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Case Number

W.P No. 4104 of 2008

Attorney(S)

M.N Nawander
P.M Shah, Senior Counsel instructed by 5. P. Shah

Judges

S.S Shinde, J.

Acts

SECTION 34 ARBITRATION AND CONCILIATION ACT 1996
Order VI, Rule 17 of Civil Procedure Code and section 151 of Civil Procedure Code.
provision of Civil Procedure Code and also the provisions of Limitation Act.
provision of Civil Procedure Code or Limitation Act
section 54 of Arbitration Act
sub-section (3) of section 34
section 34 of the 1996 Act
Arbitration Act, 1996

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner filed Civil Arbitration Application No. 593 of 2005 before the III Joint C.J.S.D., Jalgaon, invoking Order VI, Rule 17 CPC and Section 151 CPC, seeking amendment of a pending petition (to add new sub-clauses W, X, Y, Z into para 13 after sub-clause V). The proposed additions alleged, among other things, arbitrator misconduct, conflict with public policy and fraud, a request under section 54 of the Arbitration Act to receive evidence afresh, and that the award decided matters beyond the scope of arbitration. The trial court rejected the petitioner's application for amendment (order Exh.70 in C.M.A. No. 593 of 2005 dated 21-4-2008). The petitioner challenged that rejection by way of the present writ petition. The petitioner originally filed the application for setting aside the award under section 34 on 11-7-2005; the amendment application was filed on 24-3-2008.

Legal Issues Presented

Whether the trial court erred in rejecting the petitioner's application to amend the section 34 petition at the stage when the amendment was sought (i.e., whether amendment is permissible after the period of limitation under section 34(3) has expired).
Whether the provisions of the Civil Procedure Code or the Limitation Act are applicable to proceedings under section 34 of the Arbitration and Conciliation Act, 1996, or whether the specific time limits in section 34(3) govern exclusively.
Whether this Court should exercise writ jurisdiction under Articles 226/227 to interfere with the trial court's order rejecting the amendment application (i.e., the scope for extraordinary writ relief to correct alleged errors of the lower court).

Arguments of the Parties

Petitioner's Arguments

The petitioner sought to amend the pending Civil Arbitration Application to add specific sub-clauses (W to Z); the amendment purportedly would not change the nature of the petition and would cause no prejudice to the other parties.
The amendment was necessary in the interest of justice and for just decision of the case.
The trial court's rejection relied on this Court's prior decision in Pushpa P. Mulchandani; the petitioner contended that subsequent Apex Court decisions (Iti Ltd. v. Siemens; Neeldeep Investments Pvt. Ltd. v. Custodian) changed the law relied upon by the trial court and thus that Pushpa (and similar earlier High Court pronouncements) are no longer good law.
The petitioner further urged that provisions of the Civil Procedure Code and the Limitation Act are applicable to proceedings under section 34 and therefore the trial court should have applied those provisions/relevant principles in considering the amendment application.

