# B.S.N.L. & Anr v. Chaurasiya Entp. & Ors

- **Citation:** (2024) 10 ILRA 434
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-22
- **Bench:** Arun Bhansali, C.J. Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/b-s-n-l-anr-v-chaurasiya-entp-ors-51186
- **Pages:** 17

## Headnote

A. Civil Law - Arbitration and Conciliation
Act,1996-Section 37-BSNL floated tenders
in 2015 for laying Optical Fibre Cable in
District
Bhadoi-dispute
arose
due
to
pending
payments,
and
Chaurasiya
Enterprises
sought
arbitration-Sole
Arbitrator passed awards in favor of
Chaurasiya
Enterprises-BSNL
filed
objections u/s 34 which were rejected by
the
Commercial
court
Varanasi-BSNL
appealed under section 37-The court held
that
BSNL's
casual
approach,
non-
10 All. B.S.N.L. & Anr. Vs. Chaurasiya Entp. & Ors.
435
appearance despite being informed via
calls, WhatsApp and registered post-The
compliance of the section 23(4) is not
mandatory as non-compliance does not
automatically terminate the mandate-the
Claim was filed within the prescribed
time, excluding the COVID-19 period as
per Supreme Court orders-BSNL failed to
justify its absence or provide adequate
grounds for delay-Hence, the Court upheld
the Commercial court's decision rejecting
BSNL's objections u/s 34 and dismissed all
the appeals.(Para 1 to 30)

The appeals are dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,712 of 47,462. This is a partial read: ask again with offset=39712 for what follows._

434 INDIAN LAW REPORTS ALLAHABAD SERIES
and omnibus allegations cannot
manifest in a situation where the
relatives
of
the
complainant's
husband are forced to undergo
trial. It has been highlighted by this
Court in varied instances, that a
criminal
trial
leading
to
an
eventual acquittal also inflicts
severe scars upon the accused, and
such an exercise must, therefore, be
discouraged."
(Emphasis supplied)

14. In Achin Gupta (supra), the
Apex Court has observed as under:

"25. If a person is made to
face a criminal trial on some
general and sweeping allegations
without bringing on record any
specific instances of criminal
conduct, it is nothing but abuse of
the process of the court. The court
owes
a
duty
to
subject
the
allegations
levelled
in
the
complaint to a thorough scrutiny to
find out, prima facie, whether there
is any grain of truth in the
allegations or whether they are
made only with the sole object of
involving certain individuals in a
criminal charge, more particularly
when a prosecution arises from a
matrimonial dispute."
(Emphasis supplied)

15. Therefore, in the considered
opinion of this Court the instant F.I.R. is
nothing but a concocted story of demand of
dowry by making general and vague
allegations against the applicants herein.
Therefore, in view of the judgement of
Apex Court in Geeta Mehrotra (supra),
Achin
Gupta
(supra),
as
well
as
Kahkashan Kausar (supra), the instant
application
is
allowed
and
the
cognizance/summoning
order
dated
30.05.2019 as well as the charge-sheet
dated 20.04.2019 and entire proceedings of
Case No. 395 of 2019 arising out of the
Case Crime No. 83 of 2018 under Sections
498, 323, 504, 506, 509 I.P.C. and 3/4 D.P.
Act, Police Station- Mahila Thana, District-
Gautam
Buddha
Nagar,
are
hereby
quashed.
----------
(2024) 10 ILRA 434
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2024

BEFORE

THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE VIKAS BUDHWAR, J.

Appeal u/s 37 of Arbitration & Conciliation Act
1996 No. 305 of 2024
alongwith
Appeal u/s 37 of Arbitration & Conciliation Act
1996 Nos. 306 of 2024, 307 of 2024, 308 of
2024 & 310 of 2024

B.S.N.L. & Anr. ...Appellants
Versus
Chaurasiya Entp. & Ors. ...Respondents

Counsel for the Appellants:
B.K. Singh Raghuvanshi

Counsel for the Respondent:
Daya Shankar, Mahendra Kumar Mishra

A. Civil Law - Arbitration and Conciliation
Act,1996-Section 37-BSNL floated tenders
in 2015 for laying Optical Fibre Cable in
District
Bhadoi-dispute
arose
due
to
pending
payments,
and
Chaurasiya
Enterprises
sought
arbitration-Sole
Arbitrator passed awards in favor of
Chaurasiya
Enterprises-BSNL
filed
objections u/s 34 which were rejected by
the
Commercial
court
Varanasi-BSNL
appealed under section 37-The court held
that
BSNL's
casual
approach,
non-
10 All. B.S.N.L. & Anr. Vs. Chaurasiya Entp. & Ors.
435
appearance despite being informed via
calls, WhatsApp and registered post-The
compliance of the section 23(4) is not
mandatory as non-compliance does not
automatically terminate the mandate-the
Claim was filed within the prescribed
time, excluding the COVID-19 period as
per Supreme Court orders-BSNL failed to
justify its absence or provide adequate
grounds for delay-Hence, the Court upheld
the Commercial court's decision rejecting
BSNL's objections u/s 34 and dismissed all
the appeals.(Para 1 to 30)

