1. Heard learned Counsel for the parties.
2. This chamber summons has been taken out in a pending commercial arbitration petition, seeking amendment to the original petition. The schedule of amendment annexed to the chamber summons indicates that the Petitioner seeks to firstly add a recitation of how the award was remitted to the panel of arbitrators under Section 33 of the Arbitration and Conciliation Act, 1996 (“Act”) and what happened before the arbitrators in pursuance of such remission. The schedule, secondly, seeks to add various further grounds of challenge to the impugned award. Whilst the narration of further proceedings in arbitration, as a result of the application under Section 33 made on 20 April 2018, does not pose any serious challenge, it merely being a historical narration, the real challenge arises as a result of additional grounds of challenge sought to be introduced in the petition. The arguments at the Bar revolve around these additional grounds.
3. The grounds sought to be added in the petition are of three categories. The first category of grounds, i.e. grounds R to TT (except SS), are all pertaining to the challenge of the Petitioner to its counter claim being rejected by the arbitrators. On the other hand, grounds SS to WW and III are in the nature of further elaboration of existing grounds of challenge concerning the treatment to be given to the delay alleged on the part of the Respondents-contractors and liquidated damages recovered by the Petitioner employer as a result of that delay. The third category of grounds are grounds pertaining to various individual claims of the Respondents-contractors, which were not raised during the course of execution of the contract work and which did not form part of the contract, but were claimed as additional works or variations. Each of these three categories is considered separately in the following order, since different considerations are involved according to the category which the grounds fall in.
4. Before we take up individual grounds for consideration, it is apposite to notice the legal principles to be applied by courts whenever amendments are sought or, in particular, additional grounds are sought to be raised in the original arbitration petition after expiry of the maximum permissible period of limitation, that is, 90 days of the receipt of the award plus the extended period of 30 days. The most authoritative statement of law in this behalf is to be found in the case of State of Maharashtra Vs. Hindustan Construction Company Limited (2010) 4 SCC 518). The Supreme Court considered in that case the legal position governing amendment of pleadings generally in suits and appeals and whether the same principles govern amendments of applications for setting aside arbitral awards. The court, in the first place, noted the position of amendment of pleadings generally. The court observed that the purpose of pleadings and particulars was to enable the court to decide true rights of the parties in a trial; amendment was a matter of procedure and its grant or refusal was something which was within the discretion of the court, though like any other discretion, it had to be exercised consistent with settled legal principles. The court then considered various legal principles to be invoked in such a case. The court considered various rulings including the cases of Ganesh Trading Co. Vs. Moji Ram (1978) 2 SCC 91), Clarapede & Co. Vs. Commercial Union Association (1883) 32 WR 262(CA), Charan Das Vs. Amir Khan (1919-20) 47 IA 255), L.J. Leach & Co. Ltd. Vs. Jardine Skinner (AIR 1957 SC 357)and Pirgonda Hongonda Patil Vs. Kalgonda (AIR 1957 SC 363).
5. In Ganesh Trading Co.’s case, the Supreme Court had held that procedural law was intended to facilitate, and not to obstruct, the course of substantive justice; provisions relating to pleadings in civil cases were meant to give each side intimation of the other side’s case so that it could be met and also to enable the courts to determine what was really at issue between the parties, and to prevent deviations from the course which litigation on particular causes of action must take. In Clarapde & Co.’s case, the court of appeal had observed that however late the proposed amendment, it should be allowed if it could be made without injustice to the other side. In Charan Das’s case, the Privy Council had ruled that although the power of the court to amend a plaint in a suit should not, as a rule, be exercised, where the effect was to take away from the defendant a legal right accrued to him by lapse of time, yet there were cases in which that consideration was outweighed by special circumstances of the individual case. In L.J. Leach & Co., the Supreme Court had held that the court would decline to allow an amendment, if a fresh suit on the amended claim would be barred by limitation on the date of the application for amendment, but that was only a factor to be taken into account in exercise of the court’s discretion to order an amendment; it did not effect the power of the court to order it, if that was required in the interests of justice. The same position was reiterated by the Court in the case of Pirgonda Hongonda Patil (supra).