Respondent's Arguments

The scope for this Court to entertain a writ under Articles 226/227 is limited and confined to correcting jurisdictional error; the respondent relied on authorities emphasizing that limited scope.
No material was placed on record showing sufficient cause to excuse delay under subsection (3) of section 34 of the Arbitration and Conciliation Act, 1996.
The respondent alleged mala fide delay/prolongation by the petitioner and pointed to record material (including written notes of arguments filed by respondent on 27-11-2007 and an application by petitioner to summon arbitrator dated 29-12-2007) to show belatedness and that facts in the proposed amendments were within the petitioner's knowledge earlier.
The respondent argued that when a special Act (Arbitration Act) contains specific provisions, those specific provisions govern and other enactments (like CPC or Limitation Act) need not be applied to contradict or override the special Act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pushpa P. Mulchandani (Mrs.) v. Admiral Radhakrishin Tahilani (RETD), 2000 (4) Mh.L.J. 819 : 2001 (1) Bom.C.R. 592	Held that an application for setting aside under section 34 must be made within the limitation prescribed by the Act and that permitting amendment after limitation would amount to entertaining a fresh petition beyond limitation.	The trial court relied on this decision in rejecting the amendment; the High Court reproduced para 29 and treated its holding as supportive of the proposition that amendment after limitation is impermissible unless sufficient cause is shown.
Iti Ltd. v. Siemens Public Communications Network Ltd., (2002) 5 SCC 510	Cited by petitioner as subsequent Apex authority that, according to petitioner, affects earlier High Court precedent relied upon by the trial court.	The Court observed that Apex Court pronouncements govern the field; however, the Court proceeded to apply the clear text of section 34(3) and specific provisions of the Arbitration Act to the facts.
Neeldeep Investments Pvt. Ltd. (I) v. Custodian, (2008) 13 SCC 538	Cited by petitioner as subsequent Apex authority relevant to amendment/limitation issues.	The Court noted that Apex Court decisions govern the field, but found that the specific, clear wording of section 34(3) controlled the present matter and that no sufficient cause had been shown to permit amendment outside the statutory period.
Ouseph Mathai v. M. Abdul Khadir, (2002) 1 SCC 319	Authority cited by respondent to explain the limited scope of writ jurisdiction under Articles 226/227.	The Court acknowledged the limited scope of extraordinary writ jurisdiction and applied that principle in concluding there was no reason to exercise such jurisdiction given the trial court's plausible reasoning.
Essen Deinki v. Rajiv Kumar, (2002) 8 SCC 400	Authority cited by respondent in support of limitations on writ intervention.	The Court noted these authorities in considering the respondent's submission about the circumscribed jurisdiction of this Court under Articles 226/227; ultimately the Court found no basis to intervene.
Surya Dev Rai v. Ram Charider Rai, (2003) 6 SCC 675 : 2004 (1) Mh.L.J (S.C) 633	Authority cited by respondent concerning limits of writ jurisdiction / appellate interference with subordinate courts.	The Court relied on the principle of limited writ jurisdiction when reviewing whether to interfere with the trial court's order and concluded the trial court's view was plausible and reasonable.
Vastu Invest and Holdings Pvt. Ltd. v. Gujarat Lease Financing Ltd., 2001 (2) Mh.L.J. 565	Held that a ground not initially raised in the petition could not be permitted to be subsequently raised by amendment if the amendment application itself was beyond the period of limitation fixed for filing the petition challenging the award.	The High Court cited and relied on this authority as consistent with the proposition that amendment beyond the statutory limitation is impermissible; used to support the conclusion that proposed grounds (W and X) should have been included earlier.
Madan Lal (dead) by his legal representative v. Sundar Lal, AIR 1967 SC 1233	Authority referenced (via Pushpa P. Mulchandani) for the proposition that an objection filed after limitation cannot be treated as an application to set aside if beyond limitation.	This earlier authority was cited within Pushpa and noted by the Court as part of the legal context supporting the requirement of bringing all grounds within the limitation period.

Court's Reasoning and Analysis

The Court began by reproducing subsection (3) of section 34 of the Arbitration and Conciliation Act, 1996 and emphasized its plain wording:

“34(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award ... Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”

The Court treated the wording as clear and unambiguous, concluding that the legislature intended: (a) an initial period of three months to file an application under section 34, and (b) an additional discretionary period of 30 days only where the Court is satisfied that the applicant was prevented by sufficient cause from filing within the initial three months.

The Court applied that statutory test to the facts: the original application under section 34 was filed on 11-7-2005; the amendment application sought to be filed on 24-3-2008 sought to add new grounds to the main petition. The Court observed that subsection (3) prescribes the time within which a challenge to an award and any additions to it must be made — either within three months or, if delayed, within the further 30 days upon sufficient cause. The Court held that where the special Act contains specific time provisions, other enactments (CPC or Limitation Act) are not to be applied to override those specific statutory provisions.

On inspection of the application for amendment and the proposed new clauses, the Court found no attempt by the petitioner to demonstrate sufficient cause for delay. The Court held that proposed sub-clauses W and X concerned facts within the petitioner's knowledge at the time of filing the main application and therefore should have been included earlier. The trial court's characterization of the amendment application as belated and unsupported by material describing circumstances preventing timely filing was held to be plausible and reasonable.

Because the trial court had applied the statutory limitation and found no sufficient cause, the High Court concluded there was no basis for exercising extraordinary writ jurisdiction to interfere with that decision.