The appeals are dismissed. (E-6)

List of Cases cited:

1. Yashovardhan Sinha HUF & anr. Vs Satyatej
Vyapaar Pvt. Ltd., C.O. No. 4125 of 2023

2. Lachmi Narain Vs U.O.I. (1976) 2 SCC 953

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Challenge in these appeals under
Section
37
of
the
Arbitration
and
Conciliation Act, 1996 (in short 'A & C Act
1996') are the orders of the Commercial
Court rejecting the objections preferred by
the Bharat Sanchar Nigam Ltd. (in short
'BSNL') under Section 34 of the A & C
Act, 1996 upholding the awards passed in
favour of the Chaurasiya Enterprises (in
short 'claimant').

2. Since common question of facts
and law are involved in all the captioned
appeals, thus, they are being decided by a
common order.

Facts

3. Briefly stated facts, sans
unnecessary details are that BSNL in the
year
2015
in
order
to
lay
down
underground Optical Fibre Cable in District
Bhadoi floated tenders, seeking bids from
the prospective bidders. The claimant is
stated to have been issued work orders,
however,
owing
to
certain
disputes/differences which arose between
the parties in respect of different contracts,
notices came to be issued by the claimants
to the BSNL on 20.03.2019 to clear the
outstanding dues within a period of 30 days
and, in case, the said request is not acceded,
then to appoint an arbitrator in term of
Section 12(5) of the 7th Schedule of the A
& C Act, 1996. A reminder was also sent by
the claimant to the BSNL on 08.05.2019
and since nothing happened, the claimant
approached this Court while filing an
arbitration application purported to be
under Section 11(4) of the A & C Act, 1996
for appointment of an arbitrator.

4. Sri Brahmdeo Mishra, a retired
District Judge was appointed as the sole
arbitrator. The arbitrator entered into the
reference on 08.11.2019 and thereafter
proceeded to pass awards in favour of the
claimant.

5.

Questioning
the
awards,
objections under Section 34 of the A & C
Act, 1996 came to be filed by the BSNL
which was rejected by the Commercial
Court, Varanasi.

6. Assailing the said orders, the
present arbitration appeals have been
preferred.

7. For the sake of clarity, the
descriptions
and
the
details
of
the
proceedings which are subject matter of the
present appeal are being recapitulated in
the form of a tabular chart:-

A
B
C
D
E
F
Desc
riptio
Arbi
trati
Date
of
Qua
ntu
Nu
mbe
Date
of
436 INDIAN LAW REPORTS ALLAHABAD SERIES
n of
Appe
als
on
Case
No.
Awa
rd
m
of
mon
etar
y
ben
efits
awa
rded
to
the
clai
man
t (in
INR
)
r of
obje
ctio
ns
und
er
Sect
ion
34
of
the
A &
C
Act,
199
6
the
orde
r of
rejec
tion
of
the
appli
catio
n
unde
r
Secti
on
34 of
the A
& C
Act,
1996
Lead
ing
3 of
2019
05.0
4.20
21
83,2
3,41
6
13
of
202
1
06.0
5.20
24
Conn
ected
C1
6 of
2019
04.0
5.20
21
15,2
4,93
1
14
of
202
1
06.0
5.20
24
Conn
ected
C2
5 of
2019
03.0
5.20
21
6,01
,516
15
of
202
1
06.0
5.20
24
Conn
ected
C3
4 of
2019
03.0
5.20
21
13,9
6,46
5
12
of
202
1
04.0
5.20
24
Conn
ected
C4
7 of
2019
04.0
5.20
21
5,04
,568
11
of
202
1
04.0
5.20
24

Arguments of counsel for BSNL
(Appellants)

