EXECUTIVE ENGINEER Vs. ASHOK KUMAR

JUDGEMENT

(1.) The present appeal has been preferred against the order dtd. 22/1/2019 passed by the Commercial Court, Jodhpur (hereinafter referred to as 'the learned Court below') in Civil Misc. 'A' Case No.47/2018 (NCV No.31/2018) whereby the objections under Sec. 34 of the Arbitration and Conciliation Act, 1996 (for short 'the Act of 1996') preferred by the appellants against the award dtd. 30/7/2016 passed by learned Arbitrator have been rejected. Vide the award, the learned Arbitrator had proceeded on to pass an award for an amount of Rs.30,23,450.00 in favour of the claimant-firm with interest @ 9% per annum till the date of award which, the non-claimant was directed to pay within 3 months failing which, further interest was awarded @ 9% per annum till the date of actual payment. The counter claim as preferred by the respondent State was rejected.

(2.) Before proceeding on merits of the present appeal, it is relevant to note that an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the present appeal and an application under Order 41 Rule 27, CPC with a prayer for taking certain documents on record have been filed by the appellants. Replies to both the applications have been filed on behalf of the respondents. Vide order dtd. 1/4/2022, it was observed that both the applications would be considered at the time of admission/hearing of the appeal.

(3.) So far as the application under Order 6 Rule 17, CPC is concerned, this Court does not find any ground to entertain the same for the following reasons : Firstly, the present is in effect an appeal under Sec. 37 of the Act of 1996, assailing the order whereby the objections under Sec. 34 of the Act of 1996, as preferred by the appellant-State, had been rejected. As it is the settled position of law, the scope of interference under Sec. 34 of the Act of 1996 is very narrow and limited and that under Sec. 37 is far more narrower. When the scope of interference in the award as passed by the Arbitrator itself is limited to the extent of the grounds as provided under Sec. 34 of the Act of 1996, the scope to permit amendment of the present appeal so as to add additional grounds qua the claims as raised by the claimant-contractor, cannot even be imagined of. Secondly, the new grounds as sought to be added in the present appeal vide the amendment application clearly pertain to the facts which were not pleaded during the arbitral proceedings. Further, all the grounds as sought to be raised now are totally factual in nature. The facts, in terms of law, are not only to be pleaded but even to be proved. Admittedly, the new facts/grounds sought to be added vide amendment application were not pleaded before the Arbitrator and hence were not proved on record. Therefore, the same cannot be permitted to be raised at this stage. The application is therefore, rejected.