Manipur High Court
The Chief Engineer vs M/S Keystone Infra Private Limited on 16 January, 2025
Author: Ahanthem Bimol Singh
Bench: Ahanthem Bimol Singh
[1]
Digitally signed by
SHOUGRAKPAM SHOUGRAKPAM DEVANANDA
DEVANANDA SINGH
Date: 2025.01.16 13:26:34
IN THE HIGH COURT OF MANIPUR
SINGH +05'30'
AT IMPHAL
CRP(CRP Art. 227) No. 36 of 2024
(Ref:- Judl. Misc. Case No. 32 of 2024)
The Chief Engineer, Public Works Department (including NH
& NEC) Imphal, Ground Floor, North Block, PWD Complex,
Khoyathong, Imphal, Manipur - 795001.
... Petitioner
-Versus-
M/s Keystone Infra Private Limited, No. 8-2-338/6, Road
No. 3, Panchavati Colony, Banjara Hills, Hyderabad-500034,
Telengana
... Respondent
B E F O R E
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the petitioner :: Mr. M. Rarry, Senior Advocate assisted
by Ms. Brizet, Advocate
For the respondent :: Mr. H.S. Paonam, Senior Advocate
asstd. by Mr. Purvesh Buttan, Advocate
Date of hearing :: 04-11-2024
Date of judgment :: 16-01-2025
J U D G M E N T
[1] Heard Mr. M. Rarry, learned senior counsel assisted by Ms. Brizet, learned counsel appearing for the petitioner and Mr. H.S. Paonam, learned senior counsel assisted by Mr. Purvesh Buttan, learned counsel appearing for the respondent.
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[2]The present petition had been filed assailing the order dated 25-07-2024 passed by the learned District Judge, Imphal West, in Judl. Misc. Case No. 32 of 2024 (Ref:- Judl. Misc. Case No. 37 of 2023). By the said order, the application filed by the respondent for amendment of its reply dated 14-08-2023 filed in connection with the Judl. Misc. Case No. 37 of 2023 had been allowed.
[2] As per the pleadings set out by the parties, the facts of the present case, in a nutshell, are that the petitioner awarded the contract for improvement of Bishnupur-Nungba Road and an agreement for the work was entered into between the petitioner and the respondent on 12-06-2023 for a contract value of Rs. 92,25,04,156.23 p. [3] Certain disputes arose between the parties during the execution of the work which could not be settled and the respondent invoked arbitration clause for adjudication of the disputes through arbitration. Accordingly, a sole arbitrator was appointed to adjudicate upon the disputes.
[4] After hearing both the parties, the Tribunal passed an award dated 20-02-2023 for an amount of Rs. 96,16,28,522/- in favour of the respondent.
[5] On 17-07-2023, the petitioner filed an Arbitration Petition before the Court of District Judge, Imphal West, for setting aside the CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[3]Arbitral Award dated 20-02-2023. An application, registered as Judl. Misc. Case No. 37 of 2023, was also filed under Section 34(3) of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the "Act", for short) praying for entertaining the said accompanying arbitration petition.
The respondent filed its reply dated 14-08-2023 to the said condonation application and the petitioner filed its rejoinder dated 16-08-2023 to the said reply filed by the respondent. [6] The original stand taken by the petitioner in its condonation application, i.e., Judl. Misc. Case No. 37 of 2023, was that the petitioner received the Arbitral Award on 14-03-2023 and as such, the limitation period of 120 days as provided under Section 34(3) of the Act expired on 12-07-2023.
[7] Taking into consideration the original stand of the petitioner made in its condonation application that the petitioner received the Arbitral Award on 14-03-2023 and as the arbitration petition was filed only on 17-07-2023, a preliminary objection about the maintainability of the said petition was raised by the respondent in its reply dated 14-08-2023 on the ground that the said petition was filed beyond the prescribed period of limitation of 120 days as provided under Section 34(3) of the Act and the court has no power to condone such delay as CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[4]the period of limitation is sacrosanct and cannot be condoned beyond the statutory period as provided under the Act. [8] Another preliminary objection raised by the respondent in its reply dated 14-08-2023 was that as the petitioner's counsel was apprised about the passing of the award on 20-02-2023 and the signed copy of the award was also served upon the petitioner, the Arbitration Petition filed by the petitioner was beyond the statutory period of limitation prescribed under the Act, hence liable to be rejected/dismissed on that ground itself.
[9] It is the case of the respondent that it was only after the argument at length was addressed on behalf of the respondent in connection with the condonation application and orders on the said application was reserved, the petitioner filed the following two applications:-
(a) Judl. Misc. Case No. 45 of 2023 (Ref:- Judl. Misc. Case No. 37 of 2023) with a prayer for permitting the petitioner to amend the condonation application (Judl. Misc. Case No. 37 of 2023) as proposed in the said application. The proposed amendments are as under:-
"7. That, this application is bonafidely filed with a prayer for permission to amend Para No. 3, 4 and Prayer Clause of the Judicial Misc. Case No. 37 of 2023 by way of substitution, addition and deletion in the manner submitted below:
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[5]
"7.1. In Para no. 3, the following portion of the said para may be permitted to be amended by way of addition and substitution of pleadings, as under:
UNAMENDED PLEA:
"That, the Arbitral Award was sent by the Arbitrator through post to Shri. S. Jasobanta Singh, Advocate representing the Petitioner in the Arbitration Proceeding. The said Counsel received the Award on 13.03.2023 in the afternoon and the same was forwarded to the Applicant on 14.03.2023. Hence, the period of 120 days expires on 12.07.2023"
PROPOSED AMENDMENT:
"That, the Arbitral Award dated 20.02.2023 was sent by the Arbitrator on 10.03.2023 through DTDC Courier, Nehru Place, Delhi, to Shri. S. Jasobanta Singh, Advocate who represented the Applicant in the Arbitration Proceeding. The said Counsel is said to have received the Award on 13.03.2023 and vide letter dated 14.03.2023, the said Award was delivered to and received by the Applicant on 05.04.2023 vide R.R. no. 29/CE of Receipt Register of Chief Engineer Office, PWD, Manipur. Hence, the extendable period of 30 days after the expiry of 3 months from the receipt of Arbitral Award expires on 04.08.2023".
"7.2. In Para no. 4, the following portion/ words of the said para may be permitted to be amended by way of addition and substitution of pleadings, as under:
(A) In Sub-Para 5, the word appearing as "from the receipt of the Arbitral award on 14.03.2023" may be permitted to be substituted by "from the receipt of Arbitral award on 05.04.2023".
B) In Sub-Para 6, the words appearing as "by the Applicant on 14.03.2023" may be permitted to be substituted as "by the Applicant on 05.04.2023.
(C) Before the beginning of the last Sub-Para 8 and end of Sub-
Para 7, the following may be permitted to be added:"
"An unintentional delay of 11 days in filing the accompanying Arbitration Petition has occurred after the expiry of 3 (three) months limitation period as prescribed under Section 34 (3) of the Act. The said bonafide delay of 11 days was not willful or deliberate, as the Applicant representing the Public Work Department, Manipur, was required to take several steps involving procedural compliance in the decision making process of the Government to file the accompanying Arbitration Petition and also in view of the sudden onset of law and order problems of unprecedented nature, as stated above. However, the present Arbitration Petition has been filed on 17.07.2023 within the extendible period of 30 days expiring on 04.08.2023 and for which the Humble Applicant has furnished sufficient and reasonable cause for the delay of 11 days".
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[6]
"7.3. In the Prayer Clause, the following portion/ words of the said clause may be permitted to be amended by way of addition and substitution of pleadings, as under:
The words originally appearing as filed by the Applicant within 120 days of receiving the Arbitral Award by the Applicant (received on 14.03.2023 and expiring on 12.07.2023 (during Civil Court Summer Vacation)"
IS NOW PRAYED TO BE AMENDED BY WAY OF SUBSTITUTION as "filed by the Applicant within 120 days of receiving the Arbitral Award by the Applicant, by condoning a delay of 11 days, in the condonable period of 30 days, after expiry of 3 months limitation, as prescribed in Section 34 (3) of the Arbitration and Conciliation Act, 1996 (award is received on 05.04.2023 and the condonable period of 30 days expires on 04.08.2023)".
The said amendment application was allowed by the District Judge, Imphal West, by an order dated 08-01-2024 subject to payment of cost of Rs. 10,000/- and directing the petitioner to file a recast application after due incorporation.
(b) Judl. Misc. Case No. 46 of 2023 (Ref:- Judl. Misc. Case No. 37 of 2023) with a prayer for permitting the petitioner to file the following two documents:-
(i) The original letter dated 14-03-2023 of Shri S. Jasobanta Singh, Advocate; and
(ii) The certified to be True Copy of the relevant pages (5 pages) of the Receipt Register of Chief Engineer Office, PWD, Manipur, showing RR No. 29/CE dated 05-04-2023 (including cover page, first page, relevant page, last RR entry and last page of the RR Book).
