TATA SONS PVT LTD (FORMERLY TATA SONS LTD) versus SIVA INDUSTRIES AND HOLDINGS LTD & ORS
[2023] 9 S.C.R. 1268, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
A
B
C
D
E
F
G
H
1268
SUPREME COURT REPORTS
[2023] 9 S.C.R.
[2023] 9 S.C.R. 1268 : 2023 INSC 13
1268
TATA SONS PVT LTD (FORMERLY TATA SONS LTD)
v.
SIVA INDUSTRIES AND HOLDINGS LTD & ORS
(Miscellaneous Application No 2680 of 2019)
In
(Arbitration Case (Civil) No. 38 of 2017)
JANUARY 05, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Arbitration and Conciliation Act, 1996: s. 29A (as amended)
– Time limit for arbitral award – Time limit of 12 months as provided
under the amended s. 29A (1) for passing an arbitral award –
Applicability of, to international commercial arbitrations – Held:
Timeline of twelve months for making an arbitral award is not
applicable to ‘international commercial arbitrations’ – In terms of
the amended provisions of s. 29A, arbitral tribunals in international
commercial arbitrations are only expected to make an endeavor to
complete the proceedings within twelve months from the date of
completion of pleadings and are not bound to abide by the time
limit prescribed for domestic arbitrations – As regards, prospective
or retrospective application of s. 29A, the 2019 Amendment Act does
not contain any provision equivalent to s. 26 of Act 3 of 2016
evincing a legislative intent making the application of the amended
provision prospective – Since s. 29A(1), as amended, is remedial in
nature, it should be applicable to all pending arbitral proceedings
as on the effective date-30 August 2019 – Thus, in the instant case,
the sole
arbitrator to decide upon any further extension of time
beyond the originally stipulated – Sole arbitrator may issue
appropriate procedural directions for extension of time while
endeavoring an expeditious conclusion of the arbitration.
Procedural law: Nature of – Prospective or retrospective
application – Held: Procedural law establishes a mechanism for
determining rights and liabilities of a party and a machinery for
enforcing them – Generally, procedural laws are presumed to be
retrospective, unless there is a clear indication that such was not
A
B
C
D
E
F
G
H
1269
the intention of the legislature, or the procedural law imposes new
obligations qua transactions already concluded or creates new rights
or liabilities.
Allowing the applications, the Court
HELD: 1.1 After the amendment, Section 29A(1) of the
Arbitration and Conciliation Act, 1996 stipulates that the award
“in matters other than international commercial arbitration” shall
be made by the arbitral tribunal within a period of twelve months
from the date of the completion of the pleadings under Section
23(4). The expression “in matters other than an international
commercial arbitration” makes it abundantly clear that the
timeline of twelve months which is stipulated in the substantive
part of Section 29A(1), as amended, does not apply to international
commercial arbitrations. This is further reaffirmed in the proviso
to Section 29A(1) which stipulates that the award in the matter of
an international commercial arbitration “may be made as
expeditiously as possible” and that an “endeavour may be made
to dispose of the matter within a period of 12 months” from the
date of the completion of pleadings. The expression “as
expeditiously as possible” coupled with the expression
“endeavour may be made” demonstrate that the intent of
Parliament is that the period of twelve months for making the
award is not mandatory in the case of an international commercial
arbitration. In an international commercial arbitration, the arbitral
tribunal is required to endeavour, that
is, make an effort to render
the arbitral award within a period of twelve months or in a timely
manner. In a domestic arbitration, Section 29A(1) stipulates a
mandatory period of twelve months for the arbitrator to render
the arbitral award. In contrast, the substantive part of Section
29A(1) clarifies that the period of twelve months would not be
mandatory for an international commercial arbitration. Hence,
post amendment, the time limit of twelve months as prescribed
in Section 29A is applicable to only domestic arbitrations and the
twelve-month period is only directory in nature for an
international commercial arbitration. [Para 25][1279-C-G]
1.2 The Committee chaired by Justice B.N. Srikrishna
indicated that international arbitration institutions had been
TATA SONS PVT LTD (FORMERLY TATA SONS LTD) v. SIVA INDUSTRIES
AND HOLDINGS LTD
A
B
C
D
E
F
G
H
1270
SUPREME COURT REPORTS
[2023] 9 S.C.R.
critical of the setting up of timelines for conducting international
arbitrations. International arbitral institutions with their own
machinery for case management were of the view that they did
not require the monitoring of timelines by the intervention of the
court. The Committee also noted that in other jurisdictions,
timelines for arbitral proceedings are usually agreed by the parties
themselves in accordance with the nature and complexity of the
dispute. The intervention of the court in the extension of timelines
was criticized by arbitral institutions and eventually led to the
formulation of the amended provisions of Section 29A which have
expressly kept international commercial arbitrations outside the
purview of the mandatory timelines provided in Section 29A.
