Delhi High Court
Gtm Builders & Promoters Pvtltd vs Sneh Developers Pvt Ltd. on 20 September, 2017
Author: Jayant Nath
Bench: Jayant Nath
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: September 20, 2017
+ O.M.P. (COMM) 10/2016 & I.A.6379/2016
GTM BUILDERS & PROMOTERS PVTLTD .... Petitioner
Through: Dr.Amit George, Advocate with
Mr.Jai Sahai Endlaw & Mr.J.V.
Rana, Advs.
versus
SNEH DEVELOPERS PVT LTD. ..... Respondent
Through: Mr.Sudhir Nandrajog, Sr.
Advocate with Mr.H.S.Kohli,
Mr.Amit Sherawat, and
Mr.Avinash Sharma,
Advocates.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
I.A.4720/2017
1. This application is filed under Order VI Rule 17 read with Section 151CPC on behalf of petitioner for amending the petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'The Act').
O.M.P. (COMM) 10/2016 & I.A.6379/2016 Page 1 of 52. The petitioner has filed the present petition under Section 34 of the Act challenging the impugned arbitral award dated 01.08.2015. After passing of the award, the petitioner is said to have filed on 19.10.2015 objections under Section 34 of the Act before this court. In the meantime, the respondent moved an application under Section 33 of the Act before the learned arbitrator seeking correction of certain typographical mistakes in the award. On 07.9.2016, the application of the respondent under Section 33 of the Act was allowed. The said order dated 07.09.2016 makes a correction in the award. The award was for Rs. 4,37,88,000/-. This was noted to be a typographical error and was corrected as Rs.6,37,88,000/-. Now, the petitioner has filed the present application seeking to add paras in the original petition placing on record the corrections made by the learned arbitrator while disposing of the application under Section 33 of the Act on 07.09.2016 and also challenging the exercise of powers by the learned arbitrator under Section 33 of the Act.
3. I have heard the learned counsel for the parties.
4. The learned counsel for the petitioner relies upon the judgment of the Supreme Court in State of Maharashtra v. Hindustan Construction Company Ltd. (2010) 4 SCC 518 and Venture Global Engineering Satyam Computer Services Limited and another (2010) 8 SCC 660 to support his case that amendment can be allowed by this court.
5. The learned counsel for the respondent however submits that the court fees of main petition has not been filed within time and the O.M.P. (COMM) 10/2016 & I.A.6379/2016 Page 2 of 5 same is barred by limitation. This he states is the settled legal position. He submits that the original petition under Section 34 of the Act was filed by the petitioner on 19.10.2015 but the court fees has been paid some time in December, 2015. Hence, he submits that the original petition under Section 34 of the Act is barred by the limitation and the question of allowing the present amendment would not arise. He however accepts that other than adding the correction of the typographical mistake where the figure of Rs. 4,37,88,000/- was to read as Rs.6,37,88,000/-, no other amendment has been done by the learned arbitrator.
6. I may see the legal position regarding such amendments.
7. In Venture Global Engineering Satyam Computer Services Limited and another (supra), the Supreme Court has held as follows:-
"13. In the course of argument before this Court, Mr Harish N. Salve, learned Senior Counsel appearing for the respondents did not make any attempt to defend the order of the High Court on the question of limitation as the learned counsel was obviously conscious of the decision of this Court in State of Maharashtra v. Hindustan Construction Co. Ltd. [(2010) 4 SCC 518 : (2010) 2 SCC (Civ) 207 : AIR 2010 SC 1299] This Court in Hindustan Construction [(2010) 4 SCC 518 : (2010) 2 SCC (Civ) 207 : AIR 2010 SC 1299] made it clear that it cannot be the intention of the legislature to shut out amendments, as a result of which incorporation of relevant materials in a pending setting- aside proceeding is prevented.
14. In Hindustan Construction [(2010) 4 SCC 518 :
(2010) 2 SCC (Civ) 207 : AIR 2010 SC 1299] this Court considered the provision in Section 34(2)(b) of the A&C O.M.P. (COMM) 10/2016 & I.A.6379/2016 Page 3 of 5 Act, 1996 and while considering the ambit of the expression "the Court finds that" in Section 34(2)(b), this Court opined that where application under Section 34 has been made within the prescribed time, leave to amend grounds, in such an application, if the peculiar circumstances of the case and the interest of justice so warrant, can be granted. In saying so, this Court in SCC para 31 : AIR para 25 of the Report, relied on the decisions of this Court in L.J. Leach & Co.
Ltd. v. Jardine Skinner & Co. [AIR 1957 SC 357] and Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363] and held that where it is required in the interest of justice, the Court always has the power to grant leave to amend and this power to grant an amendment is not affected under Section 34.
15. We are of the opinion that in dealing with a prayer for amendment, courts normally prefer substance to form and techniques and the interest of justice is one of the most relevant considerations. Therefore, if a party is entitled to amend its pleadings, having regard to the justice of the case, the right of the party to amend cannot be defeated just because a wrong section or a wrong provision has been quoted in the amendment petition. The approach of the High Court in this case, in rejecting the appellant's prayer for amendment, inter alia, on the ground that a wrong provision has been quoted in the amendment petition, is obviously a very hypertechnical one. Mr Salve rightly did not even try to defend the impugned order on the aforesaid technical ground adopted by the High Court."
8. At this stage, the learned counsel for the respondent submits that the original petition is barred by the limitation but he will make the said submission at the time of admission/disposal of the main petition. The said submission on limitation is denied by the learned counsel for the petitioner.
O.M.P. (COMM) 10/2016 & I.A.6379/2016 Page 4 of 59. A perusal of the application for amendment filed by the petitioner would show that limited amendments are sought. In Para A, only the change of the amount stated is sought. In para C, the exercise of power of the learned arbitrator under Section 33 of the Act is sought to be challenged. In these circumstances, in my opinion, there are no substantial new issues or facts which are sought to be incorporated. The amendments sought are a consequence of the application under Section 33 of the Act being allowed.
10. Keeping in view the above decisions of the Supreme Court regarding amendment of petition under Section 34 of the Act, in my opinion, amendments sought are necessary for the purpose of determining the real questions in controversy between the parties. The need to amend arises on account of the events which have taken place subsequent to filing of the petition. Accordingly, the application is allowed.
11. Amendment petition be filed within two weeks from today.
12. List this matter for arguments on 11.01.2018.
13. The said application is accordingly disposed of.
JAYANT NATH, J.
SEPTEMBER 20, 2017/rk O.M.P. (COMM) 10/2016 & I.A.6379/2016 Page 5 of 5