Substitution Of Arbitrator Can't Be Allowed When Petitioner Voluntarily Withdraws From Arbitral Proceedings: Calcutta High Court

The Calcutta High Court bench of Justice Shampa Sarkar has held that an application under Section 15 of the Arbitration and Conciliation Act, 1996 (Arbitration Act), seeking substitution of the arbitrator, cannot be allowed when the petitioner had voluntarily withdrawn from the arbitral proceedings and failed to participate despite being given ample opportunities, especially after a long lapse of time Brief Facts: Disputes arose under a work order containing an arbitration clause under Clause 25, and an officer of State Of West Bengal (Respondent) was appointed as arbitrator. The Arbitrator failed to conduct proceedings diligently. After the Statement of Claim was filed on January 20, 2012, multiple sittings were fixed, but the respondent failed to appear or file a defence. On the respondent's advice, Ashok Kumar Bhuinya (Petitioner) withdrew from the proceedings via letter dated May 2, 2012. Despite the Arbitrator subsequently fixing dates in November 2012 and April 2013, no effective hearings occurred. Consequently, the petitioner has filed the present application seeking substitution of the Arbitrator under section 15 of the Arbitration Act. Contentions: The Petitioner submitted that the respondent assured an amicable settlement if he withdrew from the arbitration proceedings. However, since the claims were not settled, he has approached this Court seeking appointment of a substitute arbitrator. It was further contended that following the 2015 amendment and in light of the bar under Section 12(5) read with Schedules V and VII of the Arbitration Act, the appointed arbitrator has become de jure unable to act, warranting substitution by this Court. Per contra, the Respondent submitted that the Arbitrator had recorded the fact that the petitioner wanted to withdraw from the proceedings and had kept the matter for hearing on this issue. Nothing transpired thereafter, the petitioner maintained inordinate silence. It was also argued that the letters issued by the petitioner will clearly display the petitioner's intention to withdraw from the arbitration proceeding, thereby giving up the claims. Observations: The court noted that the petitioner had clearly expressed his intention to withdraw from the arbitration proceedings, which was duly recorded by the arbitrator. Despite multiple dates being fixed for hearings, the petitioner failed to produce any evidence showing a change in stance or willingness to rejoin the proceedings. It further added that on the contrary, letters annexed to the affidavit in opposition confirm the petitioner's abandonment of the arbitral process. A letter dated May 3, 2012, reveals an internal departmental communication granting an extension for extra work, while a prior letter dated May 2, 2012, sought further extension. Subsequently, on June 6, 2012, the petitioner submitted the final bill. The court further said that the petitioner had intended to withdraw from the arbitral case and had withdrawn the same. He did not take part in the proceedings. He did not take back his letter seeking withdrawal from the proceedings. Based on the above, the court held that section 15 of the Arbitration Act is not applicable in the present case, as this is not a situation where the arbitrator either recused himself or withdrew from office. The grounds for termination of the arbitrator's mandate are not satisfied since the petitioner had voluntarily withdrawn from the proceedings by writing to both the Arbitrator and the respondent. The court concluded that the petitioner cannot seek to resurrect a proceeding that has been inactive for ten years following his withdrawal. There is no indication that the petitioner ever attempted to re-engage with the arbitration or retract his withdrawal. On top of that, the present application, filed after a decade without any explanation for the delay, is not maintainable. The proceedings must be considered no longer alive. Accordingly, the present application was dismissed. Case Title: Ashok Kumar Bhuinya Proprietor Of A.K. Enterprise Vs State Of West Bengal Case Number: AP/344/2022 Judgment Date: 08/04/2025 Mr. Agniswar Bhuinya, Adv. …for petitioner. Ms. Noelle Banerjee, Adv. Mr. Ritoban Sarkar, Adv. Mr. Paritosh Sinha, Adv. Mr. Arindam Mandal, Adv. Ms. Swagata Ghosh, Adv. …for respondent/State. Click here to download Order/Judgement

Substitution Of Arbitrator Can't Be Allowed When Petitioner Voluntarily Withdraws From Arbitral Proceedings: Calcutta High Court

Mohd Malik Chauhan

Tags