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[7]
The said application was allowed by the learned District Judge, Imphal West, by an order dated 16-10-2023 by permitting the petitioner to file the enclosed documents and by observing that the original documents of the documents listed at Sl. No. 2 of the application may be produced before the court, if the circumstances called for.
[10] It is also the case of the respondent that only after the respondent raised specific objections regarding maintainability of the amendment application, i.e., Judl. Misc. Case No. 45 of 2023, on the ground that as per law of estoppel, the petitioner is estopped from going back from his earlier written submissions as submitted in the rejoinder dated 16-08-2023 filed by the petitioner in connection with the condonation application (Judl. Misc. Case No. 37 of 2023), the petitioner filed the following application:-
Judl. Misc. Case No. 58 of 2023 with a prayer for permitting the petitioner to amend the pleadings made in the rejoinder.
The proposed amendments are as under:-
"11. That, there is a bonafide necessity by the Applicant to also amend the pleadings in in "Paras no. 1.4, 1.6, 1.7., 1.7.(a) & 1.7.(b) and 5 of Rejoinder Reply dated 16.08.2023 of the Applicant filed in reply to Respondent response to pending Judicial Misc. Case no. 37 of 2023" in the manner proposed and provided below:
PROPOSED AMENDMENT "11.1. In Para no. 1.4, the following portion of the said para may be permitted to be amended by way of addition and substitution of pleadings, as under:
UNAMENDED PLEA:
"1.4. ........... The date of receipt of the original signed Award by the Applicant is 14.03.2023 in terms of Section 34(3) of the Act.
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[8]
.............. Hence, the starting period for calculating limitation would be from 14.03.2023 and the 3 months period for filing Application under Section 34 would expire on 14.06.2023. The present Application could not be filed within the said 3 months period but has been filed within the extended period of 30 days after the expiry of the 3 months periods which expired on 14.05.2023".
PROPOSED AMENDMENT:
"1.4. ........... The date of receipt of the original signed Award by the Applicant is 05.04.2023 in terms of Section 34 (3) of the Act. .......... Hence, the starting period for calculating limitation would be from 05.04.2023 and the 3 months period for filing Application under Section 34 would expire on 05.07.2023. The present Application could not be filed within the said 3 months period but has been filed within the extended period of 30 days, after the expiry of the 3 months periods, and which finally expire on 04.08.2023"."
"11.2. In Para no. 1.6., the following portion/ words of the said para may be permitted to be amended by way of deletion and substitution of pleadings, as under:
UNAMENDED PLEA:
"1.6. ............. of receiving the Arbitral Award by the Applicant on 14.03.2023. The period of the extended 30 days consequent upon the expiry of 3 months from the date of receipt of the Award would expire on 12.07.2023 (during the Summer Vacation of the Courts from 08.07.2023 till its opening on 17.07.2023) PROPOSED AMENDMENT "1.6. ................ of receiving the Arbitral Award by the Applicant on 05.04.2023. The period of the extended 30 days consequent upon the expiry of 3 months from the date of receipt of the Award would expire on 04.08.2023."
"11.3. In Para no. 1.7., the following portion/ words of the said clause may be permitted to be amended by way of addition and substitution of pleadings, as under:
UNAMENDED PLEA:
"1.7. .............Hence, the present Application is filed within 30 days of the receipt of the Arbitral Award on 14.03.2023 by the Applicant.
PROPOSED AMENDMENT "1.7. ............... Hence, the present Application is filed within the condonable period of 30 days of the receipt of the Arbitral Award on 05.04.2023 by the Applicant."
"11.4. In Para no. 1.7., the following portion/ words of the said clause may be permitted to be amended by way of addition and substitution of pleadings, as under:
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[9]
(i) AFTER Para no. 1.7., there is mistake in the numbering of para with repetition of Para no.1.7. and same is prayed to be corrected as under.
UNAMENDED PLEA :
"1.7......................"
PROPOSED AMENDMENT "1.8. ....................."
(ii) In the un-corrected para no. 1.7. now proposed to be correctly re-numbered as para 1.8., the following amendment is prayed for. UNAMENDED PLEA:
"1.7. ............ Hence, the present Application is filed within 30 days of the receipt of the Arbitral Award on 14.03.2023 by the Applicant".
PROPOSED AMENDMENT "1.8. ............... Hence, the present Application is filed within condonable period of 30 days of the receipt of the Arbitral Award on 05.04.2023 by the Applicant".
(iii) In the un-corrected para no. 1.7. (a) now proposed to be correctly re-numbered as para 1.8. (a), the following amendment is prayed for.
UNAMENDED PLEA:
"1.7.(a) After receipt of the Award by the Applicant on 14.03.2023, the Applicant perused the Award and felt it necessary to seek legal opinion from S. Jasobanta Singh, Advocate ................."
PROPOSED AMENDMENT "1.8.(a) After receipt of the Award by the Applicant on 05.04.2023, the Applicant perused the Award and the forwarding letter dated 14.03.2023 and felt it necessary to see the legal opinion received from S. Jasobanta Singh, Advocate ................."
(iv) In the un-corrected para no. 1.7. (b) now proposed to be correctly re-numbered as para 1.8. (b), the following amendment is prayed for.
UNAMENDED PLEA:
"1.7.(b) The Counsel Shri S. Jasobanta Singh, Advocate reverted back to the Applicant on 03.04.2023 opining that there are good grounds for filing an Application for setting aside the Award under Section 34 of the Act, as the Ld. Sole Arbitrator has never considered the grounds/pleas taken in the Statement of Defense and the Counter Claim and the award suffers from patent illegality".
PROPOSED AMENDMENT "1.8.(b) The Counsel Shri S. Jasobanta Singh, Advocate in the letter dated 14.03.2023 opined that there are good grounds for CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[10]
filing an Application for setting aside the Award under Section 34 of the Act, as the Ld. Sole Arbitrator has never considered the grounds/pleas taken in the Statement of Defense and the Counter Claim and the award suffers from patent illegality, as seen from contents of said letter dated 14.03.2023".
"11.5. In Para no. 5, the following portion/ words of the said clause may be permitted to be amended by way of addition and substitution of pleadings, as under:
UNAMENDED PLEA :
"5. .................. as the Award was received by the Applicant through post only on 14.3.2023, as stated above."
PROPOSED AMENDMENT "5 ............. as the Award was received by the Applicant's Counsel through post only on 13.3.2023, as stated above." The said application was allowed by the learned District Judge, Imphal West, by an order dated 08-01-2024 subject to payment of cost of Rs. 10,000/- and directing the petitioner to file a recast rejoinder after due incorporation.
[11] After payment of cost and filing of recast application/ rejoinder, the respondent filed a new reply dated 02-03-2024. In response, the petitioner filed an application registered as Judl. Misc. Case No. 26 of 2024 dated 08-03-2024 with a prayer for rejecting the said new reply filed by the respondent on the ground that the respondent illegally amended para E and J and adding additional pleadings as para L, M and N as well as in para 2, 3 and 4 of the parawise reply and a new case has been set up by the respondent in the guise of replying to the amendment made by the petitioner by raising a totally new plea, case and claims inconsistent with the previous pleadings.
CRP(CRP Art. 227) No. 36 of 2024 Contd.../- [11] [12] Subsequently, the respondent filed the following two
applications - one, for allowing amendment of his reply dated 14-08-2023 filed in connection with the condonation application (Judl. Misc. Case No. 37 of 2023) and another, for allowing to file two additional documents:-
(a) Judl. Misc. Case No. 32 of 2024 (Ref:- Judl. Misc. Case No. 37 of 2023) with a prayer, inter alia, for permitting the respondent to amend the pleadings in the reply dated 14-08-2023 filed in connection with the condonation application as proposed in the said application. The proposed amendments are as under:-
"7. That there is bonafide necessity by the applicant/ respondent to further clarify/add or amend the pleadings in "Para nos. E, J, L, M, N of the preliminary submissions and Para nos. 2 and 3 of reply on merits" of the reply dated 14.08.2023 (filed with changes as reply dated 02.03.2024) to the unamended application U/s. 34(3) of the non-applicant/ petitioner and which finds mentioned in reply dated 02.03.2024 filed by the applicant/ respondent to the amended application U/s. 34(3) of the petitioner/opposite party in Judl. Misc. Case No. 37 of 2023 in the manner as proposed and provided hereinbelow:
PROPOSED AMENDMENT "7.1. In para no. E of the preliminary submissions of the reply dated 14.08.2023; the following portion of the said para may kindly be permitted to be amended by way of an addition and substitution of pleadings, as under:
UNAMENDED PARAGRAPH E OF THE PRELIMINARY SUBMISSIONS: "E. That in the case of Simplex Infrastructure Limited vs. Union of India 2019 (2) SCC 455, the Apex Court, relying on the judgment in the case of Popular Construction (Supra) interpreted the words "but not thereafter" occurring in Section 34(3) of the Act, and emphasized the importance of limitation in filing an application under Section 34 and held that not a day beyond 120 days from the date of receipt of the Award can be condoned by the Court. A reading of these judgments is a pointer to the fact that while in condonation of delay, the Courts have been CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[12]
generally liberal, but when it comes to Section 34(3) of the Act, the limitation period is inelastic and meant to be strictly followed. Therefore, under this jurisdiction, the applicant would have to pass a higher threshold of showing that his conduct was of due diligence and dispatch and a casual explanation for delay cannot and should not be accepted. The applicant has to show not only due diligence in filing within the 30 days period, but more importantly, "sufficient cause" has to be shown, which prevented the applicant for 3 months in filing the petition. Whereas, in the present case the applicant has no tenable reasons much less to say any justifiable reason as the objection petition itself has been filed by the applicant after a period of more than 8 months approximately, which can for by no reasons be said to be reasonable and by no means can be condoned by the Hon'ble Court as the period of limitation is sacrosanct and cannot be condoned beyond the statutory period as provided in the Act. "
PROPOSED AMENDMENT At the end of paragraph no. E of the preliminary submissions of the reply dated 14.08.2023, the following lines be added i.e., "That the application is not maintainable and liable to be dismissed as the application under reply is gross abuse of the process of law and thus liable to be dismissed as applicant for no purposes could be allowed to take any advantage of its own wrongs and mischief's. The applicant has not approached this Hon'ble Court with clean hands and honest intention; therefore, applicant is guilty of SUPPRESSIO VERI, SUGGESTIO FALSI. The Applicant has suppressed material facts and relevant information from this Hon'ble Court and has formulated a /flimsy and concocted story mentioning false incidents and frivolous grounds hence, the application is liable to be dismissed with costs."
