JUDGEMENT
VAIBHAVI D.NANAVATI,J. -
(1.)By way of present petition, the petitioner herein has prayed to extend the time-limit of the arbitration proceedings between the petitioner and the respondents by 9 months with effect from 14/12/2022 under Sec. 29A(4) and Sec. 29A(5) of the Arbitration and Conciliation Act, 1996 (for short 'the Act, 1996'). Undisputedly, the dispute-in-question is with respect to Part - I of the Act, 1996.
(2.)The brief facts leading to the filing of the present petition read thus:
2.1. It is the case of the petitioner herein that, due to disputes between the petitioner and the respondents arising out of the concession agreement dtd. 30/9/2007, the petitioner was constrained to invoke the arbitration clause No.18 of the concession agreement dtd. 30/9/2007 vide notice dtd. 15/1/2019 nominating Shri Mihir Thakore, Senior Advocate as an arbitrator.
2.2. That, the respondents nominated Hon'ble Justice D.A. Mehta, Retired Judge, High Court of Gujarat as an arbitrator vide notice dtd. 13/2/2019. Both the nominees in turn appointed Hon'ble Justice K.S. Radhakrishnan, Retired Judge, Supreme Court of India as the umpire. That, upon constitution of the panel on 1/3/2019, the first meeting was held on 8/3/2019 wherein, it was recorded that the matter is likely to take more than one year considering the volume of work involved and hence, it was agreed to extend a further period of six months as provided under Sec. 29A(3) of the Act, 1996 for completion of the arbitration proceedings. A copy of the said order dtd. 8/3/2019 is duly produced at Annexure - A to the petition.
2.3. That, the pleadings came to be completed on 2/7/2019. On completion of the pleadings, issues came to be framed on 2/10/2019. That, due to Covid-19 pandemic, it was not possible to lead evidence and therefore, the leading of evidence came to be deferred. The Tribunal by order dtd. 28/10/2021 directed the parties to file their affidavit of evidence on or before 15/12/2021 and further fixed 17/2/2022, 18/2/2022 and 19/2/2022 as dates for conduct cross-examination. A copy of the said order dtd. 28/10/2021 is duly produced at Annexure - D to the petition.
2.4. That, the claimant indicated its readiness to file the affidavit of evidence of its witnesses on 12/1/2022, however, the respondent sought time to file affidavit of evidence of its witnesses on account of the Covid-19 pandemic. Considering the aforesaid, the Tribunal granted further 9 weeks to the respondent - Gujarat Maritime Board (for short 'respondent - GMB') vide E-mail dtd. 15/2/2022. By procedural order Nos.18 and 19 dtd. 27/6/2022, the Tribunal denied the request of the respondent - GMB to defer the arbitration proceedings and directed the parties to file their affidavit of evidence on or before 27/7/2022. That, for the purpose of cross examination, the dates fixed by the Tribunal were 19/8/2022, 20/8/2022, 26/8/2022 and 27/8/2022.
2.5. That, the respondent - GMB vide E-mail dtd. 2/8/2022, requested to defer the cross-examination of the witnesses of the petitioner on 19/8/2022 and 20/8/2022 in view of the difficulty in obtaining instructions on account of holidays. That, the petitioner opposed such request and insisted that the pending interim application may be taken up for hearing on 19/8/2022 and 20/8/2022.
2.6. That, on 18/8/2022, the nominee of the respondent - GMB being Hon'ble Justice D.A. Mehta, Retired Judge, High Court of Gujarat, sent a letter dtd. 17/8/2022 stating that due to personal reasons, he was not in a position to continue as an arbitrator in the proceedings and therefore, the said nominee withdrew his consent given to the respondent to act as an arbitrator. That, due to the aforesaid development, the sittings fixed on 20/8/2022, 26/8/2022 and 27/8/2022 had to be cancelled.
2.7. That, the respondent - GMB thereafter, nominated Hon'ble Justice K.S. Jhaveri, former Chief Justice of Orissa High Court to act as an arbitrator. That, the Tribunal met on 12/10/2022 and fixed several dates in the month of December and January viz. 19/12/2022, 20/12/2022, 21/12/2022, 16/1/2023, 17/1/2023 and 18/1/2023 for the purpose of cross-examination of witnesses. That, the pleadings came to be completed on 2/7/2019. That, on counting of time from 2/7/2019, the time of 12 months expired on 1/7/2020 however, the time from 15/3/2020 up to 28/2/2022 has been excluded as per the order dtd. 10/1/2022 passed by the Hon'ble Supreme Court. The time elapsed from 2/7/2019 till 15/3/2020 is 7.5 months. The time from 15/3/2020 till 28/2/2022 has to be excluded. The time of 12 months expired on or around 15/6/2022. Since the parties had agreed to extend the time by 6 months by consent, the 6 months would expire on 14/12/2022.
2.8. In view of the aforesaid facts, the petitioner herein has approached this Court by preferring the present petition under Sec. 29A of the Arbitration and Conciliation Act, 1996, seeking following reliefs:
"A. YOUR LORDSHIPS BE pleased to extend the time-limit of the arbitration proceedings between the petitioner and the respondents by 9 months with effect from 14/12/2022 under Sec. 29A(4) and Sec. 29A(5) of the Arbitration and Conciliation Act, 1996 in the interest of justice;
B. YOUR LORDSHIPS BE pleased to pass such other and further orders as may be deemed fit in the interest of justice."
(3.)Heard Mr. Saurabh Soparkar, learned Senior Counsel with Mr. Unmesh Shukla, learned Senior Counsel assisted by Mr. Aditya Gupta, learned advocate appearing for the petitioner and Mr. Kamal Trivedi, learned Senior Counsel assisted by Mr. G.H. Virk, learned advocate with Mr. Prashanth S. Undurthi, learned advocate with Mr. Shayamal Bhimani, learned advocate appearing for the respondent No.1- GMB.