8. Sri B.K. Singh Raghuvanshi,
learned counsel for the BSNL has sought to
argue that the orders of the Commercial
Court
rejecting
the
objections
under
Section 34 of the A & C Act, 1996
upholding the awards cannot be sustained
for a single moment inasmuch as the
Commercial
Court,
Varanasi
has
misconstrued the entire controversy and has
adopted an incorrect approach. Elaborating
the said submission, it is submitted that
though pursuant to the orders of this Court
in the proceedings under Section 11(4) of
the A & C Act, 1996, the sole arbitrator
came to be appointed, however, the entire
proceedings undertaken by the arbitrator
are in the teeth of the procedure as
envisaged under the A & C Act, 1996.
Submission is that the present cases are
classic example of violation of principles of
natural justice and also equal treatment has
not been meted to the BSNL as per Section
18 of the A & C Act, 1996 particularly
when, though the claimant on 16.11.2019
submitted statement of claim to which a
written statement came to be filed by the
BSNL on 21.12.2019 and on 04.02.2020, a
rejoinder affidavit also came to be filed by
the claimant to the written statement
submitted by the BSNL but on an objection
being raised to the amendment sought in
statement of claim of the claimant, the
same
stood
rejected
on
15.02.2020.
Thereafter, on several occasions time was
sought for filing another statement of claim
and the same was ultimately filed on
24.06.2020 that too beyond the period
stipulated under Section 23(4) of the A & C
Act, 1996, since by all eventualities it was
mandatory that the pleadings are to be
completed within a period of six months
from the date the arbitrator received notice
in writing thereof, thus, in view of the
provisions contained under Section 29A of
the A & C Act, 1996 at that very stage, the
mandate ought to have been terminated but
the sole arbitrator continued with the
10 All. B.S.N.L. & Anr. Vs. Chaurasiya Entp. & Ors.
437
proceedings and proceeded to pass an ex
parte award. It is further submitted that at
that relevant point of time due to pandemic
relating to Covid-19, the counsel who was
appearing for the BSNL before the
arbitrator became seriously ill and an
application seeking further time to submit
written statement was filed on 11.07.2020
and in the meantime the wife of the counsel
appearing for the BSNL also expired on
27.04.2021 and the counsel for the BSNL
was infected with corona virus but, without
considering the genuine problems faced by
the counsel for the BSNL the arbitrator
proceeded to pass an ex parte award. In a
nutshell, submission is that the Hon'ble
Supreme Court considering the overall
circumstances
emanating
from
the
pandemic relating to Covid-19 took suo
motu cognizance and in the proceedings in
COGNIZANCE FOR EXTENSION OF
LIMITATION, IN RE, series of orders were
passed
on
23.03.2020,
08.03.2021,
27.04.2021, 23.09.2021 and ultimately on
10.01.2022, whereby the period from
15.03.2020 till 28.02.2022 was excluded in
computing the period prescribed under
Section 23(4) and Section 29A of the A &
C Act, 1996. It is also submitted that
despite the fact that a specific ground had
been taken in the objections under Section
34 of the A & C Act for setting aside the
award that the arbitrator was biased and he
did not conduct the proceedings in an
impartial manner, though, the same was
noticed but not adverted to. It is, therefore,
prayed that the orders of the Commercial
Court be set aside and the appeal be
allowed in toto.

Arguments
of
Counsel
for
Claimants (Respondents)

9. Countering the submission of
the learned counsel for the BSNL, Sri Daya
Shankar Dubey along with Sri Mahendra
Kumar Mishra who appears for the
claimants have submitted that the orders of
the
Commercial
Court
rejecting
the
application under Section 34 of the A & C
Act, 1996 needs no interference in the
present proceedings. It is submitted that the
conduct of the BSNL itself dis-entitles it for
grant of any relief particularly when in the
arbitration proceedings before the sole
arbitrator the BSNL acted in a very reckless
and careless manner and did not bother to
participate
in
the
said
proceedings.
Submission is that it is not a case wherein
the BSNL was not aware about the
pendency of the proceedings before the
arbitrator as BSNL for the very first time
had put in appearance before the arbitrator
on 16.11.2019 and responded to the statement
of claim of the claimant on 07.12.2019. Not
only this, BSNL also contested the amendment
sought for in the statement of claim which
came to be rejected on 15.02.2020 and
thereafter on 24.06.2020 another statement of
claim came to be filed by the claimant to
which on 11.07.2020, 15 days' time was
sought and thereafter, the BSNL and its
counsel remained absent and did not
participate in the said proceedings. However,
despite several opportunities being accorded to
file written statement on 22.09.2020 one of the
parokar of the BSNL, Sri Sudhir Dumdum
appeared and thereafter, neither the BSNL nor
its counsel or representative chose to appear
before the arbitrator. Contention is that the
arbitrator cannot wait for time immemorial as
it is also not a case that BSNL is an individual,
however, it being a body corporate which
functions through its officers and has a legal
team, thus, it cannot be expected that they are
ignorant or not conversant with the legal
procedure.

10. With regard to the objection
regarding termination of the mandate of the
438 INDIAN LAW REPORTS ALLAHABAD SERIES
arbitrator on the ground of alleged non
compliance of the provisions contained
under Section 23(4) of the A & C Act,
1996, it is being contended that the
statement of claim came to be filed within a
period of six months as mandated under the
statute and it was on account of the delay
on the part of the BSNL in not filing the
written statement the proceedings stood
lingered on. It is also contended that the
period of six months for completion of the
pleadings stood triggered on 08.11.2019
when the arbitrator entered the reference
and the first claim stood submitted by the
claimant on 16.11.2019 and thereafter post
withdrawal of the statement of claim, the
second statement of claim was submitted
on 24.06.2020 as the claimant is entitled for
exclusion of the period from 24.03.2020 to
23.06.2020 when on account of Covid-19
the proceedings stood deferred and while
taking into consideration the said period
obviously the claim was filed much before
the lapse of six months period. It is also
submitted that so far as the objection of the
BSNL that the sole arbitrator was biased is
concerned,
the
same
is
preposterous
inasmuch as there is nothing on record
except bald allegations. Submission is mere
making of any allegation would not suffice
as the same is to be substantiated through
pleadings and record which is virtually
lacking. It is also contended that each and
every objection raised by the BSNL in the
proceedings under Section 34 of the A & C
Act, 1996 has been considered and no fault
can be attributed in that regard. Thus, the
orders impugned need no interference in
the present proceedings.