6. After considering the law, thus, generally in the case of pleadings, the Court in Hindustan Construction Company’s case considered whether the same principles would govern the amendment of grounds in an application for setting aside an arbitral award. The Court observed that there was no doubt that an application for setting aside an arbitral award under Section 34 of the Act had to be made within the time prescribed under Sub-section (3) of Section 34 and not thereafter. The Court observed that what was important was to see whether incorporation of additional grounds by way of amendment of the original application filed under Section 34 tantamounted to filing of a fresh application, having regard to the circumstances of the case. The court also considered the law stated in L.J. Leach Co. (supra) that even if the proposed amendments would have been barred, if presented as a fresh case, that would but only be a factor for consideration in exercise of the court’s discretion as to whether leave to amend should be ordered, and would not affect the power of the court to order it, if that was what was required in the interest of justice. The Supreme Court, particularly, considered the Division Bench judgment of this court in the case of Vastu Invest & Holdings (P) Ltd Vs. Gujarat Lease Financing Ltd. (2001) 2 Arb. L.R. 315 (Bom), where the Division Bench had held that no independent ground of challenge to an arbitral award could be entertained after the period of three months plus the grace period of thirty days provided in the proviso to Sub-section (3) of Section 34. The Supreme Court held that the words “independent ground” used in this statement of law meant a ground amounting to a fresh application for setting aside an arbitral award. The court held that the dictum was not intended to lay down an absolute rule that in no case amendment to an application for setting aside an arbitral award could be made after the expiry of the period of limitation provided in Section 34(3).
7. Another instructive judgment on this point is to be found in the well known case of A.K. Gupta and Sons Ltd Vs. Damodar Valley Corporation (1966) 1 SCR 796). Though this judgment was in the context of amendment of a plaint and in particular, addition of a relief in the plaint, the basis for allowing or refusing such amendment considered by the Supreme Court has been quite instructive. The court, without disputing the general rule that a party should not be allowed by amendment to set up a new case or agitate a new cause of action, particularly, when a suit on such new case or cause of action is barred, observed that it was well recognized that where the amendment does not constitute addition of a new cause of action or raising of a different case, but to “no more than a different or additional approach to the same facts”, the amendment would be allowed even after the expiry of the statutory period of limitation. The court, particularly, considered the statement of law by the Supreme Court in the cases of Charandas Das and L.J. Leach & Company Ltd (supra) in support of this proposition. The principal reasons, as the Court noted, that have led to the rule last mentioned were that the object of courts and rules of procedure was to decide the rights of the parties and not to punish them for their mistakes and secondly, a party was not strictly entitled to rely on a statute of limitation when what was sought to be brought in by way of amendment could be said “in substance to be already in the pleading sought to be amended.” The Court, particularly, relied on its observations in Pirgonda Hongonda Patil in support of this proposition. The Court noted that the expression ‘cause of action’ in this context meant a new claim made on a new basis constituted by new facts or new set of ideas. The court observed that amendment would not be allowed to introduce a new set of ideas to the prejudice of any right acquired by the other party due to lapse of time.
8. Learned Counsel for the Petitioner lays stress on the judgment of L.J. Leach & Co. (supra), to support his submission that even if these judgments lay down the principles for considering an application for amendment, these are not inflexible rules; courts have the power to nevertheless allow any amendment in the interest of justice. L.J. Leach & Co’s case distinguishes between the power of the Court to order an amendment, which is plenary, and the discretion of the Court whilst exercising such power, which is ordinarily circumscribed by the principles discussed above. These principles are for guidance of the Courts for using that discretion; the power, however, is overarching. There may be cases, where the amendment proposed may not come within these principles, yet the Court may exercise its power to order amendment where the consideration of these principles is out-weighed by the special circumstances of the case. The emphasis here is on ‘special’ or ‘extra-ordinary’ circumstances, when the Court may override these principles; in normal circumstances, however, the Court may insist on the amendment proposed coming within these principles.
