Mere Mentioning Of Incorrect Provision Not Fatal: Himachal HC Entertains Application Filed U/s. 151 CPC Instead Of Section 29 A (4) Arbitration Act

The Himachal High Court while considering an application filed under Section-151 CPC instead of Section-29 A (4) Arbitration and Conciliation Act reiterated that mere mentioning of incorrect provision would not be fatal.

The Court was considering an application filed under Section-151 of CPC for extension of time to comply with the order passed in the Arbitration Proceedings.

The Bench of Justice Rakesh Kainthla observed, "......It was laid down by the Hon’ble Supreme Court in Pruthvirajsinh Nodhubha Jadeja v. Jayeshkumar Chhakaddas Shah, (2019).... that mere mentioning of an incorrect provision of law is not fatal if the power to pass an order is available with the Court.....Thus, the application cannot be dismissed on the ground that Section 151 of CPC was mentioned instead of Section 29 A (4) of the Arbitration and Conciliation Act."

The Petitioner was represented by Advocate Rohan Thakur while the Respondent was represented by Additional Advocate General Lokender Kutlehria.

Facts of the Case

It was stated that the previous such application was allowed by the Court granting extension of time enabling the Arbitrator to conclude the proceedings within six-months. When the parties appeared before the Arbitrator, he asked the Counsel to download the copy of the order but the Counsel failed to do so. The matter couldn't be taken up in the absence of the order extending the time and the time granted by the Court by way of previous order stood expired.

Counsel for the Respondent submitted that the present application under Section151 CPC is not maintainable as a specific provision exists under Section 29 (A) (4) of the Arbitration and Conciliation Act. He contended that the Petitioners were negligent in not appearing before the Arbitrator and there is no sufficient cause for extending the period.  

Reasoning By Court

The Court, at the outset, noted that there is a specific provision i.e. Section 29A (4) of the Arbitration and Conciliation Act for extending the period for completing the arbitration proceedings as it was held by the Supreme Court in My Palace Mutually Aided Coop. Society v. B. Mahesh (2022) that the inherent power under Section 151 of CPC cannot be exercised when a specific provision exists.

The Court agreed with the submission that the application under Section 151 CPC would not be maintainable when specific provision under Section 29 A (4) of the Arbitration and Conciliation Act exists, however it added that the same will not make much difference.

The Court held that mere mentioning of incorrect provision would not be fatal.

"It is true that the learned counsel representing the petitioner before the learned Arbitrator was negligent because he should have downloaded the order passed by this Court extending the mandate of an Arbitrator. Similarly, the learned counsel for the petitioners appearing before this Court should also have sent a certified copy using registered post or the speed post, however, the petitioners cannot be penalized for the fault of his counsel," the Court further held.

It was of the view that the land of the applicants/petitioner was acquired by NHAI for the construction of the road and they have a constitutional right under Article 300 A of the Constitution of India to protect his property and the payment of adequate compensation which should not be denied due to the fault of the Counsel.

The application was accordingly allowed.

Cause Title: Mangal Chand & Ors. vs. LAC NHAI & Ors.

Appearances:

Petitioner- Advocate Rohan Thakur, Advocate Maan Singh

Respondent- Additional Advocate General Lokender Kutlehria, Advocate Shreya Chauhan

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