11. Before proceeding to embark
an inquiry upon submission of the rival
parties,
it
would
be
appropriate
to
reproduce the translated version of the
complete order sheet as well as the
statutory provisions which have material
bearing to the controversy in question.-

Order Sheet

"Chaurasia Enterprises V/s
Bharat Sanchar Nigam Ltd.

Date
Order
08/11/2019
Order
regarding
appointment of arbitrator
was
received
from
Hon'ble
High
Court.
Notices be issued to both
the parties to appear on
16/11/2019.

Signature of
Arbitrator
(illegible)
1-11-19
16/11/19
S/d-
(illegible)
Respondents
The Counsels for the
petitioner
and
the
opposite
parties
are
present. On behalf of the
petitioner, it has been
stated that they are agree
to
participate
in
the
arbitration
proceedings
to be conducted in the
office located at the
residence
of
the
mediator. The Counsels
for the opposite parties
said
that
he
would
present the opinion of the
department in this regard
later.
The
details
of
the
proceedings
will
be
noted in Hindi/English
languages.
The fees shall be payable
by both the parties as per
Schedule IV of the Act.
10 All. B.S.N.L. & Anr. Vs. Chaurasiya Entp. & Ors.
439
The parties are required
to deposit the costs of
arbitration
as
per
Sections 6 and 31A.
Petition filed by the
petitioner.
Opponents
must file rejoinder by 712-19. Parties should pay
fees/litigation
expenses
by the due date. Bill
given.

Signature of Arbitrator
(illegible)
16-11-19
7-12-19
(S/d-)
Amar
Bahadur
Chaurasia
S/d-
(illegible)
Respondents

Adjournment application
on behalf of the opposite
parties. WS be filed by
21-12-19.
Parties
to
submit the cost of the
suit.
Signature of Arbitrator
(illegible)
21-12-19
11/1/2020
W.S. filed on behalf of
the opposite party
Petitioners
can
file
rejoinder on date 04-012020. Parties to bear the
cost and fees till next
date.
Signature of Arbitrator
(illegible)
1-11-12
4/1/20
(sd/-)
Krishna
Kumar
Petitioner has prayed for
time.
Petitioners
can
file
rejoinder by 11-01-2020.
Signature of Arbitrator
(illegible)
4-1-20
11-1-20
21-1-20
Petitioner has prayed for
time.
Petitioner
can
file
rejoinder by 21-1-20.
Signature of Arbitrator
(illegible)
11-1-20
*21-12-19
W.S. filed on behalf of
the
opposite
party.
Petitioners
can
file
rejoinder on date 04-012020. Till then, parties
shall bear the cost of
case.
Signature of Arbitrator
(illegible)
21-12-19
*4-1-20
Petitioner has prayed for
time.
Petitioner
can
file
rejoinder by 11-1-20.
Signature of Arbitrator
(illegible)
4-1-20
*11-1-20

21-1-2020
(sd/-)
Amar
Bahadur
Chaurasia

Petitioner has prayed for
time.
Petitioner
can
file
rejoinder by 21-1-20.
Signature of Arbitrator
(illegible)

Petitioner has prayed for
time.
Petitioner
can
file
rejoinder by 4-2-2020.
Signature of Arbitrator
(illegible)
21-1-2020
4-2-2020
(sd/-)
Amar
Bahadur
Chaurasia

Petitioner
has
filed
rejoinder.
If the opposite party
wants to make reply,
they can do so by 15-22020.

Signature of Arbitrator
(illegible)
4-2-20
440 INDIAN LAW REPORTS ALLAHABAD SERIES
15-2-20
Parties
are
present. Objection
filed on behalf of
the opposite party.
Arguments
of
learned
counsels
of both the parties
were
heard
on
amendment
application
and
objection.
From the perusal
of file, it is clear
that petitioner has
presented
his
claim through an
affidavit. Since, it
is
not
in
accordance
with
law
to
make
amendment in an
affidavit,
therefore,
amendment
application
preferred by the
petitioner
is
dismissed.
File be placed on
20-2-2020
for
further
proceedings.

Signature of
Arbitrator
(illegible)
15-2-2020
20-2-2020
Petitioner prayed
for time to file
claim.
Petitioner to file in
advance
by
24/3/2020.
Signature of
Arbitrator
(illegible)
20-2-2020
24/3/2020
Parties
are
not
present
due
to
Corona pandemic
(Covid). All the
Courts have been
closed by the High
Court.
Therefore,
the
parties should take
further
action
considering
the
condition
of
corona
till
the
court opens.
Signature of
Arbitrator
(illegible)
24.03.20
24.06.2020
(signature)
Illegible
24/6
(signature)
Illegible
11/07/20
The petitioner has
filed
an
application and a
Claim Petition to
withdraw
the
statement
which
was filed earlier
while not press it.
On 11.07.20, the
objection
be
submitted
for
disposal.

