Esteem Mercantile Pvt. Ltd. vs K.H. Parekh And Anr.
2001 Latest Caselaw 436 Bom

JUDGMENT

S. Radhakrishnan, J.

1. By these Chamber Summonses the Petitioners are seeking to amend the original Arbitration Petition Nos. 364/2000 and 363/2000 so as to add certain grounds viz. to add the grounds enumerated in Exh. 'A' to the Chamber Summons No. 284/2001 so far as Arbitration Petition No. 364/2000 is concerned, and to add the grounds mentioned in the Schedule annexed to the Chamber Summons No. 285/2001 so far as Arbitration Petition No. 364/2000 is concerned.

2. Mr. Narulla, the learned Counsel for the Petitioners has submitted that though at the time when the petitions were dictated, the grounds were not dictated and on the next date, the grounds were dictated to another stenographer, but the same were omitted to be included in the Petitions which were filed on 6th October, 2000. Mr. Narulla contended that in the interest of justice these grounds should be allowed to be added by way of an amendment to the petitions. Otherwise, serious prejudice would be caused to the petitioners.

3. Mr. Mukri, the learned Counsel for the Respondents has raised the preliminary objection that such an amendment can never be allowed i.e. adding of new grounds to the Arbitration Petitions would be beyond the period of limitation as prescribed under Section 34 of the Arbitration Act, 1996. Mr. Mukri referred to and relied upon the Division Bench Judgment of this Court in Appeal No. 683/2000 in Chamber Summons No. 871/2000 in Arbitration Petition No, 121/2000 and Appeal No. 618/2000 in Arbitration Petition No. 121/2000 Vastu Finvest and Holdings Pvt. Ltd. vs. Gujrat Lease Financing Limited, dated 9th November, 2000 (since reported in 2001(2) Mh.LJ. 565). In the aforesaid judgment, the Division Bench dealt with the learned Single Judge's order whereby the learned Single Judge had declined to entertain the Chamber Summons to add certain grounds, inasmuch as the said Chamber Summons was taken out after the period as prescribed under Section 34(3) of the Arbitration and Conciliation Act. The Division Bench had fully concurred with the view of the learned Single Judge dismissing the Chamber Summons on the ground that the same was beyond the period of limitation as prescribed under Section 34(3) of the Act. The Division Bench has observed in paragraph 13 of the said judgment as under:--

"In our view the Chamber Summons was rightly dismissed. If the point of jurisdiction was an independent ground of attack on the award, then not having been raised within the period prescribed by Sub-section (3) of Section 34, it could not have been entertained by the Court at all. If it was already contained in the Arbitration petition, then Chamber Summons was wholly redundant. Either way, the Chamber Summons was liable to fail."

4. Mr. Mukri referred to and relied upon another judgment of a learned Single Judge of this Court in the case of Pushpa Mulchandani and others vs. Admiral Radhakrishin Tahilani 2000 (4) Mh.LJ 819. In para 29 of the said judgment, a similar view is taken. Para 29 reads as under:--

"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 the section has expired. That would tantamount to entertaining a fresh petition beyond the period of limitation. , Madan Lal (dead) by his legal representative v. Sunder Lal and another 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."

5. Mr. Narulla firstly contended that Section 5 of the Limitation Act, 1963 gives a discretion to this Court to condone, and the provisions of Section 5 should override the provisions of Section 34(3) of the Arbitration and Conciliation Act, 1996 inasmuch as the Sub-section (3) of Section 34 of the Arbitration and Conciliation Act, 1996 does not specifically provide to the effect that anything contained under Section 5 of the Limitation Act will not apply. Therefore, the learned Counsel for the Petitioner contends that Section 5 of the Limitation Act should prevail over Sub-section (3) of Section 34 of the Arbitration and Conciliation Act, 1996 i.e. even though the proviso to Sub-section (3) of Section 34 expressly uses the words "but not thereafter" still this Court should construe the same, in a way that under Section 5 of the Limitation Act the Court's power to condone the delay should prevail.

6. Secondly, the learned Counsel for the Petitioners Mr. Narulla contended that this is only an amendment to add a ground and not an application under Section 34 of the Arbitration Act for setting aside the arbitral award, which was filed very much within time and what is sought to be done is to give better particulars of grounds which are already taken in the petition and as such, subsection 3 of Section 34 of the Act ought not to come in the way. According to him, the judgment of Division Bench referred to above by the learned Counsel for the Respondents does not deal with Section 5 of the Limitation Act, and as such, should not apply in the instant case.

7. After having heard the learned Counsel at length, the main contention of Mr. Narulla is that inspite of the proviso to Sub-section (3) of Section 34 of the Arbitration and Conciliation Act, 1996 which provides the words- "but not thereafter" still Section 5 of the Limitation Act should prevail.

8. I do not understand how Section 5 of the Limitation Act could prevail when expressly there is a bar by using the words "but not thereafter" in the said proviso to Sub-section (3) of Section 34 of the Arbitration and Conciliation Act, 1996. In fact, the said proviso provides as under :--

If the Court is satisfied that 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.

9. Obviously, the present proviso in Section 34(3) is very much analogous to Section 5 of the Limitation Act and in the said discretion of condonation of delay, Section 5 does not put any limitation with regard to the period on the Court's power to condone the delay in the interest of justice. On the contrary, under Section 34(3) such a discretion has been given to the Court to condone the delay for a sufficient cause,' but that discretion cannot be beyond the period of 30 days, which is made explicitly clear by use of the words "but not thereafter" in the proviso thereto. Therefore, I do not find any substance'in Mr. Narulla's first contention that Section 5 of the Limitation Act, 1963 ought to prevail over the proviso to Sub-section (3) of Section 34 of the Arbitration and Conciliation Act, 1996.

10. As far as the second objection of Mr. Narulla is concerned that what is sought to be amended is to add certain grounds, so as to give better particulars, and as such the same ought not to be barred under the proviso to Section 34(3) of the Act. As has been held by the Division Bench, in the aforesaid case, if the ground is already in existence there is no need to add such a ground and if the ground is not there then the additional ground cannot be added as the same would be hit by proviso to Sub-section (3) of Section 34 of the Arbitration and Conciliation Act.

11. The last contention of Mr. Narulla is that the aforesaid Division Bench does not deal with Section 5 of the Limitation Act, and therefore it cannot apply in the present case. It is true that the said judgment does not expressly deal with Section 5 of the Limitation Act, however, the said judgment makes it abundantly clear that the Courts discretion to condone the delay has been limited by the proviso to Sub-section (3) of Section 34 of the Arbitration and Conciliation Act, 1906 by using the words "but not thereafter" in the proviso thereto. On the contrary, Section 5 of the Limitation Act does not put any limitation on the Court's discretionary power with regard to the period of condonation of delay. However, under the proviso to Sub-section (3) of Section 34 of the Arbitration and Conciliation Act, 1996 the period has been restricted as 30 days.

12. Under the aforesaid facts and circumstances, I do not find any substance in the present Chamber Summonses. Hence, both the Chamber Summonses stand dismissed.

13. Parties to act on an ordinary copy of this order duly authenticated by the Chamber Registrar.