"7.2. In Para no. J of the preliminary submissions of reply dated 14.08.2023; the following portion of the said para may kindly be permitted to be amended by way of an addition and substitution of pleadings, as under:
Unamended Para no. J of the preliminary submission of reply dated 14.08.2023;
J. That the application is further not maintainable and liable to be rejected as applicants counsel was apprised about the passing of the award on 20.02.2023 and the signed copy of the award was also served upon the applicant, meaning thereby that the objection as filed by the applicant is beyond the statutory period as prescribed under the Act, hence liable to be rejected/ dismissed on this ground itself.
PROPOSED AMENDMENT In paragraph no. E of the preliminary submissions of the reply dated 14.08.2023, the following lines be added i.e., CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[13]
"J. .......... On 20.2.2023 by way of an e-mail from the Arbitral Tribunal with signed copy of the award duly attached as annexure ......"
"7.3 The following paragraphs no. L, M and N may kindly be allowed to be added and be read as part of the preliminary submissions of the reply dated 14.08.2023 i.e., L. EFFECTIVE DATE OF SERVICE That the respondent respectfully submits that the Hon'ble Arbitral Tribunal vide e-mail dated 20.02.2023 had sent the signed scanned copy of the award to both the petitioner and the respondent on their e-mail id's and as per the settled catena of Judgment it is now to be deemed to be an effective date of service of the award for the purpose of computation of the period as stipulated U/s. 34(3) of the Act, hence for all purposes the entire controversy as created by the petitioner to be the date of effective service to be 14.03.2023 or 05.04.2023 is of no consequence and significance in view of the settled principle of law as laid down by catena of judgments. It is now the settled principle of law that the intent and purpose of Section 31(5) of the Act is to make the party aware of the passing of the award and the non-receipt of the physical signed copy of the award is of no significance as it has come to the knowledge of the parties that the award has been passed and the copy of the award has been served by way of e-mail. Therefore, the date on which the parties are put to the knowledge of the award and its content, which in the present case is on 20.02.2023 by way of an e-mail of AT, then that would be the date of effective service i.e., 20.02.2023 for the purpose of calculation of statutory period of filing Section 34 objection to the Award. Hence, in the present scenario and settled proposition of law the period to be computed is to be from 20.02.2023 and admittedly the objection under section 34 of the Act has been filed on 17.07.2023 which is hopelessly time barred and cannot be considered to be proper and within limitation as prescribed under law.
The respondent submits that the Hon'ble Arbitral Tribunal (AT) had sent the signed copy of the Award dated 20.02.2023 by way of an e-mail dated 20.02.2023 itself which fact could clearly be established from the attachment to the e-mail. The respondent seeks the liberty to place on record the screen shots of the e- mail and also random pages of the attachment i.e., the signed copy of the award dated 20.02.2023 which would clearly show that the copy as sent by e-mail by the AT was a signed copy of the Award. The said screen shots are attached as Annexure R-
1. The respondent also seeks to place on record the entire copy of the award dated 20.02.2023 which was received through e- mail dated 20.02.2023 for the ready and kind perusal of the Hon'ble Court as Annexure R-2. The respondent submits that the respondent is ready and willing to share the e-mail and the attachment with the court on the official e-mail id of the Court or if permitted to show the e-mail and the attachment in the CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[14]
court. The petitioner now in view of settled proposition of law has no mouth to say that the objection as filed under section 34 of the Act is filed within the statutory period as provided under the Act.
The controversy ends with the said fact that the signed copy of the Award dated 20.02.2023 was served on 20.02.2023 itself. Hence, it does not come to the rescue of the petitioner to now allege that the petitioner was served on 05.04.2023 and that therefore, three months and thirty days as envisaged U/s. 34(3) would commence from 05.04.2023. It is reiterated that, as per the settled proposition of law as laid down vide several judgments, the date of commencement/ start of limitation to Rile petition U/s. 34 of The Arbitration and Conciliation Act, 1996 (as amended up to date) would be 20.02.2023, hence the commencement of limitation in the present case would commence from 20.02.2023 and accordingly the statutory period as prescribed U/s. 34(3) of the Act (i.e., three months and extended period of 30 days) would end on 20.06.2023, whereas the application U/s. 34 of the Act was Riled only on 17.07.2023, hence hopelessly time barred under law and the recast application under reply is liable to be dismissed with exemplary cost.
M. That the application is further not maintainable more specially when as per the Judgments of the Hon'ble Apex Courts the application U/s. 34(3) of the Act is liable to be dismissed as the objection petition U/s. 34 of the Act has been filed much after the statutory period as provided in the Act.
N. That the award passed by the Hon'ble Arbitral Tribunal is a well- reasoned and speaking award and has deals with all the issues hence, the applicant has no mouth to say that the award as pronounced by the competent Arbitral Tribunal is erred or bad in the eyes of law and it is respectfully submitted that the impugned award do not warrant any interference from the Hon'ble Court. It is imperative to mention that despite being served with the award by the competent tribunal the petitioner did not file any objections as mandated and required under the provisions of Arbitration and Conciliation Act, 1996, within the statutory period as prescribed in the Act and since Section 5 of the Limitation Act is not applicable to Arbitration and Conciliation Act, 1996, thereby making the statutory period as sacrosanct. Since, no objections have been filed within the prescribed period; hence the award has attained finality and has become enforceable."
"7.4 In Para no. 2 of the reply on merits in reply dated 14.08.2023; the following portion of the said para may kindly be permitted to be amended by way of an addition and substitution of pleadings, as under:
Unamended Para no. 2 of the reply on merits in reply dated 14.08.2023;
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[15]
2. That the contents of paragraph no. 2 of the application under reply need no reply but nothing shall be construed as admission for and on behalf of the respondent.
PROPOSED AMENDMENT In paragraph no. 2 of the reply on merits in the reply dated 14.08.2023, the following lines be added at the end of the paragraph i.e., "2. .......... The award passed by the Hon'ble Arbitral Tribunal is a well-reasoned and speaking award and deals with all the issues hence, the applicant has no mouth to say that the award as pronounced by the competent Arbitral Tribunal is erred or bad in the eyes of law and it is respectfully submitted that the impugned award do not warrants any interference from the Hon'ble Court. It is imperative to mention that despite being served with the award by the competent tribunal as early as 20.02.2023 the petitioner did not file any objections as mandated and required under the provisions of Arbitration and Conciliation Act, 1996, within the statutory period as prescribed in the Act and since Section 5 of the Limitation Act is not applicable to Arbitration and Conciliation Act, 1996, thereby making the statutory period as sacrosanct. Since, no objections have been filed within the prescribed period; hence the award has attained finality and has become enforceable."
