JUDGMENT Gavai B.R., J.
1. By way of present petition, the petitioners are challenging the order dated 28th September 2006 passed by the learned Principal District Judge, Jalgaon, thereby rejecting the application for amendment filed by the present petitioners at Exhibit 18 in Arbitration Petition No. 202/2005 filed under Section 34 of the Arbitration and Conciliation Act, 1996 (For short, hereinafter referred as "the Arbitration Act")
2. The facts, in brief, giving rise to the present petition are as under:
It is the case of the petitioners, that there is a property dispute between the petitioners and the respondents and as such, on 21st May 1996, the said dispute came to be referred to the Arbitrator. It is the contention of the petitioners that on 2nd July 1996, the petitioners informed to the Arbitrator that the arbitration proceedings should not be proceeded further as the Arbitraror was acting with biassed mind. It is the contention of the petitioners, that on 7th July, 1996 and 3rd November, 1996, awards came to be passed by the Arbitraror without hearing the present petitioners and without giving any notice to the present petitioners. The petitioners, therefore, contended that they were not aware about the said award. In the year 2005, the execution proceedings were initiated by the respondents for executing awards dated 7th July, 1996 and 3rd November, 1996. It is the contention of the petitioners, that on 21/23rd November 2005, notices in the said proceedings were served on the petitioners and, therefore, the petitioners for the first time came to know that such awards are passed in the year 1996. On 29th November 2005, the petitioners have filed Arbitration Petition No. 202/2005 before the learned Principal District Judge, Jalgaon, challenging the award dated 7th July 1996. It is the contention of the petitioners, that the said petition was filed hurriedly and, therefore, due to oversight the petitioners could not challenge the award dated 3rd November, 1996. The petitioners, therefore, filed an application for amendment on 23rd January, 2006 thereby seeking to amend the petition so as to challenge the award dated 3rd November 1996. The said application was resisted by the respondents by filing reply dated 27th January, 2006. On 30th June, 2006, the learned Principal District Judge, Jalgaon, rejected the application for amendment holding that the amendment application was barred by limitation. The petitioners, therefore, approached this Court by way of Writ Petition No. 5502/2006. This Court vide order dated 30th June, 2006 set aside the order dated 30th June, 2006 and remanded the matter to the learned Principal District Judge for consideration afresh. After reconsidering the matter, the learned Principal District Judge, Jalgaon, passed the impugned order dated 28th September 2006, thereby rejecting the application filed by the present petitioners. Hence, the present petition.
3. Heard Mr. R.N. Dhorde, learned Counsel appearing on behalf of the petitioners and Mr. A.S. Bajaj, learned Counsel appearing on behalf of respondent No. 1 / caveator.
4. Mr. R.N. Dhorde, learned Counsel appearing on behalf of the petitioners, submits that the learned trial Court has grossly erred in rejecting the application of the present petitioners. Relying on the provisions of Section 34 of the Arbitration Act, he submits that an application for filing and setting aside the award could be filed within three months and delay can be condoned to the extent of 30 days. He submits that the notices were received on 23rd November, 2005. He submits that the application for amendment came to be filed on 23rd January, 2006 and, therefore, the challenge was well within time. He submits that the period as contemplated under Section 34 of the Arbitration Act has to commence on the date on which notice in the execution proceedings was received by the present petitioners and the date of the award was irrelevant as it was passed without hearing the parties.
5. Mr. R.N. Dhorde, learned Counsel for the petitioners, has placed reliance on the judgment of the Apex Court in case of State of Goa v. Western Builders , in support of the proposition that the provisions of the Limitation Act are applicable to the proceedings under the Arbitration Act. He has also relied upon the judgment of the Apex Court in case of Ch. Ramalinga Reddy v. Superintending Engineer and Anr. , in support of the proposition that the date of service of notice of filing of the award, can be the point of time of commencement of limitation for setting aside an award only when the notice is given by the court. He submits that the intimation from the other party without any direction by the court to do so, would not be effective for the said purpose. He has also relied upon the judgment of learned Single Judge of this Court in case of HMP Engineers Ltd. and Ors. v. Rallis India Ltd. and Anr. , in support of the proposition that the time limit as set out in Section 34(3) starts where the award is amended from the date when the award was amended and copy served. Reliance is also placed on the judgment of learned Single Judge of this Court in case of Hari Shankar Singhania and Ors. v. Dr. Gaur Hari Singhania and Ors. 2002 (Supp. 2) Bom.C.R. (O.S.) 381 : 2003(1) All. M.R. 548 in support of the proposition that the question regarding delay cannot be relevant while deciding the application for amendment.
6. On the contrary, Mr. A.S. Bajaj, learned Counsel appearing on behalf of respondent No. 1 / caveator, submits that the petitioners have failed to come to the Court with clean hands. He submits that in various proceedings between the present petitioners and the respondents, the petitioners have not only admitted regarding passing of the award but there is an admission at various points of time regarding the knowledge of the arbitration award. He submits that the said application was filed only in order to delay the execution of the award and deprive the respondents of the benefit of the award. He submits that the party who has approached this Court with unclean hands is not entitled to equitable relief.
