TaxTMI 
TaxTMI 
2010 (4) TMI 595
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.... entered into a contract on 14 March, 1992, being ICB Contract No 11/1992, for the construction of civil work of Pressure Shafts and Power House Complex, at Koyana Hydro Electric Project, Stage-IV. The contract work was completed by respondent within the extended period, i.e., by 31 March, 2000. However, it appears that disputes arose between the parties in respect of the work carried out by respondent in relation to (a) revision of percentages for hidden expenses, over breaks and profit for further additional cases of extract items/rate revision; (b) claim for extended stay at site; (c) revision of rate for Pressure Shaft excavation; (d) fixation of new rate on account of variation in the item of transformer hall arch concrete; and (e) fixation of new rate on account of variation in the item of transformer hall excavation. These disputes were referred to the arbitral tribunal. The arbitral tribunal made award on 26 June, 2003, and a signed copy thereof was forwarded to the appellant along with the letter dated 30 June, 2003. By the said award the arbitral tribunal awarded an amount of Rs. 17,81,25,152 to respondent and further directed that if the said amount was not paid by appel....
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....er the expiry of period prescribed in section 34(3) as that would tantamount to entertaining a challenge after and beyond the period of limitation and that the award has not been challenged by the appellant on any of the grounds sought to be urged/added through the amendment application. 9. On 9 January, 2009, learned Single Judge dismissed the application for amendment in the memorandum of arbitration appeal. Learned Single Judge held that the ground not initially raised in a petition for setting aside the arbitral award cannot be permitted to be raised beyond the period of limitation prescribed in section 34(3). It was also observed that the proposed amendments in the memorandum of arbitration appeal are not even sought to the grounds contained in the application under section 34. 10. Mr. Shekhar Naphade, learned senior counsel for the appellant, submitted that there is no nexus between pleadings and limitation and it is the relief that determines the limitation. The grounds/objections in the petition under section 34 of 1996 Act are in the nature of pleadings and any amendment thereto must be guided by the same principles which govern amendments to the pleadings. He heavil....
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.... submitted that Bombay High Court in Vastu Invest and Holdings (P) Ltd., Mumbai v. Gujarat Lease Financing Ltd., Mumbai [2001] 2 Arb LR 315 (Bom) has rightly held that new ground/s cannot be permitted to be introduced into an arbitration petition for setting aside of the award beyond the period of four months stipulated in section 34(3) of the 1996 Act. He also relied upon decisions of this court in Madan Lal v. Sunder Lal and another AIR 1967 SC 1233; Bijendra Nath Srivastava v. Mayank Srivastava [1994] 6 SCC 117 and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi [1987] Supp SCC 939. 13. Mr. Ashok Desai submitted that more than five years after the award, the appellant was not entitled to seek amendment in the memorandum of arbitration appeal by adding new grounds which were not taken in the application for setting aside the award. He, thus, submitted that High Court was not unjustified in rejecting the application for amendment in the memorandum of arbitration appeal. 14. Pleadings and particulars are required to enable the court to decide true rights of the parties in trial. Amendment in the pleadings is a matter of procedure. Grant or refusal thereof is in the discretion o....
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....he alternative, a claim for damages for breach of contract for non-delivery of the goods, relied upon the decision of Privy Council in Charan Das v. Amir Khan [1920] LR 47IA 255; granted leave at that stage and held: "It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice." 18. Again, a three judge bench of this court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [1957] SCR 595 in the matter of amendment of the plaint at appellate stage reiterated the legal principles exposited in L.J. Leach and Company Ltd. v. Jardine Skinner and Co. [1957] SCR 438 and Charan Das v. Amir Khan [1920] LR 47 IA 255. This court observed: "Recently, we have had occasion to consider a similar prayer for amendment in L.J. Leach and Company Ltd. v. Jardine Skinner and Co. [1957] SCR 438, where, in allowing an amendment of the plaint in an appeal be....
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.... and the proposed amendment not altering the nature of the relief sought. In the case before us, there was a similar defect in the plaint, and the trial Judge refused to allow the plaint to be amended on the ground that the period of limitation for a suit under order XXI, rule 103, of the Code of Civil Procedure, had expired. The learned judges of the High Court rightly pointed out that the mistake in the trial court was more that of the learned pleader and the proposed amendment did not alter the nature of the reliefs sought." 19. In ]ai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon [1969] 1 SCC 869, this court was concerned with a matter wherein amendment in the plaint was refused on the ground that the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation. It was held: "....Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied th....
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....1233, this court with reference to the provisions of the Arbitration Act, 1940 (for short, '1940 Act'), stated that under the scheme of 1940 Act there has to be an application to set aside the award; such application has to be made within the period of limitation and any objection to the award after the limitation has elapsed cannot be entertained. This court observed: "8. It is clear, therefore, from the scheme of the Act that if a party wants an award to be set aside on any of the grounds mentioned in section 30 it must apply within 30 days of the date of service of notice of filing of the award as provided in article 158 of the Limitation Act. If no such application is made the award cannot be set aside on any of the grounds specified in section 30 of the Act. It may be conceded that mere is no special form prescribed for making such an application and in an appropriate case an objection of the type made in this case may be treated as such an application, if it is filed within the period of limitation. But if an objection like this has been filed after the period of limitation it cannot be treated as an application to set aside the award, for if it is so treated it will be ba....
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....ent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation." 14. Here the history and scheme of the 1996 Act support the conclusion that the time-limit prescribed under section 34 to challenge an award is absolute and un-extendible by court under section 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as one of its main objectives the need 'to minimise the supervisory role of courts in the arbitral process'. This objective has found expression in section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms: "5. Extent of judicial intervention. - Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part." 15. The 'Part' referred to in section 5 is Part I of the 1996 Act which deals with domestic arbitrations. Section 34 is contained in Part I and is therefore subject to the sweep of the prohibition contained in section 5 of the 1996 Act." 24. Again in Consolidated Engineering Enterprise....
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.... to enshrine clearly that courts would, as a rule, decline to allow amendments, if a fresh claim on the proposed amendments would be barred by limitation on the date of application but that would be a factor for consideration in exercise of the discretion as to whether leave to amend should be granted but that does not affect the power of the court to order it, if that is required in the interest of justice. There is no reason why the same rule should not be applied when the court is called upon to consider the application for amendment of grounds in the application for setting aside the arbitral award or the amendment in the grounds of appeal under section 37 of 1996 Act. 26. It is true that, the division bench of Bombay High Court in Vastu Invest and Holdings (P) Ltd., Mumbai v. Gujarat Lease Financing Ltd., Mumbai [2001] 2 Arb LR 315 (Bom) held that independent ground of challenge to the arbitral award cannot be entertained after the period of three months plus the grace period of thirty days as provided in the proviso of sub-section (3) of section 34, but, in our view, by an independent ground the Division Bench meant a ground amounting to a fresh application for setting asi....