"7.5 In Para no. 3 of the reply on merits in reply dated 14.08.2023; the following portion of the said para may kindly be permitted to be amended by way of an addition and substitution of pleadings, as under:
PROPOSED AMENDMENT In paragraph no. 3 of the reply on merits in the reply dated 14.08.2023, the following lines be added at the end of the paragraph i.e., ".........It is further wrong and incorrect to say hence vehemently denied that the present accompanying Arbitration Petition was ready to be filed on 10.7.2023 or that due to summer vacation of the Subordinate Civil Courts in Manipur starting from 10.7.2023 till 15.7.2023, the same could not be filed during the said period till today, as alleged. It is further wrong and incorrect to say hence vehemently denied that the accompanying Arbitration Petition is filed today i.e., 17.7.2023, immediately on the reopening of this Hon'ble Court, after Summer Vacation holiday or that without any delay or that the accompanying Arbitration Petition has been filed within the time stipulated in proviso to Section 34(3) of the Arbitration and Conciliation Act, 1996, as alleged. It is respectfully submitted that it is now the settled principle of law that the intent and purpose of Section 31(5) of the Act is to make the party aware of the passing of the award and the non-receipt of the physical signed copy of the award is of no significance as it has come to the knowledge of the parties that the award has been passed and in the present case the copy of the arbitral award has been served by the Ld. Arbitral Tribunal by way of an email on 20.02.2023. Therefore, CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[16]
the date on which the parties are put to the knowledge of the award and its content, which in the present case is on 20.02.2023 by way of an e-mail of AT, then that would be the date of effective service, as per settled proposition of law, i.e., 20.02.2023 would be the date for the purpose of calculation of statutory period of filing Section 34 objection to the Award. Hence, in the present scenario and settled proposition of law the period to be computed is to be from 20.02.2023 and admittedly the objection under section 34 of the Act has been filed on 17.07.2023 which is hopelessly time barred and cannot be considered to be proper and within limitation as prescribed under law. The contents of SUPRA paragraphs may kindly be read as part and parcel of the present paragraph under reply as the contents of the same have not been reported herein for the sake of brevity and to avoid repetition."
(b) Judl. Misc. Case No. 38 of 2024 (Ref:- Judl. Misc. Case No. 37 of 2023) with a prayer for allowing the respondent to file the following two documents:-
(i) the screen shots taken of random pages of the attachment which was attached with the e-mail dated 20-02-2023 as signed by the sole arbitrator which was none other than the signed copy of the Arbitral Award dated 20-02-2023; and
(ii) the print out attachment of e-mail dated 20-02-2023, i.e., the signed Arbitral Award dated 20-02-2023.
[13] Judl. Misc. Case No. 38 of 2024 was allowed by the learned District Judge, Imphal West, by an order dated 25-07-2024. Judl. Misc. Case No. 32 of 2024 was also allowed by the learned District Judge, Imphal West, by passing a separate order dated 25-07-2024 subject to payment of cost of Rs. 10,000/- with a direction to file a new recast reply after incorporating the proposed amendments. The said order is being impugned herein. The operative portion of the observations and findings CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[17]given by the learned District Judge, Imphal West, in the impugned order are reproduced hereunder for ready reference:-
"4. One of the issues upon which the fate of the application of petitioner filed under S, 34(3) of the Arbitration and Conciliation Act, 1996 hinges is what is the date of service of the arbitral award upon the petitioner. The main purpose of this amendment application is also to incorporate facts as regards the question when and how the copy of the arbitral award was first sent. It will, therefore, be necessary to first take note of the respective versions of the parties on this issue as per their pleadings. The following paragraph of the recast application of the petitioner explains his side of the story on this point:
1. That, the Arbitral Award dated 20.02.2023 was sent by the Arbitrator on 10.03.2023 through DTDC Courier, Nehru Place, Delhi, to Shri S. Jasobanta Singh, Advocate who represented the Applicant in the Arbitration Proceeding. The said Counsel is said to have received the Award on 13.03.2023 and vide letter dated 14.03.2023, the said Award was delivered to and received by the Applicant on 05.04.2023 vide R.R. no. 29/CE of Receipt Register of Chief Engineer Office, PWD, Manipur. Hence, the extendable period of 30 days after the expiry of 3 months from the receipt of Arbitral Award expires on 04.08.2023."
"5. The position taken by the respondent against this claim of the petitioner can be gathered from paragraph J at page 6 and paragraph 3 at page 7 of its reply dt. 14.08.2023 which are reproduced as under:
J. That, the application is further not maintainable and liable to be rejected as applicants counsel was apprised about the passing of the award on 20.02.2023 and the signed copy of the award was also served upon the applicant, meaning thereby that the objection as filed by the applicant is beyond the statutory period as prescribed under the Act, hence liable to be rejected/dismissed on this ground itself.
3. That the contents of paragraph no. 3 of the application under reply to the extent that the award was sent through post is not denied but it is denied that the same was served upon the applicant on 14.03.2023 as alleged. Moreover, the counsel for the applicant was informed about the award on the date of passing of the award itself. The period is three months as prescribed under the Act and not 120 days as stated by the applicant while computing the period of limitation for filing the objection petition. The respondent reserves its right to address all the points during the course of arguments. It is further wrong and incorrect to say that the Arbitration Petitioner was ready to be filed on 10.07.2023, as alleged or that it is because of the holidays of the subordinate Civil Courts in Manipur starting from 10.07.2023 till 15.07.2023, the same could not be filed during the said period till today, as alleged...."
"6. The present amendment application also seeks to incorporate many other averments. However, much of the proposed additions are in nature of arguments and reiterated the contention that the application of the petitioner is time barred and the delay cannot be condoned in law. To CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[18]
give a brief description of the proposed amendment, it seeks to add additional lines to existing paragraph no. E and J and also new paragraphs L, M and N to its reply dated 14.08.2023 as part of its preliminary submissions. Further, after paragraph no.2 and paragraph no.3 of the reply on merits, additional lines are sought to be added."
"7. As stated earlier, the most crucial issue is the date of service of the award on the petitioner determination of which is necessary in order to answer the question of limitation. In this respect, the most consequential part of the proposed amendment will be the following paragraph which is sought to be added:
L. EFFECTIVE DATE OF SERVICE That the respondent respectfully submits that the Hon'ble Arbitral Tribunal vide e-mail dated 20.02.2023 had sent the signed scanned copy of the award to both the petitioner and the respondent on their e-mail id's and as per the settled catena of judgment it is now to be deemed to be an effective date of service of the award for the purpose of computation of the period as stipulated U/s. 34(3) of the Act, hence for all purposes the entire controversy as created by the petitioner to be the date of effective service to be 14.03.2023 or 05.04.2023 is of no consequence and significance in view of the settled principle of law that the intent and purpose of Section 31(5) of the Act is to make the party aware of the passing of the award and the non-receipt of the physical signed copy of the award is of no significance as it has come to the knowledge of the parties that the award has been passed and the copy of the award has been served by way of e-mail. Therefore, the date on which the parties are put to the knowledge of the award and its content, which in the present case is on 20.02.2023 by way of an e-mail of AT, then that would be the date of effective service i.e., 20.02.2023 for the purpose of calculation of statutory period of filing Section 34 objection to the Award. Hence, in the present scenario and settled proposition of law the period to be computed is from 20.02.2023 and admittedly the objection under section 34 of the Act has been filed on 17.07.2023 which is hopelessly time barred and cannot be considered to be proper and within limitation as prescribed under law.
The respondent submits that the Hon'ble Tribunal (AT) had sent the signed copy of the Award dated 20.02.2023 by way of an e-mail dated 20.02.2023 itself which fact could clearly be established from the attachment to the e-mail. The respondent seeks liberty to place on record the screen shots of the e-mail and also random pages of the attachment i.e., the signed copy of the award dated 20.02.2023 which would clearly show that the copy as sent by e-mail by the AT was a signed copy of the Award. The said screen shots are attached as Annexure R-1. The respondent also seeks to place on record the entire copy of the award dated 20.02.2023 which was received through e-mail dated 20.02.2023 for ready and kind perusal of the Hon'ble Court as Annexure R-2. The respondent submits that the respondent is ready and willing to share the e-mail and the attachment with the court on the official e-mail id of the Court or if permitted to show the e-mail and the attachment in the court. The petitioner now in view of the settled proposition of law has no mouth to say that the objection as filed under CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[19]
Section 34 of the Act is filed within the statutory period as provided under the Act."
"15. I have given my consideration to rival contentions and submissions. The proposed amendment is seeking to incorporate an important assertion to the effect the signed scanned copy of the Arbitral Award was sent to both the parties by e-mail on 20.02.2023. At the outset, it may be observed that this averment is vitally relevant to the question as to when the petitioner can be said to have first received copy of the award and what should be the starting point of the period of limitation as provided under S. 34(3) of the Arbitration & Conciliation Act."
"16. It is a fact that the respondent in its reply dated 14.08.2023 does not mention of any communication of the copy of the arbitral award by e-mail on 20.02.2023. However, there is also no statement or fact averred in the said reply dt. 14.08.2023 that would make incorporation of these new facts inconsistent with the original stance taken by the respondent. To admit that the award was sent through post and at the same time to say that scanned copy of the award was also sent on 20.02.2023 are not incompatible statements. Both can be true, i.e., copy could have been sent both by e-mail as well as by post. It is not a situation where only one of the two can possibly be true."
"17. There is no withdrawal of any admission involved in seeking the changes through this amendment. The proposed amendment is not seeking to delete or omit its admission that the award was sent through post to petitioner. The said statement will continue to remain even after the amendment. But, there is no admission by the respondent in the first place anywhere in its pleading that the copy of the award was served on the petitioner only on 14.03.2023. Para No.3 of the reply may be reproduced to highlight this fact -
"3. That the contents of paragraph no.3 of the application under reply to the extent that the award was sent through post is not denied but it is denied that the same was served upon the applicant on 14.03.2023 as alleged, moreover, the counsel for the applicant was informed about the award on the date of passing of the award itself..."
