- (1.) The Court : On 25th June, 2019 there was hearing and a record of it. Text of order dated 25th June, 2019 is reproduced below:- "Mr. Datta learned advocate appears on behalf of petitioner in this arbitration petition for extension of time to conclude the reference. He submits, it would appear from particulars of proceedings in the reference that respondent obstructed conclusion of it by failing to appear. He seeks extension of time for the Tribunal to conclude the reference in making and publishing award. Mr. Pal learned advocate appears on behalf of respondent and submits, his client has apprehension regarding two of three arbitrators being presiding arbitrator and petitioner's nominated arbitrator, as exhibiting bias in favour of petitioner. Hence, there be resort to sub-section (6) in section 29A of Arbitration and Conciliation Act , 1996 for there being substitution of the arbitrators. On exhibition of bias, Mr. Pal relies on record in minutes of 9th and 19th sittings in the reference, held respectively on 7th March, 2018 and 13th March, 2019. He demonstrates from minutes of 9th sitting that the Tribunal consisted of only two out of three members. Yet, the two arbitrators acted as if they were the Tribunal, in spite of absence of one of the members, and passed an elaborate order. From minutes of 19th sitting held on 13th March, 2019 Mr. Pal points out, manner in which issues were framed would appear from paragraph 20. He refers to sub-section (1) of section 23 to submit, claimant did not indicate points at issue relief or remedy sought, in relation to issues framed by Tribunal. He hands up copy of statement of claim to show omission by claimant to plead dissolution of partnership.
(2.) So far as record in minutes of 9th sitting is concerned, it is an elaborate order of adjournment passed by two out of three arbitrators. Nothing was decided for or against either of the parties. That brings up for adjudication respondent's contention regarding bias based on minutes of 19th sittings 13th March, 2019. This minutes is last annexure to the application. It appears to have been signed by two out of three arbitrators. Respondent's nominee arbitrator did not put signature, or at least it is not appearing in the disclosure. Pending parties being heard on adjourned date regarding this omission of respondent's nominee arbitrator's signature not appearing in the disclosure, Court notices paragraphs 19 and 20 of the minutes, which are reproduced below: "19. In-so-far as the suggested issues are concerned, it appears that the four issues suggested by and/or on behalf of the claimant cover all the issues involved in the suggestion of the respondent, excepting perhaps issue No.V and VII. In-so-far as Issue No.V, as suggested by and/or on behalf of the respondent is concerned, the same cannot be taken into consideration by the Arbitral Tribunal inasmuch as it falls outside its jurisdiction. The Learned Counsel for the respondent, however, dispute the said proposition and submits that he will rely upon a decision of the Apex Court to the effect that the Arbitral Tribunal has jurisdiction to consider issue No.V. Issue no.VII has already been dealt with. 20. In view of above, only the following issues are to be decided upon:- 1. Whether the claimant is entitled to dissolution of the firm? 2. Whether the claimant is entitled to induct new partners upon such dissolution? 3. What should be the lawful dues of the respondent from the partnership firm? 4. To what relief is the claimant entitled?" Respondent will be heard on why this framing of issues should not be held to be an exercise duly made since the issues were framed with reference to suggested issues filed by respondent and therefore, respondent participated in the proceeding without having contended otherwise. Respondent has also alleged illegal appointment of presiding arbitrator by co-ordinate Bench. There is nothing to show respondent had challenged the appointment. Particulars of proceedings, furnished by petitioner, go to show respondent chose not to appear on several occasions. Plea of resort to sub-section (6) in section 29A has been made for the first time today. On query from Court, Mr. Pal conceded that his client would require time to take out application to that effect. In the circumstances Court is convinced that respondent contributed to inability of the Tribunal to conclude the reference. This contention in aid of invoking provision in sub-section (6) in section 29A is rejected. List on 3rd July, 2019 under same heading."
(3.) Today Mr.Pal moves his client's application being GA 1460 of 2019, filed in the meantime. He wants to invoke sub-section (6) of section 29A , Arbitration and Conciliation Act , 1996. He again draws attention to minutes of 9th sitting held on 7th March, 2018, particularly to paragraphs 10 and 11. The paragraphs are reproduced below:- "10. By reason of the aforesaid, and by consent of the parties, the period was extended by 6 months, i.e. till the end of February 2018. 11. As stated above, one of the members of the Arbitral Tribunal, Mr.Mrinmay Kumar Sahu is not present despite having notice (over telephone) of today's sitting. The Learned Advocate for the respondent, Mr. Rasomay Mondal, could not be contacted inasmuch as his mobile phone was found to be switched off." He submits, consent of parties was recorded in absence of respondent. Record of presence in said minutes states name of advocate for respondent. On query from Court, regarding contradictions in the minutes, Mr. Dutta does not have an answer. He, however, submits, respondent did not cooperate in the reference, which is why it could not be concluded. So much so, respondent's share of arbitration proceeding costs also were not paid. He reiterates his prayer for extension of time for the Tribunal to conclude the reference by making and publishing award, including regarding costs of the proceedings. ;