UNION OF INDIA Vs. B C BIYANI

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. By consent, the petition is taken up for hearing immediately.

(2.) This petition is filed challenging the order passed by the III Joint C.J.S.D. Jalgaon below Exh.70 in C.M.A. No. 593 of 2005 dated 21-4-2008.

(3.) The petitioner herein filed Civil Arbitration Application No. 593 of 2005 before the Joint C.J.S.D. Jalgaon under Order VI, Rule 17 of Civil Procedure Code and section 151 of Civil Procedure Code. It is the case of the petitioner that the petitioner has filed Civil Arbitration Application No. 593 of 2005 and the said application is pending for arguments before the trial Court. It is further case of the petitioner that on going through the memo of petition, he feels that it is necessary to amend the petition in the interest of justice, therefore, by way of filing above mentioned application, the petitioner prayed that the amendment may kindly be allowed as the amendment is not going to change the nature of the petition and no prejudice would be caused to the parties concerned if the application for amendment is allowed. The petitioner further prayed that the amendment is necessary for the purpose of just decision of the case. Therefore, the petitioner prayed that in the original petition in para 13 after sub clause "V" new sub-clauses "W to Z" may be allowed to be added and in the said subclauses following words may be permitted to add :- "W) That the Arbitrator mis-conducted himself in awarding the arbitration award against the petitioner, which can be proved from the evidence on record. That mis-conduct of the Arbitrator amounts to miscarriage of justice. X) The arbitral award is in conflict to the public policy of India, which is liable to be set aside. Making of the award was inducted or affected by fraud in violation of the Act. Y) The Hon'ble Court can direct the Arbitrator under section 54 of Arbitration Act to receive the evidence afresh on the grounds of exhibiting documents of Xerox copies and also for giving the opportunity to the petitioner to lead the evidence in that behalf. The subject-matter of the dispute i.e. granting of the interest was not capable of settlement by arbitration under the law in force. X) That the award contain decision on the matter beyond the scope of the submission to the arbitration and the same is liable to be set aside. According to the petitioner, the amendment sought to be inserted instead of sub-clause "V" and new sub-clause W, X, Y, Z, would not change the nature of the main petition, therefore, the petitioner prayed that the application may be allowed. Learned counsel appearing for the petitioner invited my attention to the grounds taken in the petition and submitted that the application for amendment filed by the petitioner should have been allowed. Learned counsel submitted that the trial Court while rejecting application for amendment has placed reliance on the reported judgment of this Court in the case of Pushpa P. Mulchandani (Mrs.) and others vs. Admiral Radhakrishin Tahilani (RETD) and others, reported in 2000(4) MhLJ 819 = 2001(1) Bom CR 592, and more particularly the observations in the said judgment that, " the application for setting aside the award under section 34 of the Act has to be made within 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, is expired. That would tantamount to entertaining a fresh petition beyond the period of limitation." According to the learned counsel, in view of the subsequent pronouncement of the Apex Court in the case of ITI Ltd. vs. Siemens Public Communications Network Ltd., reported in (2002) 5 SCC 510 and in the case of Neeldeep Investments Private Limited (I) vs. Custodian and others, reported in (2008) 13 SCC 538, the law laid down by this Court in the aforesaid judgments is no more good law. The said judgments should not have been relied upon by the Court below while rejecting the application filed by the petitioner herein. According to the learned counsel, the provisions of Civil Procedure Code as well as the provisions of Limitation Act are very well applicable to the proceeding under section 34 of the said Act, and therefore, the Court below was not right in not referring to the provision of Civil Procedure Code and also the provisions of Limitation Act. Therefore, the learned counsel would submit that the Court below is not correct in rejecting the application for amendment. Learned counsel invited my attention to the pleading in the petition, grounds therein and the annexures thereto and submitted that in the interest of justice, the petition deserves to be allowed.