Signature of
Arbitrator
(illegible)
24.06.2020

11.07.2020
A prayer was made to get
the time of 15 days for
filing
the
objection
on
behalf of opposite parties.
The opposite party be filed
the
objection/W.S.
till
28.07.2020
10 All. B.S.N.L. & Anr. Vs. Chaurasiya Entp. & Ors.
441

Signature of Arbitrator
(illegible)
11/7
28.07.2020
(signature)
illegible
07/08/2020
(signature)
illegible
28/7
Neither objection nor any
adjournment
application
was filed on behalf of
opposite
parties.
The
learned
counsel
for
petitioner is present. Was
heard.
An application has been
given
to
withdraw
the
previously filed statement
by not pressing it on behalf
of petitioner and a prayer
has been made to accept the
new claim petition filed in
its place.
The reason given in the
petitioner's
application
appears to be sufficient.
Therefore, the application
dated
24.06.2020
is
accepted. The permission is
allowed to include the filed
claim petition in the file.
The opposite parties be
filled
the
W.S.
till
07.08.2020.

Signature of Arbitrator
(illegible)
28.07.2020
07.08.2020
(signature)
illegible
14/8
(signature)
illegible
7/8
The learned counsel for
petitioner
is
present.
Nobody is present on behalf
of opposite parties. An
application was received by
post from the Assistant
General Manager (Legal
Cell) Office of General
Manager Telecom, District,
Varanasi
to
me,
the
Arbitrator
for
separation
from the trial of the case
which is placed on the file.
A prayer was made to seek
time on behalf of petitioner
to file an objection in the
above application.
Put up on 14.08.2020 for
objections/ disposal.

Signature of Arbitrator
(illegible)
07.18.2020
14.08.2020
(signature)
illegible
14/8
(signature)
Amar
Bahadur
Chaurasiya
The petitioner is present
with his counsel.
The opposite parties and
their
Counsel
are
not
present. An objection was
filled
on
behalf
of
petitioner.
An
application
was
submitted to summon some
documents from opposite
party on the behalf of the
petitioner.
Since, nobody is present on
behalf of opposite parties.
Therefore, the photocopy of
the
objection
and
application of the petitioner
be sent to opposite parties
through registered post.
On 25.08.2020, the file be
put up for disposal of
applications.

25.08.2020
The counsel for petitioner is
present. Nobody is present
on behalf of the opposite
parties.
Opposite
party
Principal G.M.K.P. Singh
was informed about the suit
over the telephone and was
told
that
nobody
is
appearing on behalf of
opposite party even after
442 INDIAN LAW REPORTS ALLAHABAD SERIES
getting information.
On 01.09.2020, the file be
put up for disposal of
application.
Signature of Arbitrator
(illegible)
01.09.2020
The
delivery
report
of
Speed Post Registry to the
opposite parties is filed in
the file in which delivery
has
been
shown.
The
information was also given
through
phone
and
whatsapp but nobody is
present
on
behalf
of
opposite
parties.
It
is
considered that notice has
been
served
upon
the
opposite parties.
On 08.09.2020, the file be
produced for disposal of
application.
Signature of Arbitrator
(illegible)
01.09.2020
08.09.20
(signature)
illegible
Nobody is present on behalf
of the opposite parties.
The counsel for petitioner is
present.
The
application
dated
31.07.2020 submitted by
Asst. GM was heard on
behalf of the petitioner.
The order was got typed on
a separate letter.
If the opposite parties wish,
they
can
submit
their
defense counter-claim by
21.09.2020 otherwise the
petitioner be submit the
evidence
affidavit
in
support of his statement by
28.09.2020.
The parties be pay all the
suit
expenses
to
the
arbitrator by further date.
Signature of Arbitrator
(illegible)
08.09.2020
22.09.2020
copy
received
(signature)
22.09.2020
Request by counsel for the
opposite
parties
for
providing a copy of the
order dated 08.09.2020
A copy was given to the
parokar Sudhir Dumdum of
opposite parties.
Signature of Arbitrator
(illegible)
22.09.2020
28.09.2020
A prayer was made to seek
time
for
submitting
evidence on behalf of the
petitioner.
Signature of Arbitrator
(illegible)
28.09
30-9-2020
On behalf of the petitioner,
testimony
affidavit
and
papers of Amar Bahadur
Chaurasia are filed on the
list.
Time was sought for some
other evidence. Remaining
evidence be filed by the
petitioner by 24-10-2020.
Signature of Arbitrator
Sd/- illegible
30/9
24-10-2020 The petitioner prayed for
time to submit evidence and
pay
fees.
Evidence
be
submitted and fee be paid
by the petitioner by 28-102020.
Signature of Arbitrator
Sd/- illegible
24-10-20
28-10-2020 The petitioner prayed for
time of two months to
submit evidence and pay
10 All. B.S.N.L. & Anr. Vs. Chaurasiya Entp. & Ors.
443
fee. Evidence be submitted
and fee be paid by the
petitioner by 28-12-2020.
Signature of Arbitrator
Sd/- illegible
28-10-20
28-12-2020 The petitioner is absent.
Time
for
submitting
evidence was sought over
phone.
Signature of Arbitrator
Sd/- illegible
28-12-20
25-2-2021
Due
to
corona,
the
petitioner is absent.
Evidence be submitted by
26-3-2021
Signature of Arbitrator
Sd/- illegible
26-03-2021

