OCD-53 ORDER SHEET IN THE HIGH COURT AT CALCUTTA COMMERCIAL DIVISION ORIGINAL SIDE AP-COM/366/2026 M/S. U. CON VS UNION OF INDIA BEFORE: The Hon’ble JUSTICE GAURANG KANTH Date : 8th July, 2026. Appearance: Mr. Aurin Chakraborty, Adv. Mr. Jatan Monga, Adv. …for petitioner. Mr. Sunil Kumar Singhania, Adv. Ms. Farnaz Nasim, Adv. …for respondent. The Court: The affidavit-in-opposition and the reply thereto have been taken on record. The present petition has been filed by the petitioner under Sections 14 and 15 read with Section 11 of the Arbitration and Conciliation Act, 1996, seeking termination of the mandate of the arbitral tribunal and appointment of a fresh arbitral tribunal to adjudicate the disputes and differences that have arisen between the parties in connection with the agreement dated 23.03.2007. Learned counsel for the petitioner submits that the petitioner is a registered firm engaged in the execution of infrastructure and engineering works and had participated in a tender floated by the respondent for 2 execution of various works in connection with the Rupsa–Bangriposi Gauge Conversion of South Eastern Railway, within the jurisdiction of the Deputy Chief Engineer (Con)/Kharagpur, South Eastern Railway. It is submitted that the respondent had duly accepted the offer of the petitioner and issued a Letter of Acceptance. Pursuant to the acceptance of the petitioner's bid, a contract was awarded in favour of the petitioner for a value of Rs. 4,89,61,253/-, with the stipulated period of completion ending on 22.01.2008. Learned counsel for the petitioner further submits that disputes and differences arose between the parties, which ultimately led to termination of the contract on 10.04.2008. It is submitted that disputes arose between the parties and that the petitioner sought reference of the disputes to arbitration by a letter dated 06.09.2011. Pursuant thereto, the respondent unilaterally constituted an arbitral tribunal consisting entirely of its own employees. Learned counsel for the petitioner submits that the respondent thereafter repeatedly and unilaterally re-constituted the arbitral tribunal on several occasions, namely in the years 2011, 2023, 2024, and again in August 2025, thereby completely disrupting the arbitral proceedings. It is submitted that, despite the petitioner having filed the statement of claim, the proceedings remained dormant from the year 2014 onwards for several years. It is further submitted that the presently constituted tribunal comprises Mr. Sudhangshu Sharma as the Presiding Arbitrator, and Mr. S.C. Mitra and Mr. V.K. Chowdhury as Co-Arbitrators, who are stated to be employees of the respondent. 3 Learned counsel for the petitioner submits that, in terms of the judgment passed by the Hon'ble Supreme Court, the said appointments, being unilateral, are contrary to the settled position of law. Learned counsel for the petitioner further states that the constitution of the present arbitral tribunal is ex facie contrary to the provisions of Section 12(5) read with the Fifth and Seventh Schedules of the Arbitration and Conciliation Act, 1996. It is submitted that the respondent, being itself interested in the outcome of the dispute, could neither act as arbitrator nor unilaterally appoint arbitrators. Learned counsel for the respondent states that the present petition is not maintainable, as the claim sought to be raised constitutes a deadwood claim and is barred by limitation. Learned counsel for the respondent states that, in terms of Section 137 of the Limitation Act, the present claims are barred. He states that the petitioner had failed to take any affirmative steps between the years 2011 and 2023. He further states that there has been no extension of the mandate of the arbitral tribunal in terms of Section 29A of the Arbitration and Conciliation Act, 1996. This Court has considered the materials placed on record and heard the arguments advanced by learned counsel for the parties. The records reveal that the appointments of the arbitrators have been unilateral and are contrary to the settled legal position in terms of the judgment of the Hon'ble Supreme Court in Central Organisation for Raixlway Electrification v. ECI-SPIC-SMO-MCML (JV), (2025) 4 SCC 641 and Bhadra International (India) Pvt. Ltd. v. Airports Authority of India, 2026 SCC OnLine SC 7 . 4 The contention raised by the respondent that the claims are barred by limitation and have become deadwood claims is not attracted to the facts of the present case, since the arbitral proceedings have continued since the year 2011, and the respondent has, from time to time, itself appointed arbitral tribunals to adjudicate the disputes. As recently as August 2025, the respondent reconstituted the present arbitral tribunal to adjudicate the disputes between the parties. Rather, the respondent had not been diligent in pursuing the arbitral proceedings and had repeatedly changed the composition of the arbitral tribunal from time to time, thereby causing delay in adjudication of the disputes. The other contention raised by learned counsel for the respondent that an application under Section 29A of the Arbitration and Conciliation Act, 1996, seeking extension of the mandate of the arbitral tribunal, has been filed by the petitioner, is not attracted in the present petition, since the disputes arose in the year 2011, whereas Section 29A was introduced into the Arbitration and Conciliation Act, 1996, with effect from 23rd October 2015. Since the present arbitration proceedings commenced prior to the said amendment, the provisions of Section 29A are not attracted to the facts of the present case. It is true that the petitioner had initially participated in the arbitral proceedings and had consented to the appointment of the arbitral tribunal. However, the petitioner has challenged the constitution of the arbitral tribunal in view of its repeated reconstitution and the settled legal position governing unilateral appointments. In view of the decision of the Hon'ble Supreme Court in Bhadra International (India) Pvt. Ltd. v. Airports Authority of India, 2026 SCC OnLine SC 7 , even where a party has initially participated in the proceedings before the 5 tribunal, this would not preclude the party from subsequently challenging the constitution of the arbitral tribunal once the appointment itself is found to be void ab initio and non est in the eye of law. In the facts of the present case, this Court is of the view that the presently constituted tribunal has become de jure ineligible and unable to perform its functions within the meaning of Section 14 of the Arbitration and Conciliation Act. Consequently, the mandate of the existing arbitral tribunal deserves to be terminated. Accordingly, the mandate of the arbitral tribunal comprising Mr. Sudhangshu Sharma as the Presiding Arbitrator, and Mr. S.C. Mitra and Mr. V.K. Chowdhury as Co-Arbitrators, stands terminated. This Court is further of the view that, in exercise of its powers under Sections 14 and 15 read with Section 11 of the Arbitration and Conciliation Act, it would be appropriate to appoint a fresh arbitral tribunal. Accordingly, Mr. Justice Pranab Kumar Chattopadhyay (Retd.) is appointed as the Presiding Arbitrator, and Ms. Amrita Pandey, Advocate (Mobile No. 9432820002), and Mr. Gautam Banerjee, Advocate (Mobile No. 9434010193), are appointed as Co-Arbitrators, thereby constituting the Arbitral Tribunal to adjudicate the disputes between the parties. The tribunal shall enter upon the reference after duly complying with Section 12(5) of the Arbitration and Conciliation Act. All questions relating to arbitrability of the dispute, admissibility of the claims, limitation, and other issues are kept open to be urged before the learned Sole Arbitrator. The learned Sole Arbitrator shall be entitled to fix his remuneration in accordance with the Fourth Schedule to the Act. 6 A copy of this order shall be communicated by the petitioner to the learned Sole Arbitrator for necessary action. With the aforesaid directions, the present petition stands disposed of. (GAURANG KANTH, J.) R.D. Barua