"18. The fact that sending of the award by post has been admitted cannot lead to the inference that the respondent has admittedly ruled out any other possible mode of communication of the award."
"19. The service of the award through e-mail is a very relevant fact. Whether service through e-mail is enough to set the period of limitation running is a question which has to be adjudicated after hearing on merit the application filed under S.34(3) of the Act. But there is nothing, even remotely, to suggest any prejudice will be caused to the petitioner if the proposed amendment is permitted. Therefore, despite the fact that the proposed amendment is much more than consequential amendment to the recast application, it ought to be allowed."
"20. The proviso to order 6 rule 17 CPC provides that no application for amendment shall be allowed after trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of the trial. Perusal of record shows that on 17.08.2023, the Rejoinder Reply of the petitioner to CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[20]
the reply of the respondent in Judl. Misc Case No. 37 of 2023 was filed. The proceeding of the said day mentioned that both the Ld. Counsels were heard. The Court fixed 30.08.2023 for filing of written arguments of the parties. However, on 07.10.2023, two Judl. Misc cases 45 of 2023 and 58 of 2023 were filed by the petitioner. Vide order dt. 05.02.2024 passed in Judl. Mise No. 45 of 2023, the application in Judl. Case No. 37 of 2023 was allowed to be amended. So far, after the incorporation was made as permitted by said order dt. 05.02.2024 passed in Judl. Misc No. 45 of 2023, the hearing on the merit of the application filed under proviso to S.34(4) of the Act has not yet commenced. In another word, though it seems from record that on 17.08.2023 hearing on the merit on the Judl. Misc Case No. 37 of 2023 had taken place, this was followed by amendment of pleading of the petitioner. Thereafter, hearing on merit after pleadings of both parties are completed is yet to commence."
"21. It is worth noting that order dt. 08.01.2024 passed in Judl. Misc Case No. 45 of 2023 while allowing the amendment of the application of the petitioner has made certain observations on the question if there is bar in entertaining it. The said order observations at para. no. 3.2, 3.3 and 4 specifically examine this question by making reference to the stage of proceeding. The Court observed that the application was filed before conclusion of arguments or hearing and there is no bar in entertaining it as per law. Principle of Parity demands that similar leniency may be accorded to the respondent also while considering the present application.
This application is allowed subject to cost of Rs.10,000/- to be paid to the opposite party.
A new recast reply shall be filed after incorporating the proposed amendment.
Disposed of."
[14] Judl. Misc. Case No. 26 of 2024 filed by the petitioner for rejecting the new reply filed by the respondent was also disposed of by the learned District Judge, Imphal West, by an order dated 25-07-2024. The said order stated that in view of the disposal of the Judl. Misc. Case No. 32 of 2024 whereby the reply of the respondent was permitted to be amended, the present application has become infructuous and the court also clarified that it will not take on record the reply dated 02-03-2024 filed by the respondent.
CRP(CRP Art. 227) No. 36 of 2024 Contd.../- [21] [15] Mr. M. Rarry, learned senior counsel appearing for the
petitioner submitted at length both on fact and law to set up a number of grounds in challenging the impugned order. It has been strenuously submitted by the learned senior counsel that it is an undisputed fact on record that the plea of communication of Arbitral Award by way of e-mail, as now proposed to be raised, in the guise of a consequential amendment, by the respondent is nothing but an attempt to discard and shift away from the original plea of the respondent about the disputed date of delivery of award by post. It has also been stated that the proposed amendments of the respondent now seeks to introduce an entirely new and different case, by raising a new plea of communication by e-mail, after having sense the inevitable outcome of the condonation application filed by the petitioner being decided in favour of the petitioner after the amendment of limited correction in the date of delivery of award by post was allowed. The learned senior counsel also submitted that if the proposed amendment is allowed, it will irretrievably prejudice the petitioner as far as, adjudication of the condonation application is concerned.
[16] Relying on the judgment rendered by the Hon'ble Supreme Court in the case of "Gurdial Singh & ors. Vs. Raj Kumar Aneja & ors." reported in (2003) 2 SCC 445, the learned senior counsel submitted that the additional pleadings allowed to be made by the CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[22]opposite party, subsequent to two amendments of pleadings being allowed by court, should be confined to answer the amendment made by other party and that when consequential amendment is prayed for, the opposite party cannot be permitted to add a new plea or introduce an entirely different case, which will cause prejudice to the petitioner by the said opposite party. The learned senior counsel submitted that while passing the impugned order, the learned District Judge has totally failed to consider and apply the said legal principle and as such, the impugned order is liable to be quashed and set aside as being illegal and perverse order.
[17] The learned senior counsel submitted that the proposed amendment of para 2 of the reply filed by the respondent in connection with the condonation application is nothing but a withdrawal of a clear admission earlier made by the respondent and allowing the respondent to raise and introduce a totally contradictory new and different case and as such, the said proposed amendment is ultra vires the principle of law laid down by the Hon'ble Apex Court and accordingly, the same is liable to be rejected.
[18] The learned senior counsel lastly submitted that the new plea of communication of the Arbitral Award by e-mail as proposed in the amendment application is nothing but an afterthought attempt by the respondent and if allowed, it will completely and irretrievably prejudice CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[23]the petitioner, inasmuch as, a meritorious matter of the petitioner filed under Section 34 of the Arbitration and Conciliation Act, 1996 challenging an illegal award may be defeated and that the respondent's entire mala fide attempt from the very beginning is to ensure that the said arbitration petition is not allowed to be heard on its merit. In support of his contentions, the learned senior counsel cited the following case laws:-
(a) (2002) 2 SCC 445 "Gurdial Singh & ors. Vs. Raj Kumar Aneja & ors." wherein the Hon'ble Apex Court held as under:-
"13. Before parting we feel inclined to make certain observations about the loose practice prevalent in the subordinate courts in entertaining and dealing with applications for amendment of pleadings. It is a disturbing feature and, if such practice continues, it is likely to thwart the course of justice. The application moved by the occupants for amendment in their written statements filed earlier did not specifically set out which portions of the original pleadings were sought to be deleted and what were the averments which were sought to be added or substituted in the original pleadings. What the amendment applicants did was to give in their applications a vague idea of the nature of the intended amendment and then annex a new written statement with the application to be substituted in place of the original written statement. Such a course is strange and unknown to the procedure of amendment of pleadings. A pleading, once filed, is a part of the record of the court and cannot be touched, modified, substituted, amended or withdrawn except by the leave of the court. Order 8 Rule 9 CPC prohibits any pleadings subsequent to the written statement of a defendant being filed other than by way of defence to a set-off or counterclaim except by the leave of the court and upon such terms as the court thinks fit. Section 153 CPC entitled "General power to amend" provides that the court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. Order 6 Rule 17 CPC confers a discretionary jurisdiction on the court exercisable at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The Rule goes on to provide that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Unless and until the court is told how and in what manner the pleading originally submitted to the CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[24]
court is proposed to be altered or amended, the court cannot effectively exercise its power to permit amendment. An amendment may involve withdrawal of an admission previously made, may attempt to introduce a plea or claim barred by limitation, or, may be so devised as to deprive the opposite party of a valuable right accrued to him by lapse of time and so on. It is, therefore, necessary for an amendment applicant to set out specifically in his application, seeking leave of the court for amendment in the pleading, as to what is proposed to be omitted from or altered or substituted in or added to the original pleading."
"14. In Pleadings: Principles and Practice by Jacob and Goldrein (1990 Edn.) it is stated that a party served with a pleading which is subsequently amended may not amend his own pleading and may rely on the rule of implied joinder of issue but "if he does amend his own pleading, he is not entitled to introduce any amendment that he chooses. He can only make such amendments as are consequential upon the amendments made by the opposite party" (at p. 193).
* * * "In all cases except where amendment is allowed without leave, the party seeking or requiring the amendment of any pleading must apply to the court for leave or order to amend. The proposed amendments should be specified either by stating them, if short, in the body of the summons, notice or other application or by referring to them therein. In practice leave to amend is given only when and to the extent that the proposed amendments have been properly and exactly formulated, and in such case, the order giving leave to amend binds the party making the amendment and he cannot amend generally." (at pp. 206-07)."
"15. The court may allow or refuse the prayer for amendment in sound exercise of its discretionary jurisdiction. It would, therefore, be better if the reasons persuading the applicant to seek an amendment in the pleadings as also the grounds explaining the delay, if there be any, in seeking the amendment, are stated in the application so that the opposite party has an opportunity of meeting such grounds and none is taken by surprise at the hearing on the application."
