Recently, in Sheela Chowgule v. Vijay V. Chowgule, 2024 SCC OnLine Bom 1069, the High Court while dealing with a similar issue observed that KIPL Vistacore Infra Projects (supra) and Mormugao Port (supra) have conflicting views.
The Court observed that while various provisions of the Act and decisions of the apex court held that the word ‘Court’ found in Section 29-A would have to be interpreted in the textual meaning and in the contextual meaning as a whole. Further, the meaning of each Section, each clause, each phrase and each word is to be analysed to fit into the scheme of the entire Act. Section 29-A does not solely decide on the extension of the arbitral mandate, but it also deals with various other aspects including the termination of the mandate, substitution of one of the arbitrators or all of the arbitrators, and the reduction of fees of the arbitrator. Thus, the power to substitute or re-constitute the Arbitral Tribunal as provided under sub-section 6 of Section 29-A will have to be read with Section 11 which deals with appointment of arbitrators. There cannot be any difference with regard to the appointment of an arbitrator with that of substitution of one of the arbitrators or reconstitution the arbitral tribunal. The words used in sub-section 7 of the Section 29-A specifically provides the word “appointed under this section.” Thus, substitution is in fact a fresh appointment as contemplated under Section 11 of the said Act. Thus, while extending the period of arbitration, the Court is also empowered either to substitute one or all the arbitrators and reconstitute the arbitral tribunal. It practically deals with appointment of fresh arbitrators, which is the power given to the High Court in case of domestic arbitration as found in Section 11.
Since there are two divergent views of two coordinate Benches of the High Court on the issue of the definition of “Court” as found mentioned in Section 29A(4), the High Court has now in Sheela Chowgule (supra) referred the matter to a larger Bench.
Source: Barandbench