3-5-2021
Due
to
Corona,
the
petitioner is absent. The
counsel for the petitioner
stated that now he does not
have to provide any other
evidence. Arguments of the
counsel for the petitioner
were heard.
File be put up on 3-5-2021
for order.
Signature of Arbitrator
Sd/- illegible
26-3-2021
The award was signed and
announced.
Due to Corona, party is not
present therefore, copy of
award be sent to them.
Signature of Arbitrator
Sd/- illegible
3-5-2021
10-6-2021
The petitioner prayed for a
copy of the award.
Copy of the award was
provided to the petitioner.
Copy of the award was sent
to
the
opposite
parties
through registry.
Signature of Arbitrator
Sd/- illegible
10/6
Note:-* In the order sheets the
order dated 21.12.2019, 11.01.2020 and
04.01.2020 has been shown to be on two
places.

Statutory Provisions
"15.
Termination
of
mandate
and
substitution
of
arbitrator.- (1) In addition to the
circumstances referred to in section
13 or section 14, the mandate of an
arbitrator shall terminate-
(a) where he withdraws
from office for any reason; or
(b) by or pursuant to
agreement of the parties.
(2) Whether the mandate of
an arbitrator terminates, a substitute
arbitrator
shall
be
appointed
according to the rules that were
applicable to the appointment of
the arbitrator being replaced.
(3)
Unless
otherwise
agreed by the parties, where an
arbitrator is replaced under subsection (2), any hearings previously
held may be repeated at the
discretion of the arbitral tribunal.
(4)
Unless
otherwise
agreed by the parties, an order or
ruling of the arbitral tribunal made
prior to the replacement of an
arbitrator under this section shall
not be invalid solely because there
has
been
a
change
in
the
composition of the arbitral tribunal.

23. Statement of claim and
defence.-(1) Within the period of time
agreed upon by the parties or determined
444 INDIAN LAW REPORTS ALLAHABAD SERIES
by the arbitral tribunal, the claimant shall
state the facts supporting his claim, the
points at issue and the relief or remedy
sought, and the respondent shall state his
defence in respect of these particulars,
unless the parties have otherwise agreed as
to
the
required
elements
of
those
statements.
(2) The parties may submit with
their
statements
all
documents
they
consider to be relevant or may add a
reference to the documents or other
evidence they will submit.
(2A) The respondent, in support of
his case, may or plead a set-off, which shall
be adjudicated upon by the arbitral tribunal,
if such counter-claim or set-off falls within
the scope of the arbitration agreement.
(3) Unless otherwise agreed by the
parties, either party may amend or
supplement his claim or defence during the
course of the arbitral proceedings, unless
the
arbitral
tribunal
considers
it
inappropriate to allow the amendment or
supplement having regard to the delay in
making it.
(4) 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.
25. Default of a party.-Unless
otherwise agreed by the parties, where,
without showing sufficient cause.-
(a)
the
claimant
fails
to
communicate his statement of claim in
accordance with sub-section (1) of section
23, the arbitral tribunal shall terminate the
proceedings;
(b)
the
respondent
fails
to
communicate his statement of defence in
accordance with sub-section (1) of section
23, the arbitral tribunal shall continue the
proceedings without treating that failure in
itself as an admission of the allegations by
the claimant [and shall have the discretion
to treat the right of the respondent to file
such statement of defence as having been
forfeited];
(c) a party fails to appear at an oral
hearing
or
to
produce
documentary
evidence, the arbitral tribunal may continue
the proceedings and make the arbitral
award on the evidence before it.
29A. Time limit for arbitral
award.- (1) 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
completion of pleadings under sub-section
(4) of section 23.
Provided that the award in the
matter
of
international
commercial
arbitration may be made as expeditiously as
possible and endeavour may be made to
dispose off the matter within a period of
twelve months from the date of completion
of pleadings under sub-section (4) of
section 23.
(2) If the award is made within a
period of six months from the date the
arbitral tribunal enters upon the reference,
the arbitral tribunal shall be entitled to
receive such amount of additional fees as
the parties may agree.
(3) The parties may, by consent,
extend the period specified in sub-section
(1) for making award for a further period
not exceeding six months.
(4) If the award is not made within
the period specified in sub-section (1) or
the extended period specified under subsection (3), the mandate of the arbitrator(s)
shall terminate unless the Court has, either
prior to or after the expiry of the period so
specified, extended the period:
Provided that while extending the
period under this sub-section, if the Court
finds that the proceedings have been
10 All. B.S.N.L. & Anr. Vs. Chaurasiya Entp. & Ors.
445
delayed for the reasons attributable to the
arbitral tribunal, then, it may order
reduction of fees of arbitrator(s) by not
exceeding five per cent. for each month of
such delay:
Provided further that where an
application
under
sub-section
(5)
is
pending, the mandate of the arbitrator shall
continue till the disposal of the said
application:
Provided also that the arbitrator
shall be given an opportunity of being
heard before the fees is reduced.
(5) The extension of period referred
to in sub-section (4) may be on the
application of any of the parties and may be
granted only for sufficient cause and on
such terms and conditions as may be
imposed by the Court.
(6) While extending the period
referred to in sub-section (4), it shall be
open to the Court to substitute one or all of
the arbitrators and if one or all of the
arbitrators are substituted, the arbitral
proceedings shall continue from the stage
already reached and on the basis of the
evidence and material already on record,
and the arbitrator(s) appointed under this
section shall be deemed to have received
the said evidence and material.
(7) In the event of arbitrator(s)
being appointed under this section, the
arbitral tribunal thus reconstituted shall be
deemed to be in continuation of the
previously appointed arbitral tribunal.
(8) It shall be open to the Court to
impose actual or exemplary costs upon any
of the parties under this section.
(9) An application filed under subsection (5) shall be disposed of by the
Court as expeditiously as possible and
endeavour shall be made to dispose of the
matter within a period of sixty days from
the date of service of notice on the opposite
party."
Analysis