"16. How an amendment allowed by the court is to be effectuated in the pleadings? English practice in this regard is stated in Halsbury's Laws of England (4th Edn., Vol. 36, para 63, at pp. 48-49) as under:
"63. Mode of amendment.--A pleading may be amended by written alterations in a copy of the document which has been served, and by additions on paper to be interleaved with it if necessary. However, where the amendments are so numerous or of such nature or length that to make written alterations of the document so as to give effect to them would make it difficult or inconvenient to read, a fresh document must be prepared incorporating the amendments. If such extensive amendment is required to a writ it must be reissued. An amended writ or CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[25]
pleading must be indorsed with a statement that it has been amended, specifying the date on which it was amended, the name of the Judge, master or registrar by whom any order authorizing the amendment was made and the date of the order; or, if no such order was made, the number of the rule in pursuance of which the amendment was made. The practice is to indicate any amendment in a different ink or type from the original, and the colour of the first amendment is usually red."
"17. Stone and Iyer in Pleadings (2nd Edn.) state the practice in regard to incorporating amendments in pleading as under (at p. 165):
"In England it often happens that before the case comes into court and while still the Master is exercising the powers conferred by a summons for directions, counsel seek leave to amend not once but several times. The practice is to amend first in red and make later amendments in different coloured inks. A practice which we think might, with advantage, be followed would be to place before the Court, as one places before a Master in England, the proposed amendments. These may or may not be allowed as proposed, or may be altered before leave is given. Leave having been given, a new plaint or written statement showing the old pleading and with the amendments written or typed in might then be prepared and taken on the file of the Court. In cases where the addition is substantial it may be necessary to deliver a copy of the pleading as amended. If the old matter is scored out, it must be done in such a manner as to show the original pleading and the alteration. Under Order VI Rule 7 CPC, a party has apparently to amend his pleading while it is in court. Under the old Code it was returned to him for amendment. The Court may even now have power to return it if it is necessary to do so. Where leave to amend is asked for, the actual amendment must be formulated before leave is given. If it is proposed to apply for amendment, it is desirable to inform the other side so that there can be no question of surprise and no adjournment may be necessary on allowing the amendment. Pursuant to the leave granted the proceedings should be amended before the judgment is pronounced."
"18. Thus, once a prayer for amendment is allowed the original pleading should incorporate the changes in a different ink or an amended pleading may be filed wherein with the use of a highlighter or by underlining in red the changes made may be distinctly shown. The amendments will be incorporated in the pleading by the party with the leave of the court and within the time limited for that purpose or else within fourteen days as provided by Order 6 Rule 18 CPC. The court or an officer authorized by the court in this behalf, may compare the original and the amended pleading in the light of the contents of the amendment application and the order of the court permitting the same and certify whether the amended pleading conforms to the order of the court permitting the amendment. Such practice accords with the provisions of the Code of Civil Procedure and also preserves the sanctity of record of the court. It is also conducive to the ends of justice inasmuch as by a bare look at the CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[26]
amended pleading the court would be able to appreciate the shift in stand, if any, between the original pleading and the amended pleading. These advantages are in addition to convenience and achieving maintenance of discipline by the parties before the court. Amendments and consequential amendments, allowed by the court and incorporated in the original pleadings, would enable only one set of pleadings being available on record and that would avoid confusion and delay at the trial. Most of the High Courts in the country follow this practice, if necessary by making provisions in the Rules framed by the High Court for governing the subordinate courts and their original side, if there be one. In fact, in the State of Punjab and Haryana and the Union Territory of Chandigarh, there is a local amendment whereby the text of Rule 17 in Order 6 CPC has been renumbered as sub-rule (1) and the following sub-rule (2) added:
"17. (2) Every application for amendments shall be in writing and shall state the specific amendments which are sought to be made indicating the words or paragraphs to be added, omitted or substituted in the original pleading."
The abovesaid Rule appears to have been completely overlooked while moving the application for amendment. It is expected that the courts in Punjab, Haryana and Chandigarh would follow the Rule in letter and spirit."
"19. When one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6 Rule 17 CPC which, of course, would ordinarily and liberally be allowed. Such amendments are known as consequential amendments. The phrase "consequential amendment" finds mention in the decision of this Court in Bikram Singh v. Ram Babo1. The expression is judicially recognized. While granting leave to amend a pleading by way of consequential amendment the court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of an amendment by the opposite party. A new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment."
"20. Some of the High Courts permit, as a matter of practice, an additional pleading, by way of response to the amendment made in the pleadings by opposite party, being filed with the leave of the court. Where it is permissible to do so, care has to be taken to see that the additional pleading is confined to an answer to the amendment made by the opposite party and is not misused for the purpose of setting up altogether new pleas springing a surprise on the opposite party and the court. A reference to Order 6 Rule 7 CPC is apposite which provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same."
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[27]
(b) (1976) 4 SCC 320 "M/S Modi Spinning and Weaving Mills Co. Ltd. & anr. Vs. M/S Ladha Ram & Co." wherein the Hon'ble Apex Court held as under:-
"10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court."
(c) (1998) 1 SCC 278 "Heeralal Vs. Kalyan Mal & ors." wherein the Hon'ble Apex Court held as under:-
"10. Consequently it must be held that when the amendment sought in the written statement was of such a nature as to displace the plaintiff's case it could not be allowed as ruled by a three-member Bench of this Court. This aspect was unfortunately not considered by the latter Bench of two learned Judges and to the extent to which the latter decision took a contrary view qua such admission in written statement, it must be held that it was per incuriam being rendered without being given an opportunity to consider the binding decision of a three-member Bench of this Court taking a diametrically opposite view."
(d) (2008) 5 SCC 117 "Chander Kanta Bansal Vs. Rajinder Singh Anand" wherein the Hon'ble Apex Court held as under:-
"11. In order to find out whether the application of the defendant under Order 6 Rule 17 for amendment of written statement is bona fide and sustainable at this stage or not, it is useful to refer to the relevant provisions of CPC. Order 6 Rule 17 reads thus:
"17. Amendment of pleadings.--The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[28]
This Rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment."
"19. As observed earlier, the suit filed in the year 1986 is for a right of passage between two portions of the same property dragged for a period of 21 years. In spite of long delay, if acceptable material/materials placed before the court show that the delay was beyond their control or diligence, it would be possible for the court to consider the same by compensating the other side by awarding costs. As pointed out earlier, when she gave evidence as DW 1, there was no whisper about the written document/partition between the parties. On the other hand, she asserted that partition was oral. Now by filing the said application, she wants to retract what she pleaded in the written statement, undoubtedly it would deprive the claim of the plaintiff. We are also satisfied that she failed to substantiate inordinate delay in filing the application that too after closing of evidence and arguments. All these aspects have been considered by the High Court. We do not find any ground for interference in the order of the High Court, on the other hand, we are in entire agreement with the same."
(e) (2009) 10 SCC 84 "Revajeetu Builders and Developers Vs. Narayanaswamy and Sons & ors." wherein the Hon'ble Apex Court held as under:-
"58. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment."
No prejudice or injustice to other party "59. The other important condition which should govern the discretion of the court is the potentiality of prejudice or injustice which is likely to be caused to the other side. Ordinarily, if the other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. The courts have very wide discretion in the matter of amendment of CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[29]
pleadings but court's powers must be exercised judiciously and with great care."
"60. In Ganga Bai case this Court has rightly observed: (SCC p. 399, para 22) "22. ... The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court." Costs "61. The courts have consistently laid down that for unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. In our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive:
(i) At what stage the amendment was sought.
(ii) While imposing the costs, it should be taken into consideration whether the amendment has been sought at a pre-trial or post- trial stage.
(iii) The financial benefit derived by one party at the cost of other party should be properly calculated in terms of money and the costs be awarded accordingly.
(iv) The imposition of costs should not be symbolic but realistic.
(v) The delay and inconvenience caused to the opposite side must be clearly evaluated in terms of additional and extra court hearings compelling the opposite party to bear the extra costs.
(vi) In case of appeal to higher courts, the victim of the amendment is compelled to bear considerable additional costs.
All these aspects must be carefully taken into consideration while awarding the costs."
"62. The purpose of imposing costs is to:
(a) discourage mala fide amendments designed to delay the legal proceedings;
(b) compensate the other party for the delay and the inconvenience caused;
(c) compensate the other party for avoidable expenses on the litigation which had to be incurred by the opposite party for opposing the amendment; and
(d) to send a clear message that the parties have to be careful while drafting the original pleadings."
Factors to be taken into consideration while dealing with applications for amendments CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[30]
"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."
"64. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments." "65. When we apply these parameters to the present case, then the application for amendment deserves to be dismissed with costs of Rs. 1,00,000 (Rupees one lakh) because the respondents were compelled to oppose the amendment application before different courts. This appeal being devoid of any merit is accordingly dismissed with costs."