Holding and Implications

Holding: Writ petition dismissed.

Implications and direct effects:

The rule made returnable forthwith is discharged.
Interim relief previously granted to the petitioner is vacated (interim relief stands vacated).
Any civil application arising from the writ petition is disposed of in view of the dismissal.
The petitioner's request for continuation of interim relief for a further eight weeks was rejected.
The Court did not set aside the trial court's order rejecting the amendment application and did not exercise extraordinary writ jurisdiction because the trial court's reasoning was plausible and reasonable in light of section 34(3).

The opinion does not purport to lay down a novel legal principle; it applies the clear wording of section 34(3) and existing authorities to the facts and declines to interfere with the trial court's order.

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Union Of India v. B.C Biyani .

1. Rule. Rule made returnable forthwith. By consent, the petition is taken up for hearing immediately.

2. This petition is filed challenging the order passed by the III Joint C.J.S.D Jalgaon below Exh.70 in C.M.A No. 593 of 2005 dated 21-4-2008.

3. The petitioner herein filed Civil Arbitration Application No. 593 of 2005 before the Joint C.J.S.D Jalgaon under Order VI, Rule 17 of Civil Procedure Code and section 151 of Civil Procedure Code. It is the case of the petitioner that the petitioner has filed Civil Arbitration Application No. 593 of 2005 and the said application is pending for arguments before the trial Court. It is further case of the petitioner that on going through the memo of petition, he feels that it is necessary to amend the petition in the interest of justice, therefore, by way of filing above mentioned application, the petitioner prayed that the amendment may kindly be allowed as the amendment is not going to change the nature of the petition and no prejudice would be caused to the parties concerned if the application for amendment is allowed. The petitioner further prayed that the amendment is necessary for the purpose of just decision of the case. Therefore, the petitioner prayed that in the original petition in para 13 after sub clause “V” new sub-clauses “W to Z” may be allowed to be added and in the said subclauses following words may be permitted to add:—

“W) That the Arbitrator mis-conducted himself in awarding the arbitration award against the petitioner, which can be proved from the evidence on record. That mis-conduct of the Arbitrator amounts to miscarriage of justice.

X) The arbitral award is in conflict to the public policy of India, which is liable to be set aside. Making of the award was inducted or affected by fraud in violation of the Act.

Y) The Hon'ble Court can direct the Arbitrator under section 54 of Arbitration Act to receive the evidence afresh on the grounds of exhibiting documents of Xerox copies and also for giving the opportunity to the petitioner to lead the evidence in that behalf. The subject-matter of the dispute i.e granting of the interest was not capable of settlement by arbitration under the law in force.

X) That the award contain decision on the matter beyond the scope of the submission to the arbitration and the same is liable to be set aside.

According to the petitioner, the amendment sought to be inserted instead of sub-clause “V” and new sub-clause W, X, Y, Z, would not change the nature of the main petition, therefore, the petitioner prayed that the application may be allowed.

Learned counsel appearing for the petitioner invited my attention to the grounds taken in the petition and submitted that the application for amendment filed by the petitioner should have been allowed. Learned counsel submitted that the trial Court while rejecting application for amendment has placed reliance on the reported judgment of this Court in the case of Pushpa P. Mulchandani (Mrs.) v. Admiral Radhakrishin Tahilani (RETD), reported in 2000 (4) Mh.L.J 819 : 2001 (1) Bom.C.R 592, and more particularly the observations in the said judgment that, “the application for setting aside the award under section 34 of the Act has to be made within limitation prescribed by the Act. This necessarily means that all grounds on which the award is sought to be set aside have to be taken in the petition itself. It is, therefore, not permissible for the Court to permit an amendment of the petition, that too after the period of limitation prescribed in the section, is expired. That would tantamount to entertaining a fresh petition beyond the period of limitation.”