Hence, in terms of the amended provisions of Section 29A,
arbitral tribunals in international commercial arbitrations are only
expected to make an endeavor to complete the proceedings within
twelve months from the date of completion of pleadings and are
not bound to abide by the time limit prescribed for domestic
arbitrations. [Para 29][1282-A-D]
1.3 Procedural law establishes a mechanism for determining
rights and liabilities of a party and a machinery for enforcing them.
Generally, procedural laws are presumed to be retrospective,
unless there is a clear indication that such was not the intention
of the legislature,or the procedural law imposes new
obligations
qua transactions already concluded or creates new rights or
liabilities. [Para 33][1283-G; 1284-A]
1.4 The 2019 Amendment Act does not contain any
provision equivalent to Section 26 of Act 3 of 2016 evincing a
legislative intent making the application of the amended provision
prospective. The amended provisions of Section 29A, in terms
of which the arbitral tribunal has to endeavour to dispose of the
proceedings in an international commercial arbitration as
expeditiously as possible within a period of twelve months from
the completion of the pleadings are remedial in nature. The
amended provision has excepted international commercial
arbitrations from the mandate of the twelve month timeline which
governs domestic arbitrations. The amendment is intended to
meet the criticism over the timeline in its application to
international commercial arbitrations. The amendment is remedial
A
B
C
D
E
F
G
H
1271
in that it carves out international commercial arbitrations from
the rigour of the timeline of six months. This lies within the domain
of the arbitrator and is outside the purview of judicial intervention.
The removal of the mandatory time limit for making an arbitral
award in the case of an international commercial arbitration does
not confer any rights or liabilities on any party. Since Section
29A(1), as amended, is remedial in nature, it should be applicable
to all pending arbitral proceedings as on the effective date i.e.,
30 August 2019. [Para 34][1284-B-E]
1.5 Consistent with the amended provisions of Section 29A,
the sole arbitrator in the instant case, would be acting within his
domain and jurisdiction to decide upon any further extension of
time beyond what is originally stipulated at the meeting which
was held on 21 March 2018. The sole arbitrator may issue
appropriate procedural directions for extension of time while at
the same time endeavoring an expeditious conclusion of the
arbitration. [Para 37][1285-D]
Board of Control for Cricket in India v. Kochi Cricket
Pvt. Ltd (2018) 6 SCC 287 : [2018] 2 SCR 829;
Thirumalai Chemicals Ltd v. Union of India (2011) 6
SCC 739 : [2011] 4 SCR 838; Jose Da Costa and Anr.
v. Bascora Sadasiva Sinai Narcornim, (1976) 2 SCC
917; Gurbachan Singh v. Satpal Singh (1990) 1 SCC
445 : [1989] 1 Suppl. SCR 292; Rajendra Kumar v.
Kalyan (D) by Lrs, (2000) 8 SCC 99 : [2000] 2 Suppl.
SCR 114; Hitendra Vishnu Thakur v.
State of
Maharashtra, (1994) 4 SCC 602 : [1994] 1 Suppl. SCR
360; Shapoorji Pallonji & Co. Pvt. Ltd. Vs Jindal India
Thermal Power Ltd. OMP (Misc) (Comm.) No 512/
2019; ONGC Petro Additions Ltd. vs Ferns Construction
Co. Inc. OMP (Misc) (Comm) 256/2019; M/s SARA
International Pvt. Ltd. Vs Southern Eastern Railways
& Anr. ARBP No. 28 of 2020; MBL Infrastructures Ltd
v. Rites Ltd. OMP (Misc) (Comm) 56/2020, as decided
on 10 February 2020 – referred to.
Case Law Reference
[2018] 2 SCR 829
referred to
Para 32
TATA SONS PVT LTD (FORMERLY TATA SONS LTD) v. SIVA INDUSTRIES
AND HOLDINGS LTD
A
B
C
D
E
F
G
H
1272
SUPREME COURT REPORTS
[2023] 9 S.C.R.