(f) (2013) 9 SCC 485 "Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka & ors." wherein the Hon'ble Apex Court held as under:-
"7. We have heard the learned counsel appearing for both sides and have minutely gone through the pleadings of the parties and the amendment petition. From a perusal of the amendment petition, it reveals that the main ground for seeking relief is that Respondents 1 to 3-plaintiffs were allegedly not aware of the conveyance deed dated 8-2-1989. For better appreciation, Para 32(b) of the amendment petition is reproduced hereinbelow:
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[31]
"The plaintiffs say that all documents were applied under RTI and some of the same were received by the plaintiffs on 2-3-2009. The plaintiffs further say that prior thereto the plaintiffs were unaware of any such conveyance dated 8-2-1989. The plaintiffs further say that for the first time after going through the certified copies received under the RTI Act the plaintiffs came to know about such manipulation and forgery in the registered conveyance dated 8-2-1989. The plaintiffs further say that the signatures of the deceased Jamal Gani Khorajia have been got forged and documents executed and registered and a signature got manipulated through some fake persons, who must have impersonated deceased Mr Jamal Gani Khorajia. The plaintiffs say that it is the matter of common sense that when Jamal Gani Khorajia had expired on 14-8-1984 then how could he execute the said conveyance dated 8-2-1989 after 5 years from the date of his death."
Prima facie the aforesaid statement made in the amendment petition is not correct."
"8. Indisputably, Respondent 1-plaintiff was the office-bearer of the Society at the relevant time and by resolution taken by the Society Respondent 1 was authorised to complete the transaction. Hence, it is incorrect to allege that Respondent 1-plaintiff was not aware about the transaction of 1989. Moreover, before the institution of the suit in the year 2010, the plaintiffs allegedly came to know about the conveyance deed dated 8-2-1989, sometime in the year 2009, but relief was not sought for in the plaint which was filed much later i.e. 14-10-2010. The High Court has not considered these undisputed facts and passed the impugned order on the general principles of amendment as contained in Order 6 Rule 17 of the Code of Civil Procedure. Hence we do not find any ground for allowing the amendment sought for by the plaintiffs which was not only a belated one but was clearly an afterthought for the obvious purpose to avert the inevitable consequence. The High Court has committed serious error of law in setting aside the order passed by the trial court whereby the amendment sought for was dismissed. The impugned order1 of the High Court cannot be sustained in law."
"9. For the aforesaid reasons, the appeal is allowed, the impugned order1 passed by the High Court is set aside and the order passed by the trial court is restored. No order as to costs."
(g) (2019) 4 SCC 332 "M. Revanna Vs. Anjanamma" wherein the Hon'ble Apex Court held as under:-
"7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[32]
proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money."
"9. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiffs 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff 6 Respondent 1 herein."
"10. Accordingly, the order of the High Court quashing the order of the trial court dated 14-11-2008, which had allowed the application for amendment of the plaint, is hereby confirmed. The appeal fails and is hereby dismissed."
[19] Mr. H.S. Paonam, learned senior counsel appearing for the respondent submitted that in the arbitration proceedings, the sole arbitrator passed a Procedural Order No. 1 dated 07-10-2021 in the presence of the representatives of both the parties and the said order was circulated by the sole arbitrator to both the parties and that the said order was never challenged and the procedure as prescribed in the said procedural order dated 07-10-2021 was duly followed during the entire arbitration proceedings. At para IV of the said procedural order, the mode of communication by the arbitrator is provided. The same are reproduced hereunder for ready reference:-
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[33]
"Communications by the Arbitrator:-
1. All orders and communications shall be signed by the Arbitrator.
2. Communications by the Arbitrator to the parties and their counsel shall be made by way of e-mail on the following e-addresses :-
For the Claimant:-
Mr. B. Sunil Shetty, Advocate, 385/386, Devam, Amarjyothi Layout, Domlur, Bangalore-560071, Karnataka ([email protected]) Representatives of the Claimant:-
(i) Mr. P. Pratap ([email protected])
(ii) Mr. Vijayan R.P. Nair [email protected]) For the Respondent:-
Mr. Sagolsem Jasobanta Singh, Advocate ([email protected]) Representatives of the Respondent:-
Mr. T. Rabindrakumar Singh, Chief Engineer (NH&NEC) (Email- [email protected] [email protected] [email protected]) Communication on the addresses as above shall be treated as effective communication to that side."
[20] The learned senior counsel submitted that the learned sole arbitrator passed the Arbitral Award on 20-02-2023 and on the same day itself, the learned sole arbitrator sent an e-mail to the petitioner and its counsel at their e-mail addresses mentioned above as well as to the respondent. It has been submitted that both the parties and their counsels were informed about the passing of the Arbitral Award dated 20-02-2023 and the signed scanned copy of the Arbitral Award was also served upon the petitioner and the respondent as attachment to the e-mail dated 20-02-2023, meaning thereby that the parties to the present CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[34]
petition were firstly put to notice about the passing of the Arbitral Award and secondly, the signed scanned copy of the award was also provided to the parties on 20-02-2023 itself.
[21] Mr. H.S. Paonam, learned senior counsel also submitted that in the reply filed by the respondent in connection with condonation application filed by the petitioner, a preliminary objection was raised about the maintainability of the arbitration petition since it was filed beyond the period of limitation of 120 days as prescribed under Section 34(3) of the Act. Additionally, the respondent also raised another preliminary objection at para J of the reply filed by the respondent by stating that the petitioner's counsel was apprised about passing of the Arbitral Award on 20-02-2023 and the signed copy of the award was also served upon the petitioner and as such, the arbitration petition filed by the petitioner is beyond the statutory period of limitation prescribed under the Act, hence liable to be rejected/dismissed on that ground itself.
[22] The learned senior counsel further submitted that the most crucial issue to be decided is the date on which the petitioner received a signed copy of the Arbitral Award for the purpose of determining the period of limitation for filing the arbitration petition as provided under Section 34(3) of the Act. It has been submitted that the petitioner sought for amendment of the said crucial date of receipt of the said Arbitral Award by the petitioner from 14-03-2023 to 05-04-2023 in both the CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[35]
condonation application as well as the rejoinder filed by the petitioner and such drastic changes were allowed by the learned District Judge. It has also been submitted that the original stand taken by the respondent about the date of serving a signed copy of the Arbitral Award to the petitioner is on 20-02-2023 and in the amendments sought for by the respondent, the said crucial date of service of the Arbitral Award to the petitioner remain unchanged and the respondent only elaborated the mode of service by inserting a few words that the same was served by way of an e-mail from the Arbitral Tribunal.
The learned senior counsel strenuously submitted that by the proposed amendments of the pleadings made in the reply filed by the respondent, the respondent neither seeks to introduce an entirely new and different case by raising new pleas nor does it attempt to discard and shift away from the plea made by the respondent in its reply. The learned senior counsel submitted that the objection raised by the petitioner to the amendments is misconceived and without any merit and as such, the same is liable to be rejected.
[23] It has been submitted by the learned senior counsel that the petitioner, having twice, sought and obtained amendments to his pleadings, thereby fundamentally altering their original position, cannot justly contest the respondent's analogous request. The respondent's application which merely sought to provide the detailed elucidations of CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[36]
existing contention without altering their core substance aligns with the principle of parity and that granting such amendments to the respondent is both equitable and necessary to maintain procedural fairness as it embodies the fair application of the law and upholds the principle of justice and equality before the court.
[24] The learned senior counsel further submitted that granting the proposed amendments was crucial for the effective adjudication of the central issue and it will significantly contribute to the fair administration of justice and that the amendments are imperative for accurately determining the date of proper service of the Arbitral Award and the amendments does not alter the essence or nature of original pleadings but seeks to address the pivotal question of the commencement date for the limitation period prescribed under Section 34(3) of the Act. It has been submitted that by permitting the amendments, the court will be in a better position to deliver a just and informed judgment, ensuring that the limitation period is correctly applied and justice is unequivocally served.
[25] The learned senior counsel cited the following case laws in support of his contentions:-
(a) (2017) 8 SCC 567 "State of Bihar & ors. Vs. Modern Tent House & anr." wherein the Hon'ble Apex Court held as under:-
"8. We have perused the amendment application filed by the appellants. We find that firstly, the proposed amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement; secondly and in other words, it is in the nature of amplification of the defence already taken; thirdly, CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[37]
it does not introduce any new defence compared to what has originally been pleaded in the written statement; fourthly, if allowed, it would neither result in changing the defence already taken nor will result in withdrawing any kind of admission, if made in the written statement; fifthly, there is no prejudice to the plaintiffs, if such amendment is allowed because notwithstanding the defence or/and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs; and lastly, since the trial is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should have been allowed by the courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises."
"9. In view of the foregoing discussion, the appeal succeeds and is allowed. The impugned order1 is set aside. The application (MA No. 28 of 2002) dated 7-4-2005 (Annexure P-4) filed by the appellants under Order 6 Rule 17 of the Code is allowed. The appellants (defendants) are permitted to amend their written statement and incorporate the amendment as prayed for in their application."
