Devendra Kumar Garg vs The State Of Madhya Pradesh
2021 Latest Caselaw 4878 MP

                                          1

 Miscellaneous Petition No.1704/2021 (Devendra Kumar Garg Vs. State of M.P. and
                                    Another)


              HIGH COURT OF MADHYA PRADESH:
                           BENCH AT GWALIOR
                     Miscellaneous Petition No.1704/2021
         Devendra Kumar Garg                             ...PETITIONER

                                       Versus

         State of Madhya Pradesh & Another ...........RESPONDENTS

--------------------------------------------------------------------------------------

CORAM DB:

               Hon'ble Shri Justice Sheel Nagu & Hon'ble Justice Shri

               Vishal Mishra

--------------------------------------------------------------------------------------

         Shri Harish Dixit, learned counsel for the petitioner.

         Shri Ankur Mody, learned Additional Advocate General for the

State.

--------------------------------------------------------------------------------------

Whether approved for reporting : NO


--------------------------------------------------------------------------------------

Reserved on :                 23.08.2021 28.10.2015
Date of decision :            01.09.2021

-----------------------------------------------------------------------------------

                                   ORDER

(01.09.2021)

Per : Vishal Mishra, J.

With the consent of the parties, the matter is finally heard.

Miscellaneous Petition No.1704/2021 (Devendra Kumar Garg Vs. State of M.P. and Another)

The present petition under Article 227 of the Constitution of

India is being filed challenging the order dated 10.02.2021 (Annexure

P-1) passed in RC No.85/2016 by the M.P. Arbitration Tribunal Bhopal,

whereby the applications filed by the petitioner seeking amendment in

petition and for producing additional doucuments were rejected.

Learned counsel for the petitioner has submitted that petitioner is

registered contractor and was awarded work of Asphalting on Karahal-

Sarari-Bargawan Road 16 km to 23 km = 8 km. The petitioner

deposited earnest money of Rs.114500/- and an amount of

Rs.3151100/- was deducted from 1st and 2nd running bills of the

petitioner as Security Deposit. The petitioner had completed the work

within prescribed time. Third and final bill to the tune of Rs.78,88,655/-

was prepared by the respondents on 15.04.2013, after actual

measurements of the work but the payment was not made. The

Executive Engineer informed that the work is found unsatisfactory and

demanded heavy amount on account of recovery. The petitioner

challenged the action of respondent before the M.P. Arbitration

Tribunal Bhopal claiming amount of final bill, security deposit

including earnest money with interest. Reference Petition was

registered as Reference Petition No.85/2016. The respondent has

submitted written statement denying the claims of the petitioner. The

petitioner has filed an application for amendment in the reference

Miscellaneous Petition No.1704/2021 (Devendra Kumar Garg Vs. State of M.P. and Another)

petition which was allowed on 01.04.2019.

The reference petition was listed for final arguments on

13.09.2019 before the Principal Bench of the Arbitration Tribunal

comprising of Chairman, Vice Chairman and Technical Member and on

13.09.2019, the Bench has pleased to accept the prayer of the petitioner

granting time to file documents in support of his submission that

between 07.03.2013 and 15.04.2013 the contract had revived. The

Bench was satisfied with the arguments and the petitioner was

permitted to submit the documents in this regard and adjournment was

granted to him. Due to pandemic Covid-19 and lockdown situation in

entire country, the matter was not taken up for more than one year. The

petitioner submitted an application on 08.01.2021 seeking permission

to file additional documents and another application seeking permission

to make amendment in the reference petition incorporating pleading

about the said documents. The applications have been marked as

I.A.No.3 and 4. The respondents have not chosen to submit their reply

of the applications. Both the applications filed by the petitioner were

dismissed by the Bench. It is pointed out that the Larger Bench found it

appropriate to grant opportunity to the petitioner to file certain

documents. It is argued that the Tribunal, by the impugned order dated

10.02.2021, has, in substance, reviewed its own earlier order dated

13.09.2019 passed by the Larger Bench, which is not permissible in

Miscellaneous Petition No.1704/2021 (Devendra Kumar Garg Vs. State of M.P. and Another)

law. It was argued that the contract terminated was revived whereas the

proposed amendment I.A.No.3 (Annexure P/6) is about the process and

competency as well as legality and validity of the revival of the

contract. Theses facts are necessary for just and proper adjudication of

the dispute as was observed by the Larger Bench of the Tribunal on

13.09.2019. In such circumstances, the amendment should have been

allowed and the petitioner be permitted to bring the documents on

record which was produced alongwith I.A.No.4 (Annexure P/7).