[2011] 4 SCR 838
referred to
Para 33
(1976) 2 SCC 917
referred to
Para 33
[1989] 1 Suppl. SCR 292
referred to
Para 33
[2000] 2 Suppl. SCR 114
referred to
Para 33
[1994] 1 Suppl. SCR 360
referred to
Para 33
CIVIL APPELLATE JURISDICTION : Miscellaneous
Application No.2680 of 2019 in Arbitration Case (Civil) No.38 of 2017.
From the Judgment and Order dated 17.01.2018 of the Supreme
Court of India in ARBIT CASE (C) No.38 of 2017.
Jaideep Gupta, Sr. Adv., Mahfooz Ahsan Nazki, Kunal Chatterjee,
Ms. Rajeswari Mukherjee, Ms. Niti Richhariya, Ms. Ria Dalwani, Polanki
Gowtham, Advs. for the Petitioner.
Ankur Kashyap, Ajith S Ranganathan, Rohit Rajershi, Aman Bajaj,
Merusagar Samantaray, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR. DHANAJAYA Y CHANDRACHUD, CJI
1. The applicant Tata Sons Pvt Ltd is a company incorporated
under the Indian Companies Act 1913. The first respondent, Siva
Industries and Holdings Ltd is a company incorporated under the
Companies Act 1956 with a registered office at Chennai. The second
respondent, C Sivasankaran, who is the promoter of the first respondent
is a resident of Seychelles.
2. The applicant, the first respondent and Tata Tele Services Ltd1
executed a share subscription agreement on 24 February 2006 for the
issuance and allotment of shares of  TTSL to Siva Industries in
accordance with its terms and conditions.
3. Subsequently, a share subscription agreement dated
12
November 2008 was entered into between NTT Docomo Inc,2 a company
incorporated in Japan, the applicant and TTSL. In terms of the agreement,
Docomo sought to acquire 26% of the equity share holding of TTSL
through a combination of primary shares (fresh shares issued and allotted
by TTSL) and secondary shares (shares held by certain existing
shareholders of TTSL).
1 “TTSL”
2 “Docomo”
A
B
C
D
E
F
G
H
1273
4. The first respondent was an existing shareholder of TTSL and
was invited to participate in the sale of secondary shares to Docomo.
Accordingly, Docomo and the first respondent executed a secondary
share purchase agreement dated 3 March 2009 in terms of which Docomo
acquired 20.740 million equity shares of TTSL from the first respondent.
The applicant, TTSL and Docomo executed a Shareholders’ Agreement
dated 25 March 2009 to record the terms and conditions of the
understanding between the parties regarding the rights, obligations and
duties with respect to Docomo’s ownership of shares of TTSL.
Thereafter, the applicant, TTSL and the respondents executed an Inter
se agreement. The agreement, inter alia, obliged the respondents to
purchase the TTSL shares on a pro-rata basis in the event Docomo
exercised its sale option under the Shareholder’s Agreement.
5. Docomo addressed a sale notice on 7 July 2014 to the applicant
while invoking its sale option under clause 5.7 of the Shareholder’s
Agreement dated 25 March 2009.
6. Disputes having arisen between the applicant and Docomo, the
latter invoked arbitration against the applicant under the Rules of the
London Council for International Arbitration. A three-member Tribunal
made its award dated 22 June 2016, consequent upon which the applicant
was called upon to make payment to Docomo and to acquire the shares
of TTSL which were put by Docomo.
7. Thereupon, the applicant called upon the first respondent under
the Inter se agreement to proportionately pay for and acquire back its
shareholdings in TTSL from Docomo. Under the terms of the Inter se
agreement, the second respondent, as promoter of the first respondent
company, had agreed to be liable to the applicant in the event that the
first respondent failed to fulfill its obligation.
8. The applicant issued a notice of arbitration on 15 June 2017 to
the first respondent and to the second respondent (a foreign party, being
a resident of Seychelles) under Clause 10 of the Inter se agreement and
nominated an arbitrator. Clause 10 states that the Arbitration shall be at
Mumbai and Mumbai Courts have exclusive jurisdiction. The number of
arbitrators is fixed as three by the Clause.
9. The respondents did not appoint their nominee arbitrator despite
the service of the arbitration notice. The applicant filed a petition before
this Court under Section 11(6) of the Arbitration and Conciliation Act
19963 for the constitution of an arbitral tribunal in an international
3 “Arbitration Act”
TATA SONS PVT LTD (FORMERLY TATA SONS LTD) v. SIVA INDUSTRIES
AND HOLDINGS LTD [DR. DHANAJAYA Y CHANDRACHUD, CJI]
A
B
C
D
E
F
G
H
1274
SUPREME COURT REPORTS
[2023] 9 S.C.R.
commercial arbitration. The Supreme Court had exclusive jurisdiction to
entertain the arbitration petition since the proposed arbitration between
the applicant and the respondents, of whom the second respondent is a
foreign party, was an international commercial arbitration in terms of
Section 2(1)(f) of the Arbitration Act.
