INOX LEISURE LIMITED Vs. INDO PACIFIC PROJECT LTD.

JUDGEMENT

(1.) This petition challenges the order passed by the Arbitral Tribunal in the arbitration proceedings between the petitioner and respondent thereby rejecting the proposed amendment set out in para nos. 9A and 9B of the amendment application dated 06/12/2019. Learned advocate for the respondent raised the point of maintainability of the writ petition.

(2.) The petitioner is the original respondent and the respondent is the original claimant in the arbitration proceedings. This Court, vide order dated 16/04/2019 passed in application under Section 11 of the Arbitration and Conciliation Act , 1996 (for short "the said Act") was pleased to appoint Hon'ble Mr. Justice A.P. Deshpande (Retd.) as the sole arbitrator to adjudicate the dispute between the claimant and respondent. After constitution of the Arbitral Tribunal, the claimant filed statement of claim on 05/10/2019 and the petitioner - respondent filed statement of defence and counter claim on 15/11/2019. Before filing of the statement of defence, the petitioner - respondent filed an application under Section 17 of the said Act seeking interim relief wherein the petitioner - respondent reserved its liberty to challenge the jurisdiction of the learned arbitrator. On 06/12/2019, the petitioner - respondent preferred an application under Section 23 of the said Act seeking amendment of its statement of defence thereby raising objection to the jurisdiction of the learned Arbitral Tribunal to decide the dispute on various grounds. The respondent - claimant filed reply to the said amendment application. The learned Arbitral Tribunal, after hearing both the parties, was pleased to reject the said amendment application by placing reliance on Section 16 (2) of the said Act. The said rejection is challenged in this petition.

(3.) Learned advocate for the petitioner vehemently submitted that in the application under Section 23 of the said Act, amendment can be denied on the ground of delay. Hence, the learned Arbitral Tribunal was not justified in rejecting the application seeking amendment. It is submitted that the learned Arbitral Tribunal has committed an error in rejecting the application for amendment by placing reliance on Section 16 (2) of the said Act and the learned Arbitral Tribunal has not taken into consideration Section 16 (4) of the said Act. By referring to Section 37 of the said Act, learned advocate for the petitioner submits that the orders passed under Sections 16 (2) and 16 (3) of the said Act are appealable. However, since the amendment application of the petitioner is rejected, the petitioner cannot challenge the said order by filing appeal under Section 37 of the said Act though the order is purportedly passed under Section 16 (2) of the said Act. It is submitted that the petitioner is rendered remedy-less and hence is entitled to invoke the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. It is argued that the learned arbitrator ought to have decided the application for amendment on the principles governing amendment of pleadings.