Learned counsel for the petitioner has relied upon the judgments

passed by the Supreme Court in the case of State of Bihar and Others

vs. Modern Tent House and Another, 2018 (1) MPLJ 570 and also in

the case of Abdul Rehman and Another vs. Mohd. Ruldu and

Others, 2012 (11) SCC 341 and in the case of Lakha Ram Sharma

Vs. Balar Marketing Pvt. Ltd., 2008 (17) SCC 671 and has argued

that it is settled law that while considering whether the amendment is to

be granted or not, the Court does not go into the merits of the matter

and decide whether or not the claim made therein is bonafide or not.

The question is that whether the aforesaid amendment is necessary for

just and proper disposal of the case. In such circumstances, he has

prayed for setting aside the impugned order and further allowing the

applications I.A.No.3 and I.A.No.4 for carrying out the amendment and

bringing the subsequent documents on record.

Miscellaneous Petition No.1704/2021 (Devendra Kumar Garg Vs. State of M.P. and Another)

Per contra, learned counsel appearing on behalf of the State, by

filing a short return, has supported the impugned order and has

contended that the matter is at the final hearing stage. Though the

Tribunal at the time of final hearing, granted time to petitioner, pointing

out the certain developments. The matter was fixed on 13.09.2019 and

it was argued before the Tribunal that in pursuance to paragraph 15 of

the reply, the purported termination order was withdrawn by the

Executive Engineer himself and the work was done by petitioner and

final bill was prepared in the month of April, 2013. One opportunity

was granted by the Tribunal to the petitioner to bring on record the

documents. Thereafter, the petitioner kept mum for considerable period

and only 08.01.2021 i.e. after more than one year, the aforesaid

I.A.No.3 and I.A.No.4 were filed before the Tribunal. The Tribunal has

considered the aspect and observed that on the earlier occasion vide

order dated 01.04.2019, the amendment application filed by the

petitioner was allowed and on similar facts the present application for

amendment has filed as I.A.No.3 which appears to be repetition of the

earlier amendment and of no use and the document produced with

I.A.No.4 are not necessary for adjudication of the real dispute.

Therefore, the applications were rejected. It is argued that the aforesaid

applications are being filed just to delay the proceedings before the

Tribunal. It is submitted that the impugned order dated 10.02.2021

Miscellaneous Petition No.1704/2021 (Devendra Kumar Garg Vs. State of M.P. and Another)

(Annexure P/1) is a well reasoned order and the same does not call for

any interference in the present petition. He has prayed for dismissal of

the present petition.

Heard the learned counsel for the parties and perused the record.

Apart from the admitted facts in the petition, the matter was kept

for final argument on 13.09.2019. During the course of the arguments,

the Full Bench of the Tribunal has accepted the prayer of the petitioner

and granted time and has observed as under:-

"13.09.2019

Shri P.K.Jain, Adv., for the petitioner. Ms. Preethi Shrivastava, Adv., for the Respondents.

The case is listed for final arguments. The petitioner's counsel states that as per averments of the written statement the contract was terminated on 7.3.2013 and the final bill was prepared on 15.4.2013. On the earlier date i.e. 14.8.2019 in the course of arguments the question arose that when the contract was terminated on 7.3.2013 how the final bill was prepared on 15.4.2013. The petitioner's consel further submits that in between 7.3.2013 to 15.4.2013 the contract was revived and he would submit a document in this regard. Therefore, one adjournment be granted for the same for just and proper decision of the case. The prayer is accepted.