10. By an order dated 17 January 2018 of this Court in proceedings
initiated under Section 11(6) of the Arbitration Act, Mr Justice S N Variava
was appointed as the sole arbitrator with the consent of the parties.
11. The arbitrator entered upon the reference on 14 February
2018. On 21 March 2018, a preliminary meeting was held between the
parties and the arbitrator at which the parties agreed to a six months
extension, if the arbitral proceedings could not be completed within a
period of twelve months commencing from the date the arbitral tribunal
entered reference. The time to deliver the award in the proceedings
before the arbitral tribunal stood extended until 14 August 2019 since the
parties had consented to an extension of six months.
12. The applicant filed the statement of claim on 13 April 2018.
The first respondent filed the statement of defense on 21 June 2018. On
30 July 2018, the arbitral tribunal disposed of applications under Sections
16 and 17 filed by the first respondent and the applicant respectively.
Between 15 and 25 October 2018, the examination of the applicant and
the
first respondent’s witnesses took place before the arbitral tribunal.
13. During the pendency of the arbitral proceedings, IDBI Bank
Ltd initiated insolvency proceedings against the first respondent under
the Insolvency and Bankruptcy Code 2016.4 By an order dated 5 July
2019, the National Company Law Tribunal, Chennai initiated the Corporate
Insolvency Resolution Process5 under the IBC and placed a moratorium
on all proceedings against the first respondent, including arbitral
proceedings.
14. The original period of one year and the extension of six months
which was agreed upon by the parties expired on 14 August 2019. On
14 December 2019, a Miscellaneous Application6 was filed by the
applicant before this Court seeking an extension of the mandate of the
tribunal. The applicant sought an extension of the mandate of the arbitral
tribunal from 14 August 2019 for a period of six months after the date on
which the moratorium imposed under the IBC on 5 July 2019 against the
first respondent would stand vacated.
4 “IBC”
5 “CIRP”
6 MA No. 2680 of 2019
A
B
C
D
E
F
G
H
1275
15. The hearing of the MA was adjourned by an order of this
Court dated 7 January 2020 in view of the circumstances at that time.
16. In the meantime, on 3 June 2022, the first respondent has
been freed from the rigours of the CIRP in pursuance of an order passed
by this Court. Accordingly, there is no longer a moratorium over
proceedings against the first respondent, with effect from 3 June 2022.
17. An interlocutory application7 has been filed on behalf of the
applicant in the MA in view of two developments:
a.
The first respondent, as a consequence of the order of this
Court dated 3 June 2022, has been freed from the rigours
of the CIRP; and
b.
As a result of the amendment of Section 29A of the
Arbitration and Conciliation Act, 1996, with effect from 30
August 2019, the arbitration proceedings before the sole
arbitrator should, in the submission of the applicant, be
allowed to automatically continue in view of the amendment
of the statute.
18. For convenience of reference, the reliefs which have been
sought in the IA are extracted below:
“a. Hold that the Arbitration Proceedings between the parties
herein, presided over by the Ld. Sole Arbitrator (Retd.) Hon’ble
Mr. Justice S.N. Variava, may be allowed to continue without any
need for an extension of the term of the Ld. Sole Arbitrator; or
b.  Alternatively, in the event this Hon’ble Court is of the opinion
that the amended Section 29A (following the 2019 Amendment)
is inapplicable to the present
Arbitration Proceedings, allow the
extension of the time limit within which Ld. Sole Arbitrator (Retd.)
Hon’ble Mr. Justice S.N. Variava is to render an award in the
Arbitration Proceedings between the parties by a period of 1 year.”
19. This Court issued notice on the IA on 25 November 2022.
20. The provisions of Section 29A were introduced into the
Arbitration Act with effect from 23 October 2015 by Act 3 of 20168.
Section 29A was substituted by Act 33 of 20199 with effect from 30
August 2019. The provisions of Section 29A as originally inserted and as
they stand after the amendment of 2019 are tabulated below:
7 IA No. 155371 of 2022
8 2015 Amendment Act
9 2019 Amendment Act
TATA SONS PVT LTD (FORMERLY TATA SONS LTD) v. SIVA INDUSTRIES
AND HOLDINGS LTD [DR. DHANAJAYA Y CHANDRACHUD, CJI]

A
B
C
D
E
F
G
H
1276
SUPREME COURT REPORTS
[2023] 9 S.C.R.