According to the learned counsel, in view of the subsequent pronouncement of the Apex Court in the case of Iti Ltd./ v. Siemens Public Communications Network Ltd.., reported in (2002) 5 SCC 510 and in the case of Neeldeep Investments Private Limited (I) v. Custodian, reported in (2008) 13 SCC 538, the law laid down by this Court in the aforesaid judgments is no more good law. The said judgments should not have been relied upon by the Court below while rejecting the application filed by the petitioner herein. According to the learned counsel, the provisions of Civil Procedure Code as well as the provisions of limitation act are very well applicable to the proceeding under section 34 of the said Act, and therefore, the Court below was not right in not referring to the provision of Civil Procedure Code and also the provisions of Limitation Act. Therefore, the learned counsel would submit that the Court below is not correct in rejecting the application for amendment. Learned counsel invited my attention to the pleading in the petition, grounds therein and the annexures thereto and submitted that in the interest of justice, the petition deserves to be allowed.

4. On the other hand, learned senior counsel appearing for the respondent submitted that the scope to entertain writ petition under Article 226 or 227 is very limited and this Court can exercise the jurisdiction to keep the Courts below within the bounds and correct the jurisdictional error. Learned senior counsel in support of his contention has placed reliance on the reported judgments of this Court in the cases of Ouseph Mathai v. M. Abdul Khadir, reported in (2002) 1 SCC 319, Essen Deinki v. Rajiv Kumar., reported in (2002) 8 SCC 400 and Surya Dev Rai v. Ram Charider Rai, reported in 2004(1) Mh.L.J (S.C) 633 : (2003) 6 SCC 675. Learned counsel further submitted that no material was placed on record to show that the petitioner was prevented by sufficient cause in not filing application within limitation prescribed under sub-section (3) of section 34 of Arbitration and Conciliation Act, 1996. Learned senior counsel has further invited my attention to page 63 of the compilation and submitted that the attempt made by the petitioner to prolong the pending proceeding is mala fide attempt. Counsel also invited my attention to Exh. R-4 to the affidavit in reply and more particularly item at Sr. Nos. 41 and 61 and submitted that the respondent has already filed written notes of arguments on 27-11-2007 and the petitioner has filed application to summon the arbitrator for examination on 29-12-2007. Learned senior counsel further submitted that even on reading application filed by the petitioner, it is clear that when the matter was posted for arguments, at belated stage, application for amendment was filed by the petitioner. My attention was further invited to the application filed by the petitioner for amendment and more particularly to the proposed clauses which the petitioner wish to add to the main petition and submitted that on careful perusal of the proposed clauses for amendment, all those facts were well within the knowledge of the petitioner even at the time of filing of arbitration application. Learned senior counsel further invited my attention to the reported judgment of this Court Pushpa P. Mulchandani (supra) [2000 (4) Mh.L.J 819]and submitted that para 29 of the said judgment concludes that the provisions of section 34 stipulates time limited for filing application and further application for amendment. Learned senior counsel further submitted that the Act provides specific provisions and therefore, when specific provisions is provided in the act the provisions of other act would not be applicable. Therefore, learned counsel relying on another judgment of this Court in the case of Vastu Invest and Holdings Pvt. Ltd. v. Gujarat Lease Financing Ltd., reported in 2001 (2) Mh.L.J 565, would submit that the writ petition is devoid of any merits and same deserves to be dismissed.

5. I have heard counsel for the respective parties at length. The provisions of sub-section (3) to section 34 of Arbitration and Conciliation Act, 1996, reads thus:—

“34(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal;

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”

On careful perusal of the above provisions, it is clear that the wording is very clear, unambiguous and no any other interpretation can be given to the said provisions. By way of said provision, the intention of the legislature are very clear and when application for setting aside the arbitration award is made, it has to be filed within three months from the date of receiving arbitral award or if the request had been made under section 33, from the date on which that request had been disposed of by arbitral Tribunal. The proviso to sub-section (3) provides that if the Court is satisfied that the application was prevented by sufficient cause from making application within the said period of three months, it may entertain the application within further period of 30 days but not thereafter. Therefore, by sub-section (3) of section 34 of the said Act, in the first instance three months time is provided for filing application for challenging the arbitration award and further 30 days time is provided in case application is filed after three months, but with stipulation that the Court can entertain application in case applicant shows that he was prevented by sufficient cause in making the application within the said period of three months.