List on 21.10.2019 for submission of the aforesaid statement and the remaining final arguments.

            (M.K.Mudgal) (Sushma Khosla)               (R.K.Vyas)
             Chairman    Vice Chairperson              Member

The aforesaid order was passed by the Full Bench of the Tribunal

Miscellaneous Petition No.1704/2021 (Devendra Kumar Garg Vs. State of M.P. and Another)

considering the fact that between 7.03.2013 to 15.04.2013, the contract

was revived. Thereafter, due to pandemic Covid-19 scenario and

lockdown in the entire country, the matter could not be taken up.

Almost after more than one year, the matter was taken up for

consideration and on 08.01.2021, the petitioner has submitted the

applications seeking permission to file the additional documents

producing three documents and another application for seeking

amendment in the petition incorporating the pleadings of the said

documents. The matter was taken up for consideration of the

applications on 10.02.2021. The Full Bench of the Tribunal was

satisfied with the arguments of the petitioner on 13.09.2019 and

considering the question that when the contract was terminated on

07.03.2013 then how the final bill was prepared on 15.04.2013 has

permitted petitioner to bring the documents on record and adjournment

was granted to him. Thereafter, the impugned order was passed

rejecting both the applications by the Bench comprising of two member

of the Tribunal. By passing the order dated 10.02.2021, it is virtually

amounting to reviewing that the earlier order which was passed by the

the Larger Bench on 13.09.2019, which is not permissible in law. Even

otherwise the amendment as proposed by the petitioner, is observed by

the Full Bench is to be just and proper for final adjudication of dispute.

In such circumstances, rejecting the applications is unjustified.

Miscellaneous Petition No.1704/2021 (Devendra Kumar Garg Vs. State of M.P. and Another)

The law with respect to the amendment is far settled by the

Hon'ble Supreme Court in the case of Abdul Rahman (supra) has held

as under:-

"15. We reiterate that all amendments whcih are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercisesd in the larger interests of doing full and complete justice between the parties."

Further in the case of State of Bihar (supra) has held as under:-

"8. We have perused the amendment application filed by the appellants. We find that firstly, the proposed amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement;

secondly and in other words, it is in the nature of amplification of the defense already taken; thirdly, it does not introduce any new defense compared to what has originally been pleaded in the written statement; fourthly, if allowed, it would neither result in changing the defense already taken nor will result in withdrawing any kind of admission, if made in the written statement; fifthly, there is no prejudice to the plaintiffs, if such amendment

Miscellaneous Petition No.1704/2021 (Devendra Kumar Garg Vs. State of M.P. and Another)

is allowed because notwithstanding the defense or/and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs; and lastly, since the trial is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should have been allowed by the Courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises."

In the case of Lakha Ram Sharma (supra) has held as under:-

"4. It is settlled law that while considering whether the amendment is to be granted or not, the Court does not go into the merits of the matter and decide whether or not the claim made therein is bonafide or not. That is a question which can only be decided at the trial of the Suit."

Considering the overall facts and circumstances of the case and

also the law laiddown by the Hon'ble Supreme Court with respect to the

amendment and the fact that the order dated 10.02.2021 (Annexure P/1)

was passed by the Bench of the Tribunal comprising of two member of

the Tribunal rejecting the applications I.A.No.3 and I.A.No.4 is

unsustainable and is hereby set aside. Both the applications filed by the

petitioner being I.A.No.3 and I.A.No.4 are allowed. The petitioner is

permitted to carry out the amendment and documents are taken on

record.

With the aforesaid observations, the present petition stands

Miscellaneous Petition No.1704/2021 (Devendra Kumar Garg Vs. State of M.P. and Another)

allowed and disposed of.

E-copy of this order be provided to the petitioner and it is made

clear that E-copy of this order shall be treated as certified copy for

practical purposes in respect of this order.

                          (Sheel Nagu)                         (Vishal Mishra)
AK/-                         Judge                                 Judge
       ANAND KUMAR
       2021.09.02
       13:50:10 +05'30'