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Judgment
Arindam Sinha, J
Mr. Mohanty, learned senior advocate appears on behalf of petitioner and submits, his client is claimant before the Tribunal. He draws attention to procedural order no.7 dated 10th August, 2020 made by the Tribunal. He points out, serial no.4 under paragraph 3 lists his client's application for calling for the records from the previous arbitrators.
This was dealt with by the Tribunal in context of section 15 (3) of Arbitration and Conciliation Act, 1996. He demonstrates that the application was dealt with by this order on respondent having had been granted time to file objection, but not done so. The Tribunal decided that it would exercise discretion to make following directions:-
"1. By Claimant - Statement of Claim by 07.09.2020;
By Respondent - Statement of defence / Counter Claim - by 07.10.2020.
By Claimant - Reply to Counter Claim by 07.11.2020.
The Admission / Denial etc. shall be completed by 21.11.2020. Further directions given in First Procedural Order and Order dated 10.07.2020 remain unaltered. The ext date shall be fixed and notified later. This order is passed with the concurrence of all the members of the Arbitral Tribunal. The parties shall act on the soft copy of the Order received through email without waiting for the hard copy. The bank details of the learned Arbitrators shall be sent by whatsapp to Mr. Pranab Kumar Mohanty,. Company Secretary at M.No.7008836661 and Mr. Sunil Shetty, Advocate at M.No.7259307933."
Mr. Mohanty relies on sub-sections (3) and (4) of section 15. He submits, on substitution by a newly constituted Tribunal, sub-section (2) relates to 'hearings' previously held as may be repeated at the discretion of the substituted Tribunal, subject to otherwise agreement of the parties. As such, short point is that pleadings are outside purview of sub-section (3). Therefore, they could not have been direction for fresh pleadings to be filed.
Mr. Rath, learned advocate appears on behalf of opposite party-respondent. He submits, firstly, the writ petition is not maintainable. If it is to be dealt with under article 227 in the Constitution, it is bad for non-joinder of the Tribunal as a party. Secondly, there has been waiver on part of petitioner, on its right to object, since it would appear from procedural order no.1 dated 6th March, 2020, made by the Tribunal, petitioner had submitted to the direction to file fresh pleadings. He relies on following extracted and reproduced from procedural order no.1:-
" The Claimant had been directed to file its Statement of Claim in the Notice of Preliminary Hearing dated 20.01.2020. Learned counsel for the Claimant stated that some more time would be needed as the records relate to more than fifteen years. Considering the said aspect, time is granted till 30.04.2020."
Thirdly, any objection that petitioner may have would relate to the question of jurisdiction of the Tribunal and therefore, petitioner must approach the Tribunal itself under section 16.
By consent, list on 20th January, 2022 marked at 2:00 P.M.
Interim order to continue till next date.
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