9. Coming to addition of new grounds in a challenge petition filed under Section 34 of the Act, in the context of the above law, it is to be noted that Section 34 restricts a challenge to an arbitral award only on the grounds mentioned in Sub-sections (2) and (2A) of Section 34. We are not concerned with Sub-section (2A), since that pertains only to international awards and not domestic awards. Sub-section (2) lays down seven grounds on the basis of which alone an award could be ordered to be set aside. A challenge to an arbitral award must, thus, raise an objection to any adjudication contained in it in the light of these seven particular grounds of challenge set out under Sub-section (2). If challenge to an award or any particular part of the award is formulated on the basis of any particular stated ground of challenge coming within Sub-section (2), other grounds of challenge available under Sub-section (2) cannot be brought in subsequently by way of an amendment on the expiry of the period reserved under Sub-section (3) of Section 34. For example, if the ground of challenge to an arbitral award is ‘invalidity of the arbitration agreement under the law to which the parties have subjected it’ which is a ground provided in clause (a) (ii) of Sub-section (2), the other ground, namely, ‘incapacity of a party to an arbitration agreement or award’, which is a ground provided under clause (a) (i) of sub-section (2), cannot be added by way of amendment after the expiry of the period reserved under sub-section (3), for that would be introducing a completely new cause of action or set of ideas. If, on the other hand, the idea is already there, though not in so many terms formulated or developed, amendment can certainly be allowed so as to give meat or substance to that idea. For example, if the award is said to be vitiated because of invalidity of the arbitral agreement under the law to which the parties have subjected it, various facets of such invalidity can be brought out by way of elaboration, whilst introducing further grounds of challenge. But it must be shown that there has been a basis or root for introducing such elaboration.
10. In the light of the law discussed above, let us now see if the particular categories of grounds of challenge, which are sought to be introduced as noted above, come within these principles and whether they ought to be allowed. So far as the grounds of challenge, represented by Grounds R to TT (except SS), are concerned, it is clear that these exclusively pertain to the counter claims of the Petitioner, who was the respondent to the arbitration reference. These counter-claims were rejected by the arbitrators. Rejection of these counter claims, however, does not form part of the challenge to the arbitral award as originally formulated in the arbitration petition. None of the original grounds in the petition contains, or indeed suggests, any such challenge. Grounds A to E and G to I clearly bear only on the subject of the responsibility of the respective parties in relation to the delay in completion of work and the Petitioner’s entitlement as an employer to recover liquidated damages for such delay. They have nothing to do at all with any counterclaim of the Petitioner as an employer. Grounds F and J deal with the additional claims of the Respondent-contractor and, once again, have no bearing on the counterclaims of the Petitioner-employer. The only ground, which probably could be said to be remotely connected with the Petitioner’s counterclaims, was Ground K. The submission in Ground K was that losses suffered by the Petitioner were incapable of being crystalized earlier and therefore, the finding of the majority arbitrators that these losses had to be specified under various heads was not practically possible. This is but a miniscule part of the Petitioner’s challenge to the rejection of its counterclaims, which is now sought to be brought in by way of amendment. The rejection of the claim of losses was complained of in Ground K only to the extent the rejection was based on the alleged non-crystalization of losses and not on any of the grounds of challenge now sought to be brought in. If these new grounds were now permitted, that would be introducing an altogether new claim or cause of action or set of ideas to the prejudice of the rights acquired by the Respondent due to lapse of time. Learned Counsel for the Petitioner is unable to point out even a single special circumstances why an exception should be made in the present case to the ordinary rule that such new claim/cause of action/set of ideas should not be allowed.