In the instant case, the application for amendment was filed by the petitioner on 24-3-2008. Application for setting aside the award under section 34 of the said Act was filed by the petitioner herein on 11-7-2005. Application for amendment which is filed in March 2008 is to add certain clauses in the main application which is filed for setting aside the award. Therefore, sub-section (3) of section 34 of the said Act clearly provides time limit under which the application for setting aside the award can be filed and further if any addition to the said application, has to be within the said period of three months or by showing sufficient cause within further 30 days, and it will be for the concerned Court to allow the said application, which is filed after three months but within 30 days from expiry of the said three months.

Therefore, when the provisions made under sub-section (3) of section 34 is clear unambiguous and no other interpretation can be put to the said section, there is no question of application of any other provisions of any other Act. Though the learned counsel appearing for the petitioner tried to contain that the provision of Civil Procedure Code or Limitation Act are applicable even to the said Act, that is not the point involved in the matter. The judgment of the Apex Court cited supra by the counsel for the petitioner, of course, governs the field. When special Act provides specific provision in the Act itself, the provision of other Act are not necessary to be applied. Only in case there is no any specific provision contained in the special Act and there is no any prohibition to apply the provisions of another act, the provisions of other act can be made applicable.

In para 29 of the judgment in the case of Pushpa P. Mulchandani (supra), [2000 (4) Mh.L.J 819]this Court held thus:—

“29. Mr. Chagla further contended that an application for setting aside the award under section 34 of the 1996 Act has to be made within the limitation prescribed by the Act. This necessarily means that all grounds on which the award is sought to be set aside have to be taken in the petition itself. It is, therefore, not permissible for the Court to permit an amendment of the petition, that too after the period of limitation prescribed in that section has expired. That would tantamount to entertaining a fresh petition beyond the period of limitation. AIR 1967 SC 1233, Madan Lal (dead) by his legal representative v. Sundar Lal is pressed into service in support of the proposition that an objection to the award which has been filed after the period of limitation cannot be treated as an application to set aside the award if it is filed beyond limitation. The contention is justified and needs to be upheld.

Yet, in another judgment in the case of Vastu Invest and Holdings Pvt. Ltd. (supra) [2001 (2) Mh.L.J 565]in para 14, this Court has held thus:—

“14. The law has been well settled even under the Arbitration Act, 1996 that a ground not initially raised in the petition to challenge the award could not be permitted to be subsequently raised by an amendment, if the application for amendment itself was beyond the period of limitation fixed for filing of the petition, challenging the award.”

The Court in that case further interpreted the provisions of sub-section (3) of section 34 of the Act in paras 16 and 17.

On careful perusal of the application for amendment of main application filed by the petitioner, would show that there is no any attempt on the part of the petitioner to show that the petitioner was prevented by sufficient cause in bringing the said matter i.e which he wants to bring by way of proposed amendment, at the time of filing of main application for setting aside the arbitral award. Even by general principles, sufficient cause is to be demonstrated and same has not been shown in the application which was filed for amendment of the arbitration application by the petitioner. On careful perusal of the proposed clauses to be inserted by way of amendment, it seems that so far as clauses “W” and “X”, are concerned, they should have been included in the main application itself since those facts were within the knowledge of the petitioner at the time of filing application challenging the arbitral award. The trial Court in the impugned order has observed that the application for amendment filed by the petitioner is at belated stage and there is no material placed on record regarding circumstances, which prevent the petitioner to file petition within prescribed time.

6. On careful perusal of the impugned order passed by the Court below, I find that the trial Court has taken a plausible and reasonable view and therefore, in the facts and circumstances of this case, no case is made out to exercise the extraordinary writ jurisdiction. Hence, writ petition is dismissed. Rule discharged. Interim relief stands vacated. Civil application if any, stands disposed of, in view of the dismissal of writ petition.

Learned counsel appearing for the petitioner prays for continuation of interim order for further period of eight weeks. Learned counsel for the respondent has vehemently opposed the said prayer. In the facts and circumstances of this case, it is not possible to accept the request of the petitioner for continuation of interim relief. Hence, prayer for continuation of interim relief, is rejected.

Writ petition dismissed.

Union Of India v. B.C Biyani .

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Union Of India v. B.C Biyani .

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