) has held that if the parties have not objected, there is implied consent of the parties. The relevant portion is extracted below. “42. Section 4 of the Arbitration and Conciliation Act, 1996: - 19 - NC: 2025:KHC:15774 WP No. 8842 of 2025 "4. Waiver of right to object.- A party who knows that- (a) any provision of this Part from which the parties may derogate, or (b) any requirement under the arbitration agreement, has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object." 43. The respondents are very well aware that Section 29-A(1) of the Act provides for an outer limit of 12 months for passing of an award from the date on which the Arbitrator had entered upon the reference. They are also aware of the fact that in case, if the Arbitrator has not passed the award within the said period, the mandate of the Arbitrator shall get terminated unless it is extended by consent of the parties or by an order of the Court. Having knowledge about the said legal mandate, the respondents have not raised any objection with regard to non passing of the award and waited till an award was passed by the Sole Arbitrator on 28.03.2018. Therefore, it could be concluded that the respondents have not only given their implied consent for passing of the award, but also they waived their rights to object to the - 20 - NC: 2025:KHC:15774 WP No. 8842 of 2025 passing of the award beyond a period of 12 months. 44. The Hon'ble Supreme Court in a judgment reported in (2002) 3 SCC 175 (Inder Sain Mittal Vs. Housing Board, Haryana) while considering the objection to the award on the ground that the Arbitrator did not have full qualification stipulated in the arbitration agreement, had proceeded to lay down the following proposition of law in paragraph Nos. 12 and 13 had held as follows: "12. In view of the foregoing discussions, with reference to the provisions of the Act, we conclude thus: (i) Grounds of objection under Section 30 of the Act to the reference made, with or without intervention of the Court, arbitration proceedings and the award can be classified into two categories, viz., one emanating from agreement and the other law. in case (ii) In case the ground of attack flows from agreement between the parties which would undoubtedly be a lawful agreement, and the same is raised at the initial stage, Court may set it right at the initial stage or the party even subsequently the objecting has not participated proceedings or participated under protest. But if a party acquiesced to the invalidity by his the proceedings and taking a chance therein cannot be allowed to turn round after the award goes against him and is estopped from challenging validity or otherwise of reference, arbitration proceedings and/or conduct by participating in in - 21 - NC: 2025:KHC:15774 WP No. 8842 of 2025 award inasmuch as right of such a party to take objection is defeated. (iii) Where ground is based upon breach of mandatory provision of law, a party cannot be estopped from raising the same in his objection to the award even after he participated in the arbitration proceedings in view of the well settled maxim that there is no estoppel against statute. (iv) If, however, basis for ground of attack is violation of such a provision of law which is not mandatory but directory and raised at the initial stage, the illegality, in appropriate case, may be set right, but in such an eventuality if a party participated in the proceedings without any protest, he would be precluded from raising the point in the objection after making of the award. 13. In the case on hand, it cannot be said that continuance of the proceedings and rendering of awards therein by the Arbitrator after his transfer was in disregard of any provision of law much less mandatory one but, at the highest, in breach of agreement. Therefore, by their conduct by participating in the arbitration proceedings without any protest the parties would be deemed to have waived their right to challenge validity of the proceedings and the awards, consequently, the objections taken to this effect did not merit any consideration and the High Court was not justified in allowing the same and setting aside the award." 45. When Section 29-A of the Act is only construed to be a procedural one and discretion is given to the parties to extend the arbitration period for a further period of 6 months, this Court can - 22 - NC: 2025:KHC:15774 WP No. 8842 of 2025 very well arrive at a conclusion that the respondents herein by not raising any objection before passing of the award, have not only given their implied consent but also waived their rights to raise any objection with regard to the non passing of the award within a period of 12 months. 46. The objection relating to the invalidity of the award has been raised by the respondents only after they have suffered an adverse order. If such an interpretation is given to Section 29-A(4) of the Arbitration and Conciliation Act, the parties would resort to this argument after coming to know that they have suffered an adverse order. The legislative intent of inserting Section 29-A of the Act is only for expeditious disposal of the arbitration proceedings and not to confer a new defence upon an unsuccessful party to challenge the award and to reopen the entire proceedings.” 11. In view of the above, it is clear that the award passed in the case on hand is within the time limit. Therefore, the contention of the petitioner that the award has to be terminated is unsustainable. In respect of IA No.1 is concerned, the trial court, after considering all these aspects justified in allowing IA No.1. Hence, the - 23 - NC: 2025:KHC:15774 WP No. 8842 of 2025 order passed by the trial court on IA No.1 filed by the decree-holder under Order 21 Rules 54 and 64 of CPC is just and reasonable. Therefore, the writ petition is devoid of merit. Accordingly, it is dismissed. In view of disposal of the petition, all pending applications stand disposed of. Sd/- (H.T. NARENDRA PRASAD) JUDGE CM LIST NO.: 1 SL NO.: 245

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