11. Learned Counsel for the Petitioner seeks to fall back on the general grounds comprised within Grounds L to Q. These are but simplistic generalizations and incorporated merely as legal averments so as to bring the challenges within the four corners of Section 34; they do not suggest or bear any particular challenge to the award so far as it rejects the Petitioner’s counter-claims. One cannot possibly stretch the law so as to leave the field open for all manner of challenge on the basis of general averments made in the grounds of challenge, such as (a) the impugned award suffering from patent errors of law or (b) direct contradiction with express terms and conditions of contract or (c) opposition to public policy of India. If the law could be so stretched, then there may hardly be any case for rejection of any new ground of challenge, howsoever material it may be to the original controversy and whatever may be the period after which it is sought to be introduced.
12. Coming now to Grounds SS and UU to WW and III, these are clearly elaborations of the original grounds of challenge pertaining to the delay attributable to the Respondents-contractors and liquidated damages recoverable by the Petitioner-employer on account of such delay. These can certainly come within the statement of law in the cases of L.J. Leach & Company Ltd and Charandas Das. They do not seek to bring in any new idea or any new ground of challenge, but are merely in the nature of explanation or elaboration of the grounds of challenge already finding place in the arbitration petition. These, accordingly, have to pass muster and be allowed.
13. Coming now to the third category of grounds of challenge, which are represented by Grounds XX to OOO (except FFF, GGG, HHH and III), these are all pertaining to the Respondents-contractors’ claims, which were either not part of the contract or raised during the execution of the contract work. These deal with additional claims introduced for the first time after the work was executed. There are grounds of challenge raised in the arbitration petition in this behalf, namely, grounds F and J. In ground F, the Petitioner has alleged that the arbitrators had failed to consider that these claims were raised by the contractor as an afterthought after completion of the contract. In particular reference to the contractor’s claims based on changes to the GSU made by the Petitioner, it has been submitted in ground J that the arbitrators erred in holding that these changes were beyond the scope of the Respondents-contractors’ work and constituted an additional work. In other words, what is submitted by the Petitioner in connection with the claims of additional work or work beyond the contract work, is that these were incorrectly awarded; these were not part of the contract; these were not raised during the course of execution of the contract work; and these were an afterthought on the part of the Respondents-contractors. If that is so, it is certainly permissible to the Petitioner to elaborate on these grounds by introducing particulars why it was so and why the award on these additional claims deserved to be set aside. They come within the principles laid down by the Supreme Court in the case of L.J. Leach & Company Ltd and should pass muster.
14. So far as Grounds FFF, GGG and HHH are concerned, these, however, do not come within the aforesaid claims, which were not part of the original contract and which were made by the contractor subsequent to the execution of the contract work. Thes
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e clearly reflect on what was claimed during the course of execution of the contract and pertain to the contract work. There being no whisper or suggestion of any challenge to these claims in the arbitration petition, as originally formulated, these cannot be introduced now for the first time as and by way of additional grounds of challenge after expiry of the period of limitation under Sub-section (3) of section 34. 15. Coming now to the last ground of challenge which pertains to interest and which is represented by Ground PPP, this again does not form part of, or could be subsumed within, the original challenge at all and ought not to be permitted to be introduced for the first time by way of the present amendment application. It introduces a completely new challenge neither spelt out nor even suggested in the original petition. 16. In the premises, the Petitioner’s Chamber Summons is partly allowed in terms of the Schedule to the Chamber Summons as follows : (i) Clauses 1 and 2 of the Schedule are allowed. (ii) Clause 3 is allowed subject to the following exceptions: (a) Grounds R to TT (except SS) set out in clause-3 of the Schedule cannot be allowed and are excluded from the schedule ; (b) So also, Grounds FFF, GGG and HHH set out in clause-3 of the schedule are not allowed and are excluded from the amendment allowed herein. 17. Since only some of the grounds are allowed and not the others, the Petitioner shall, whilst carrying out the amendment, number the new grounds serially as they are allowed and not as per their original designation in the Schedule. 18. Amendment to be carried out within two weeks, and the amended petition be served on the Respondents. 19. The Respondents may file an additional reply, if any, to the amended arbitration petition. Such reply to be filed within three weeks of the amendment being carried out and communicated to the Respondents. 20. The arbitration petition to come up for admission on 4 November 2019.