SECTION 29-A PRE AND POST 2019 AMENDMENT

A
B
C
D
E
F
G
H
1277
TATA SONS PVT LTD (FORMERLY TATA SONS LTD) v. SIVA INDUSTRIES
AND HOLDINGS LTD [DR. DHANAJAYA Y CHANDRACHUD, CJI]
A
B
C
D
E
F
G
H
1278
SUPREME COURT REPORTS
[2023] 9 S.C.R.
21. We have heard Mr Jaideep Gupta, senior counsel appearing
on behalf of the applicant and Mr Ankur Kashyap, counsel appearing on
behalf of the second respondent.
22. The submission which has been urged on behalf of the applicant
is that as a result of the amendment of Section 29A by Act 33 of 2019,
the period of 12 months prescribed for making an award from the date
of the completion of the pleadings has ceased to apply to an international
commercial arbitration. Hence, it has been urged that the amendment
being of a procedural nature, the amended provision would apply to the
arbitral proceedings in the present case following the appointment of
Justice S N Variava on 17 January 2018 and pursuant to the arbitrator
entering upon reference on 14 February 2018. Alternatively, the applicant
has urged that in the event that this Court were to hold that the amended
provisions of Section 29A are inapplicable to the present arbitration, a
further extension of time may be granted to the sole arbitrator to complete
the arbitral proceedings.
23. The first respondent has not entered appearance in these
proceedings. The second respondent, who is contesting the proceedings
as a guarantor, has urged that the amendment of Section 29A by Act 33
of 2019 would not lead to the conclusion that an international commercial
arbitration lies outside the purview of the provision. The second respondent
has submitted that reading the
provisions of Section 29A in the manner
in which the applicant seeks to read them would result in a situation
where there would be no timeline under the statute for an international
commercial arbitration. Where an international commercial arbitration
is governed by the Rules of an arbitral institution, such rules would
structure the conduct of the arbitration. The second respondent has
submitted that it was not the intention of the legislature that in a case
which is not governed by an arbitral institution, the court would have no
control over the time taken in the course of the arbitral proceedings
leaving the matter entirely within the discretion of the arbitral forum in a
situation such as the present, where the arbitral proceeding is governed
by Indian Law and has a seat within the country.
24. The provisions of Section 29A, as originally introduced into
the statute, mandated that all awards shall be made within a period of
twelve months from the date on which the arbitral tribunal enters upon
the reference. The explanation clarified when the arbitral tribunal would
be deemed to have entered upon the reference, namely, the date on
A
B
C
D
E
F
G
H
1279
which the arbitrator has received written notice of the appointment. The
mandatory nature of the provisions of Section 29A(1) and their application
to all arbitrations conducted under the Act, domestic or international
commercial, was evident from the use of the word “shall”. In terms of
Section 29A(4), in case the arbitral award was not rendered within the
twelve or eighteen month period as the case may be, the mandate of the
arbitrator(s) would stand terminated, unless on an application made by
any of the parties, the court extended time on sufficient cause being
shown.
25. After the amendment, Section 29A(1) stipulates that the award
“in matters other than international commercial arbitration” shall
be made by the arbitral tribunal within a period of twelve months from
the date of the completion of the pleadings under Section 23(4).10 The
expression “in matters other than an international commercial
arbitration” makes it abundantly clear that the timeline of twelve months
which is stipulated in the substantive part of Section 29A(1), as amended,
does not apply to international commercial arbitrations. This is further
reaffirmed in the proviso to Section 29A(1) which stipulates that the
award in the matter of an international commercial arbitration “may be
made as expeditiously as possible” and that an “endeavour may be
made to dispose of the matter within a period of 12 months” from
the date of the completion of pleadings. The expression “as
expeditiously
as possible” coupled with the expression “endeavour may be made”
demonstrate that the intent of Parliament is that the period of twelve
months for making the award is not mandatory in the case of an
international commercial arbitration. In an international commercial
arbitration, the arbitral tribunal is required to endeavour, that is, make an
effort to render the arbitral award within a period of twelve months or in
a timely manner. In a domestic arbitration, Section 29A(1) stipulates a
mandatory period of twelve months for the arbitrator to render the arbitral
award. In contrast, the substantive part of Section 29A(1) clarifies that
the period of twelve months would not be mandatory for an international
commercial arbitration. Hence, post amendment, the time limit of twelve
months as prescribed in Section 29A is applicable to only domestic
arbitrations and the twelve-month period is only directory in nature for
an international commercial arbitration.