7. It is to be noted that this Court is not considering the application of the present petitioners as a first Court. This Court is only considering the correctness of the discretion exercised by the learned trial Court in rejecting the application for amendment. In that view of the matter, this Court would interfere in the extraordinary jurisdiction under Article 227 of the Constitution of India, only if it is found that the view taken by the learned trial court was a possible view or discretion is exercised by the learned trial Court in a perverse manner.
8. It can be found from the order of the learned trial Court, that the present petitioners, according to their own pleadings, have admitted that they became aware of passing of both the awards on 11th August 2005. The learned trial court has, therefore, found that since the application for amendment came to be filed on 23rd January 2006, the same was ex facie beyond limitation as provided under Section 34 of the Arbitration Act and, therefore, rejected the application. From the perusal of the record, it is difficult to come to the conclusion that the said finding is perverse or impossible.
9. From the record, it can be seen that one Kalpita Builders Pvt. Ltd., has filed Regular Civil Suit No. 106/2003 through the present petitioners. It appears that the present respondents have filed an application for taking action under Section 340 of the Code of Criminal Procedure, against the present petitioners. A say has been filed to the said application by the present petitioners on 4th November 2006. The petitioners have made following averments in the said say as under:
The plaintiff further submits and says that on 3-11-1996, the rival parties entered in an Arbitration by appointing Mr. Vrajlal Jinabhai Patel, Mr. Bhikalal Nathalal Patel and Mr. Surendra Vrajlal Patel (i.e. elder brother, sister's husband, and Nephew). These learned Arbitrators passed their Award dated 3-11-1996. It was this Award which was submitted by the plaintiff to the Bank in July 1997. As there was no 'Award' in the year 1996, more particularly, July 1996, there is no question of its submission to the Bank. The year 196/1996 appearing in the said written statement is merely a typewriting mistake. It ought to have been '1997'.
The present petitioner has also issued a notice to the present respondent on 28th May, 1997. The relevant averment in the said notice reads thus:
But having lost faith and trust between members of both the groups disputes and differences arose between your family members and my client's family members. Therefore, my client and you had decided to resolve the same amicably whereby you on behalf of your family members and my client on behalf of his family members entering into a Memorandum of Understanding dated 29-6-1996. Further there were disputes and differences remaining between you and my client and looking to the strained relations it was decided that the Arbitrators / Lavads be appointed to resolve the same and therefore a team of arbitrators was appointed who have also given their decision / award on 3-11-1996.
It can thus be seen that the present petitioner is adopting tactics of approbate and reprobate. In the present proceedings, though he denies knowledge of award 3rd November, 1996, in the other proceedings, he has relied on the said award and sought to take advantage on the basis of the said award. There are various other documents on which the learned Counsel for the respondent has sought to place reliance in support of his contention that the award was passed after hearing the petitioner and that he has also signed in token of acceptance of the said award. However, since the learned trial court has arrived at a finding that the petitioners have themselves admitted that they were aware about the award dated 3rd November 1996 and the same was substantiated from their pleading in Regular Civil Suit No. 106/ 2005, I find that the finding arrived at by the learned trial court is based on cogent and relevant material on record. In that view of the matter, I am not inclined to go into the other documents sought to be relied on by the present respondent, as it may prejudice rights of either of the parties.
10. In so far as reliance placed on the judgment, of the Apex Court in case of State of Goa v. Western Builders (supra), the said judgment does not support the contention of the petitioners. On the contrary, it would reveal that in the said judgment, the Apex Court has found that the applicability of the Limitation Act is excluded in its operation to Section 34(3) of the Arbitration Act. The decision of the Apex Court in case of Ch. Ramalinga Reddy v. Superintending Engineer and Anr. (supra), would also be of no assistance to the facts of the present case, inasmuch as it relates to the provisions of the old Act. The judgment of the learned Single Judge of this Court in case of HMP Engineers Ltd. and Ors. v. Rallis India Ltd. and Anr. (supra) is also not applicable to the facts of the present case as it relates to the issue as to when the limitation would commence if the award is amended.
11. In so far as judgment in case of Hari Shankar Singhania and Ors. v. Dr. Gaur Hari Singhania and Ors. (supra), the same is also not applicable to the facts of the present case inasmuch as the said judgment lays down that only when upon perusal of the pleadings, it is difficult for the court to ascertain as to whether the proposed amendment is or is not barred by limitation, the Court may not shut out an amendment. However, in the facts of the present case, the learned Principal District Judge on appreciation of pleadings before him, has found that the proposed amendment is squarely hit by Section 34(3) of the Arbitration Act. As already stated herein above, the said finding is based on cogent and relevant material on record and cannot be said to be perverse finding. In that view of the matter, reliance placed by the learned Counsel for the petitioners on the judgments supra is of no assistance to the facts of the present case. Hence, there is no merit in the petition.
12. In the result, the Writ Petition fails and the same is dismissed summarily.