12. We have heard the learned
counsel for the rival parties and perused the
record carefully.

13. It is not in dispute that
pursuant to the tender floated in the year
2015 by the BSNL for execution of the
work of underground Optical Fibre Cable
in District Bhadoi the claimants were
awarded contracts. It is also not in dispute
that
dispute/differences
stood
arisen
between them which entailed issuance of
notices on 20.03.2019 and a reminder on
08.05.2019 for clearance of the outstanding
dues and in case the request being not
acceded to appoint an arbitrator in terms of
Section 12(5) read with 7th Schedule of the
A & C Act, 1996. Since BSNL did not
appoint an arbitrator, thus, proceedings
under Section 11(4) of the A & C Act, 1996
came to be instituted by the claimant which
resulted in the appointment of the sole
arbitrator.

14. Order sheet of the sole
arbitrator reveals that on 08.11.2019 the
sole
arbitrator
entered
the
reference
requiring
the
parties
to
appear
on
16.11.2019. On 16.11.2019, the BSNL and
the claimants had put in appearance before
the arbitrator and on that date the statement
of claim came to be filed by the claimant.
On 07.12.2019 the sole arbitrator directed
the BSNL to file its written statement fixing
next date on 21.12.2019. On 21.12.2019
written statement was filed by the BSNL to
which time for filing reply was granted to
the claimant. Again time was sought on
04.01.2020 by the claimant for filing reply
to the written statement followed on
11.01.2020 and 21.01.2020. On 04.02.2020
reply
to
the
written
statement
was
submitted by the claimant. On 15.02.2020,
446 INDIAN LAW REPORTS ALLAHABAD SERIES
the arbitrator rejected the amendment
application preferred by the claimant on
being
objected
by
the
BSNL.
On
20.02.2020, the claimant took time for
filing another statement of claim and on
24.03.2020 an order seems to have been
passed by the sole arbitrator deferring the
arbitration proceedings on account of
Covid-19. The next date fixed as per the
order sheet is 24.06.2020 on that date the
statement of claim was submitted by the
claimant to which on 11.07.2020 the
counsel for the BSNL took 15 days' time to
submit its written statement.

15. Order sheet further reveals that
on 28.07.2020 when the matter was taken
up by the sole arbitrator though, the
claimant was present but nobody appeared
on behalf of the BSNL and after hearing the
claimant the earlier (first) statement of
claim was withdrawn while granting time
to the BSNL to file its reply by 07.08.2020.
The order sheet dated 07.08.2020 depicts
that the counsel for the claimant was
present but nobody appeared on behalf of
BSNL. In the order sheet dated 07.08.2020,
it is also recited that an application was
received by the sole arbitrator under the
signature of the Assistant General Manager,
Legal Cell, in the office of the General
Manager, Telecom, District Varanasi with a
prayer to the arbitrator to recluse himself
from the proceedings, to which the
claimant was granted time to submit his
reply/objection.

16. On 14.08.2020 the claimant
was present but nobody appeared for the
BSNL and on that date, a copy of the
objection of the claimant to the application
preferred by the BSNL for reclusion of the
arbitrator was sent by registered post fixing
25.08.2020. On 25.08.2020 again nobody
appeared on behalf of the BSNL though
claimant was present and telephonically
Principal, G.M., K.P. Singh was informed
that nobody is appearing on behalf of the
BSNL and the next date was fixed on
01.09.2020.

17. On 01.09.2020, the arbitrator
recorded that the objection of the claimant
to the application filed by the BSNL which
was sent to the BSNL. Even information
was also sent to the BSNL through
whatsapp, however, nobody appeared so
the next date fixed for 08.09.2020.

18.
On 08.09.2020, nobody
appeared on behalf of the BSNL though the
counsel for the claimant was present and
the objection dated 31.07.2020 of the
BSNL was heard while granting time till
21.09.2020 to the BSNL to submit its reply.
The order sheet further reveals that on
22.09.2020 the parokar of the BSNL, one
Sri Sudhir Dumdum appeared before the
arbitrator and got his signatures affected on
the order sheet and received certain
documents.