10 Section 23(4) of the Arbitration Act, as inserted by Act 33 of 2019, provides that
“The statement of claim and defence under this section shall be completed within a
period of six months from the date the arbitrator or all the arbitrators, as the case may
be, received notice, in writing of their appointment.”
TATA SONS PVT LTD (FORMERLY TATA SONS LTD) v. SIVA INDUSTRIES
AND HOLDINGS LTD [DR. DHANAJAYA Y CHANDRACHUD, CJI]
A
B
C
D
E
F
G
H
1280
SUPREME COURT REPORTS
[2023] 9 S.C.R.
26. Sub-section (3) of Section 29A empowers parties, by consent,
to extend the period specified in sub-section (1) for making the award
by a further period not exceeding six months. Thereafter, if the award is
not made within the period which is specified in sub-section (1) or the
extended period specified in sub-section (3), the mandate of the arbitrator
shall terminate unless the court has extended the period either prior to or
after the expiry of the period so specified. In other words, the timeline of
twelve months for making the award (in matters other than
international commercial arbitration), is qualified by the consensual
entrustment to the parties under sub-section (3) to extend the period by
six months after which the court is empowered in terms of sub-section
(4) to extend the period for making the award. The submission of the
second respondent is that the provisions of sub-section (3) and sub-
section (4) must also apply to an international commercial arbitration.
This would merit close scrutiny. The legislature has not expressly
excluded the applicability of sub-sections (3) and (4) of Section 29A to
an international commercial arbitration. But, at the same time, it must be
noticed that the rationale underlying sub-section (3) is to ensure that
despite the stipulation of twelve months for the making of an arbitral
award in the domestic context, parties may by consent agree to an
extension of time by a
further period of six months. Such an extension of
six months is envisaged in the case of a domestic arbitration since there
is a mandate that the award shall be made within a period of twelve
months. A further extension has, however, been entrusted to the court in
terms of sub-section (4) of Section 29A. However, insofar as an
international commercial arbitration is concerned, the statutory regime
is clear by the substantive part of sub-section 1 of Section 29A in terms
of which the timeline of twelve months for making an arbitral award is
not applicable to it. In an international commercial arbitration, the
legislature has only indicated that the award should be made as
expeditiously as possible and that an endeavour may be made to dispose
of the matter within a period of twelve months from the completion of
pleadings.
27. The introduction of amended Section 29A finds its genesis in
the report dated 30 July 2017 of the Committee chaired by Justice B N
Srikrishna. The ‘High Level Committee’, as it is described, was set up
to review the “institutionalization of (the) arbitration mechanism” in India.
The report specifically elaborates upon the reason for the exclusion of
international commercial arbitrations from the ambit of the mandatory
timeline of twelve months stipulated in the context of a domestic arbitration.
The report of the Committee records:
A
B
C
D
E
F
G
H
1281
“In fact, one of the provisions of the ACA — section 29A —
which was inserted by the 2015 Amendment Act, is perceived to
have made arbitral institutions wary of arbitrations in India. Section
29A provides for strict timelines for completion of arbitration
proceedings. This has been criticised as unduly restrictive of the
conduct of arbitrations by arbitral institutions which provide for
timelines for different stages of the arbitration proceedings.”
“The Committee notes that international arbitral institutions have
strongly criticised the setting of timelines for conducting international
commercial arbitrations. These institutions are of the view that
monitoring the conduct of the arbitral proceedings is best left to
the arbitral institutions. Institutions have their own machinery for
case management and do not require monitoring by the court.
With respect to domestic arbitrations, the general opinion of
arbitrators is that the timelines fixed for conducting domestic
arbitrations under section 29A should take effect post completion
of pleadings.”
28. The recommendations of the Committee are extracted below:
“1. A new sub-section may be inserted in section 29A limiting
the applicability of the section to domestic arbitrations only.
International commercial arbitrations may be left outside
the purview of the timelines provided in Section 29A.
2. Section 29A(1) may be amended such that the time in section
29A(1) starts to run post completion of pleadings.
Further, a time
period of 6 months may be provided for submission of pleadings.
3. Section 29A(4) may be amended to provide that if an application
under Section 29A(5) is filed before a court, the mandate of the
arbitral tribunal continues till the application is disposed.
4. Section 29A(9) may be amended to add if the application is not
disposed of within the period mentioned therein, it is deemed to be
granted.
5. A new sub-section should be inserted in Section 29A providing
that where the court seeks to reduce the fees of the arbitrator(s),
sufficient opportunity should be given to such arbitrator(s) to be
heard.”
(emphasis supplied)
TATA SONS PVT LTD (FORMERLY TATA SONS LTD) v. SIVA INDUSTRIES
AND HOLDINGS LTD [DR. DHANAJAYA Y CHANDRACHUD, CJI]
A
B
C
D
E
F
G
H
1282
SUPREME COURT REPORTS
[2023] 9 S.C.R.
29. The Committee indicated that international arbitration
institutions had been critical of the setting up of timelines for conducting
international arbitrations. International arbitral institutions with their own
machinery for case management were of the view that they did not
require the monitoring of timelines by the intervention of the court. The
Committee also noted that in other jurisdictions, timelines for arbitral
proceedings are usually agreed by the parties themselves in accordance
with the nature and complexity of the dispute. The intervention of the
court in the extension of timelines was criticized by arbitral institutions
and eventually led to the formulation of the amended provisions of Section
29A which have expressly kept international commercial arbitrations
outside the purview of the mandatory timelines provided in Section 29A.
Hence, in terms of the amended provisions of Section 29A, arbitral
tribunals in international commercial arbitrations are only expected to
make an endeavor to complete the proceedings within twelve months
from the date of completion of pleadings and are not bound to abide by
the time limit prescribed for domestic arbitrations.
30. Having clarified that the 2019 Amendment Act has excluded
international commercial arbitrations from the statutorily prescribed
mandatory time limits, the question arises whether the amended Section
29A would apply prospectively or
retrospectively.
31. The provisions of Section 29A, as introduced by Act 3 of
2016, were prospective in nature by virtue of Section 26 of the 2015
Amendment Act. In terms of Section 26, Section 29A was introduced
with effect from 23 October 2015 and applied to all arbitration
proceedings that commenced on or after 23 October 2015.Section 26 of
the 2015 Amendment Act read as follows:
“26. Nothing contained in this Act shall apply to the arbitral
proceedings commenced, in accordance with the provisions of
Section 21 of the principal Act, before the commencement of this
Act unless the parties otherwise agree but this Act shall apply in
relation to arbitral proceedings commenced on or after the date
of commencement of this Act.”
32. In Board of Control for Cricket in India v. Kochi Cricket
Pvt. Ltd,11 a two Judge Bench of this Court while dealing with the
construction and applicability of Section 26 of the 2015 Amendment Act
in relation to arbitration proceedings and / or legal proceedings in
11 (2018) 6 SCC 287
A
B
C
D
E
F
G
H
1283
connection with such arbitration proceedings, inter alia, observed in a
footnote that Section 29A was procedural in nature. However, this Court
stated that Section 29A created new obligations in respect of a proceeding
which had already commenced since it laid down a strict timeline for
rendering an arbitral award for the first time in the framework of the
Arbitration Act (emphasis supplied). This Court clarified:
“Section 29A of the Amendment Act provides for time limits within
which an arbitral award is to be made. In Hitendra Vishnu Thakur
v. State of Maharashtra (1994) 4 SCC 602 at 633, this Court
stated:
“(iii) Every litigant has a vested right in substantive law but no
such right exists in procedural law.
(iv) A procedural statute should not generally speaking be
applied retrospectively where the result would be to create
new disabilities or obligations or to impose new duties in respect
of transactions already accomplished.
(v) A statute which not only changes the procedure but also
creates new rights and liabilities shall be construed to be
prospective in operation, unless otherwise provided, either
expressly or by necessary implication.”
It is, inter alia, because timelines for the making of an arbitral
award have been laid down for the first time in Section 29A of the
Amendment Act that parties were given the option to adopt such
timelines which, though procedural in nature, create new obligations
in respect of a proceeding already begun under
the unamended
Act. This is, of course, only one example of why parties may
otherwise agree and apply the new procedure laid down by the
Amendment Act to arbitral proceedings that have commenced
before it came into force.”