19. On 28.09.2020 the claimant
took time to lead evidence and the next
date fixed was 30.09.2020 and thereafter,
on 30.09.2020 evidence was filed before
the arbitrator and the next date was fixed
on 24.10.2020 and on 24.10.2020 further
date
was
fixed
on
28.10.2020
and
thereafter, next date was on 28.12.2020 on
which date the claimant telephonically took
time and thereafter, order sheet reveals that
the awards came to be passed.

20. The order sheet of the sole
arbitrator beyond shadow of doubt depicts
that the BSNL was not serious and rather
reckless in prosecuting the proceedings
before the sole arbitrator. Though at the
relevant time the nation was affected with
10 All. B.S.N.L. & Anr. Vs. Chaurasiya Entp. & Ors.
447
Covid-19 and there happened to be orders
of
the
Hon'ble
Supreme
Court
for
excluding the period from 15.03.2020 to
28.02.2022 relatable to the proceedings
23(4) and 29A of the A & C Act, 1996 but,
what is relevant is the conduct of the BSNL
in pursuing the proceedings.

21. Learned counsel for the BSNL
while
inviting
attention
towards
the
supplementary
affidavit
sworn
on
01.09.2024
of
the Assistant
General
Manager (Legal) BSNL has contended that
the counsel who used to appear in the
arbitration proceedings before the arbitrator
was at that relevant time 70 years old
suffering from illness and he submitted an
application on 11.07.2020 through its clerk
apprising the sole arbitrator about the
illness and requested 15 days' time for
filing written statement, however, in the
meantime the counsel as well as his wife
got infected with Covid-19 and his wife
expired on 27.04.2021 and he also stood
hospitalized and on account whereof he
could not appear before the sole arbitrator
and, thus, the proceedings are per se illegal
and is in contravention of the fundamental
policy and is in violation of the principles
of natural justice and, thus, awards are
liable to be set aside.

22. The argument of the learned
counsel for the BSNL though looks
attractive at the first blush but it is not
liable to be accepted for the simple reason
that after filing of an application on
11.07.2020 by the clerk of the BSNL
seeking 15 days' time nobody appeared on
behalf of the BSNL. It is not a case wherein
the BSNL was not aware about the
pendency of the proceedings before the
arbitrator. As a matter of fact order sheet
reveals that telephonically, through post,
whatsapp and fax the officers of the BSNL
were apprised about non-appearance of the
counsel and the representative in the
arbitration proceedings before the sole
arbitrator.

23. The recitals contained in the
order sheet are self indicative of the fact
that recklessly the proceedings was being
prosecuted and not only this on one fine
day i.e. on 22.09.2020 one of the
representatives of the BSNL, Sri Sudhir
Dumdum appeared and thereafter, the
proceedings before the arbitrator remained
unattended.

24. On a pointed query being
raised to the learned counsel for the BSNL
whether
there
happens
to
be
any
communication at the end of the BSNL,
seeking further time barring the request
letter
dated
11.07.2020,
nothing
is
forthcoming. Apparently, there happens to
be nothing on record to show that there was
any attempt on the part of the BSNL to
apprise the arbitrator about the difficulties
and the problems faced by the them while
seeking further time. In absence of
anything on record, the arbitrator was not
supposed to wait for the time unlimited
with the expectation that on a fine day
somebody would appear on behalf of the
BSNL to pursue their stand. The benefit of
the judgment in the case of cognizance of
extension and limitation, IN RE (supra)
cannot
be
granted
on
mere
asking
particularly when it is not the case of the
BSNL that they were not aware about the
pendency of the proceedings as rather to
the contrary we find from the order sheet
that on certain dates, the BSNL through its
counsel stood represented and on other
dates remained absent.

25. As regards the submission of
the learned counsel for the BSNL that the
448 INDIAN LAW REPORTS ALLAHABAD SERIES
mandate of the arbitrator stood terminated
on account of non completion of pleadings
under Section 23(4) of the A & C Act, 1996
and the time limit for arbitral award came
to lapse after a period of one year
therefrom under Section 29A of the A & C
Act, 1996, therefore, the award is liable to
be set aside is wholly misplaced for the
simple reason that the sole arbitrator
entered into the reference on 08.11.2019
while fixing 16.11.2019 for submission of
statement of claim and on the said date the
statement of claim came to be filed before
the claimant. A written statement on behalf
of BSNL came to be filed on 21.12.2019 to
which rejoinder was filed by the claimant
on 04.02.2020 and when an amendment
application came to be filed by the claimant
for amending the statement of claim the
same was opposed by BSNL, which came
to be rejected on 15.02.2020 and liberty
was sought by the claimant to file another
statement of claim, however, in the
meantime due to Covid-19 the arbitrator
adjourned the proceedings on 24.03.2020
fixing the next date on 24.06.2020 and on
that date statement of claim came to be
filed before the arbitrator.