33. Procedural law establishes a mechanism for determining rights
and liabilities of a party and a machinery for enforcing them.12 Generally,
procedural laws are presumed to be retrospective, unless there is a clear
indication that such was not the intention of the legislature,13 or the
12 Thirumalai Chemicals Ltd v. Union of India (2011) 6 SCC 739
13 Jose Da Costa and Anr. v. Bascora Sadasiva Sinai Narcornim, (1976) 2 SCC 917;
Gurbachan Singh v. Satpal Singh (1990) 1 SCC 445; Rajendra Kumar v. Kalyan (D)
by Lrs, (2000) 8 SCC 99
TATA SONS PVT LTD (FORMERLY TATA SONS LTD) v. SIVA INDUSTRIES
AND HOLDINGS LTD [DR. DHANAJAYA Y CHANDRACHUD, CJI]
A
B
C
D
E
F
G
H
1284
SUPREME COURT REPORTS
[2023] 9 S.C.R.
procedural law imposes new obligations qua transactions already
concluded or creates new rights or liabilities.14
34. The 2019 Amendment Act does not contain any provision
equivalent to Section 26 of Act 3 of 2016 evincing a legislative intent
making the application of the amended provision prospective. The
amended provisions of Section 29A, in terms of which the arbitral tribunal
has to endeavour to dispose of the proceedings in an international
commercial arbitration as expeditiously as possible within a period of
twelve months from the completion of the pleadings are remedial in
nature. The amended provision has excepted international commercial
arbitrations from the mandate of the twelve-month timeline which governs
domestic arbitrations. The amendment is intended to meet the criticism
over the timeline in its application to international commercial arbitrations.
The amendment is remedial in that it carves out international commercial
arbitrations from the rigour of the timeline of six months. This lies within
the domain of the arbitrator and is outside the purview of judicial
intervention. The removal of the mandatory time limit for making an
arbitral award in the case of an international commercial arbitration does
not confer any rights or liabilities on any party. Since Section 29A(1), as
amended, is remedial in nature, it should be applicable to all pending
arbitral proceedings as on the effective date i.e.,
30 August 2019.
35. We may notice certain judgments of the High Courts on the
provisions of Section 29A which have been adverted to during the course
of oral submissions. Those decisions are:
i.
A decision of a Single Judge of the High Court of Delhi
dated 23 January 2020 in Shapoorji Pallonji & Co. Pvt.
Ltd. Vs Jindal India Thermal Power Ltd.;15
ii.
A decision of a Single Judge of the Delhi High Court dated
21 July 2020 in ONGC Petro Additions Ltd. vs Ferns
Construction Co. Inc.;16 and
iii.
The decision of the Chief Justice of the High Court of
Judicature for Orissa at Cuttack dated 11 December 2020
in M/s SARA International Pvt. Ltd. Vs Southern Eastern
Railways & Anr.17
14 Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602
15 OMP (Misc) (Comm.) No 512/2019
16 OMP (Misc) (Comm) 256/2019
17 ARBP No. 28 of 2020
A
B
C
D
E
F
G
H
1285
36. In Shapoorji Pallonji, the Delhi High Court had held that
amended Section 29A(1) of the Arbitration and Conciliation Act, being
procedural law, would apply to the pending arbitrations as on the date of
the amendment. However, a coordinate bench in MBL Infrastructures
Ltd v. Rites Ltd.18 held that the amended Section 29A would be
prospective in nature, without referring to the earlier order in Shapoorji
Pallonji. Finally, the Delhi High Court in ONGC Petro Additions settled
the controversy and reiterated the position of law as laid down in Shapoorji
Pallonji. The Court, inter alia, stated that Section 29A(1) shall be
applicable to all pending arbitrations seated in India as on August 30,
2019 and commenced after October 23, 2015, and there is no strict time
line prescribed to the proceedings which are in nature of international
commercial arbitration as defined under the Act, seated in India.
37. Consistent with the amended provisions of Section 29A, the
sole arbitrator in the present case would be acting within his domain and
jurisdiction to decide upon any further extension of time beyond what is
originally stipulated at the meeting which was held on 21 March 2018.
The sole arbitrator may issue appropriate procedural directions for
extension of time while at the same time endeavoring an expeditious
conclusion of the arbitration.
38. The Miscellaneous Application and the Interlocutory
Application shall accordingly stand allowed in the above terms.
39. Pending applications, if any, stand disposed of.
Nidhi Jain
Applications allowed.
(Assisted by : Rakhi, LCRA)
18 OMP (Misc) (Comm) 56/2020, as decided on 10 February 2020
TATA SONS PVT LTD (FORMERLY TATA SONS LTD) v. SIVA INDUSTRIES
AND HOLDINGS LTD [DR. DHANAJAYA Y CHANDRACHUD, CJI]