(b) 2022 SCC Online SC 1128 "Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited & anr." wherein the Hon'ble Apex Court held as under:-
"25. The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. The proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the application for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement. (See South Konkan Distilleries v. Prabhakar Gajanan Naik.) CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[38]
"26. But undoubtedly, every case and every application for amendment has to be tested in the applicable facts and circumstances of the case. As the proposed amendment of the pleadings amounts to only a different or an additional approach to the same facts, this Court has repeatedly laid down the principle that such an amendment would be allowed even after the expiry of statutory period of limitation."
"27. In this behalf, in A.K. Gupta & Sons Ltd. v. Damodar Valley Corpn, this Court held thus:
"7. ... a new case or a new cause of action particularly when a suit on the new case or cause of action is barred : Weldon v. Neal. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation:"
(c) 2023 SCC Online SC 256 "Ganesh Prasad Vs. Rajeshwari Prasad & ors." wherein the Hon'ble Apex Court held as under:-
"33. There cannot be any doubt or dispute that the courts should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order VI Rule 17 being one of them. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das reported in (2008) 8 SCC 511, the law has been laid down by this Court in the following terms: (SCC p. 517, para 16) "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar [(1990) 1 SCC 166].)"
"36. In one of the recent pronouncements of this Court, in the case of Life Insurance Corporation of India v. Sanjeev Builders Private CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[39]
Limited, Civil Appeal No. 5909 of 2022 dated 01.09.2022, the position of law has been explained as under:
"70. ..... (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[40]
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr.
Gandhi, 2022 SCC OnLine Del 1897)"
"37. Thus, the Plaintiffs and Defendant are entitled to amend the plaint, written statement or file an additional written statement. It is, however, subject to an exception that by the proposed amendment, an opposite party should not be subject to injustice and that any admission made in favour of the other party is not but wrong. All amendments of the pleadings should be allowed liberally which are necessary for determination of the real controversies in the suit provided that the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken."
(d) (2018) 2 SCC 132 "Mohinder Kumar Mehra Vs. Roop Rani Mehra & ors." wherein the Hon'ble Apex Court held as under:-
"16. The judgment on which much reliance has been placed by the learned counsel for the appellant is Rajesh Kumar Aggarwal v. K.K. Modi. This Court had occasion to consider and interpret Order 6 Rule 17 CPC in paras 15 and 16, in which following has been held:
(SCC pp. 392-93) "15. The object of the Rule is that the courts should try the merits of the case that come before them and should, consequently, CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[41]
allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties."
"22. The proviso to Order 6 Rule 17 CPC prohibited entertainment of amendment application after commencement of the trial with the object and purpose that once parties proceed with the leading of evidence, no new pleading be permitted to be introduced. The present is a case where actually before parties could lead evidence, the amendment application has been filed and from the order dated 14-2-2014, it is clear that the plaintiff's case is that parties have led evidence even on the amended pleadings and the plaintiff's case was that in view of the fact that the parties led evidence on amended pleadings, the allowing of the amendment was a mere formality. The defendant in no manner can be said to be prejudiced by the amendments since the plaintiff led his evidence on amended pleadings also as claimed by him. "28. While considering the prayer of amendment of the pleadings by a party, this Court in Mahila Ramkali Devi v. Nandram has again reiterated the basic principles, which are to be kept in mind while considering such applications in paras 20, 21 and 22, which is quoted as below: (SCC p. 138) "20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.
21. In our view, since the appellant sought amendment in Para 3 of the original plaint, the High Court ought not to have rejected the application.
22. In Jai Jai Ram Manohar Lal v. National Building Material Supply, this Court held that the power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any such narrow or technical limitations."
"30. Taking into overall consideration of the facts of the present case and specially the fact that evidence by the parties was led after the filing of the amendment application, we are of the view that justice could have been served in allowing the amendment application. We, thus, allow the appeal and set aside the order of the High Court as well as the order of the Additional District Judge. The CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[42]
amendment application IA No. 1001 of 2011 stand allowed. Both the parties have led their evidences and case has already been fixed for hearing, however, to avoid any prejudice to the parties, justice will be served in giving a limited opportunity to the parties to lead additional evidence, if they so desire.
(e) (2021) 20 SCC 210 "Nitaben Dinesh Patel Vs. Dinesh Dahyabhai Patel" wherein the Hon'ble Apex Court held as under:-
"8. Order 6 Rule 17 CPC provides for amendment of the pleadings. The court may at any stage of the proceedings allow either party to alter or amend his pleadings (including written statement) in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Proviso to Order 6 Rule 17 CPC further provides that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial."
"9. Relying upon the proviso to Order 6 Rule 17 CPC, the High Court has refused the amendment sought qua Paras 35 and 36. However, it is required to be noted that as per the case of the appellant wife, she actually came to know about the actual marriage between the respondent and Hinaben Manubhai Panchal on 14-12-2006 only during the cross-examination of the respondent and when the marriage certificate was produced on record. It is required to be noted that right from the very beginning, it was the specific case on behalf of the appellant that the respondent husband is living in adultery with Hinaben Manubhai Panchal and in the rejoinder- affidavit filed by the respondent husband, the respondent husband denied the allegation of adultery and stated that Hinaben Manubhai Panchal is manager in the hospital run by him and she is looking after the hospital and accounts as a job. Though, the respondent husband had married with Hinaben Manubhai Panchal on 14-12- 2006, he did not disclose the correct and true facts and suppressed the material facts. Only in the cross-examination, he admitted the marriage with Hinaben Manubhai Panchal on 14-12-2006 and produced the marriage certificate. Therefore, in view of the above, the restrictions as per the proviso to Order 6 Rule 17 CPC shall not be applicable."
"11. Therefore, as such, and looking to the case on behalf of the appellant, so pleaded in the written statement, the learned Family Court was right and justified in allowing the amendment sought qua Paras 35 and 36. The High Court has committed an error in misapplying the proviso to Order 6 Rule 17 CPC and has erred in rejecting the amendment sought qua Paras 35 and 36 in application (Ext. 281)."
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[43]
(f) (2004) 13 SCC 40 "Ram Sahai Vs. Ramanand & ors."
wherein the Hon'ble Apex Court held as under:-
"2. The plaintiff in the original suit filed seeking partition of joint Hindu properties has challenged the order passed on an application filed by him praying for amendment of the plaint. The application under Order 6 Rule 17 CPC was filed by the appellant seeking leave to amend the plaint and add thereto certain more properties which, according to the appellant, were also liable to partition. It has been inter alia averred in the application that only after filing of the written statement by the adoptive mother of the appellant, did he come to know that the properties which were sought to be added to the plaint are ancestral joint Hindu properties. The amendment application having been dismissed and so also the revision petition by the High Court, the appellant is before this Court challenging those orders. The suit is at the initial stage. Issues have not even been framed. The question whether the properties sought to be added are the personal properties of the defendant and other third parties and thus are not liable to be partitioned is not relevant for considering application for amendment. We are also unable to sustain the view of the High Court that the scope of the litigation will stand enlarged by addition of more properties. Adding more properties would not result in changing the nature and character of the suit. The effect of those properties standing in the name of the defendant and other third parties would, of course, be examined on merit in accordance with law by the trial court and on the facts of the case when the suit is at the initial stage it cannot be made a ground to reject the application for amendment, also bearing in view the settled position that liberal approach is required to be adopted in considering prayers of amendment of pleadings. We, of course, express no opinion on the merits of the claim of the respective parties."
"3. The order rejecting amendment of the plaint cannot be sustained."
"4. In view of the aforesaid, we set aside the impugned judgment of the High Court confirming that of the trial court and allow the application of the appellant filed under Order 6 Rule 17 CPC."
(g) (2004) 13 SCC 432 "Pradeep Singhvi & anr. Vs. Heero Dhankani & ors." wherein the Hon'ble Apex Court held as under:-
"4. Of course, by the time the defendants moved an application for amending the written statement, the trial had commenced but the proposed amendment, if allowed, would not have irreparably prejudiced the plaintiffs. At the most, the plaintiff would have been re-examined. We do not think that the trial court was justified in refusing the prayer for amendment in written statement which would have the effect of excluding the defendants from raising a plea material for their defence."
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[44]
"5. The impugned order of the trial court dated 6-2-2001 is set aside. The defendant-respondents' application for amendment in written statement which came up for hearing on 15-1-2001 is allowed but subject to payment of costs of Rs 2500 to be paid by the defendants to the plaintiffs before the trial court. Needless to say, the plaintiffs shall have the liberty of incorporating consequential amendment in the plaint or filing rejoinder to the plea raised by the defendants in the written statement by way of amendment."
(h) (2012) 11 SCC 341 "Abdul Rehman & anr. Vs. Mohd. Ruldu & ors." wherein the Hon'ble Apex Court held as under:-
"10. Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer Order 6 Rule 17 which is as under:
"17. Amendment of pleadings.--The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
"11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[45]
amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel v. Gattu Mahesh and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment.
"13. Next, we have to see whether the proposed amendments would alter the claim/cause of action of the plaintiffs. In view of the same, we verified the averments in the unamended plaint. As rightly pointed out by Ms Manmeet Arora, learned counsel for the appellants that the entire factual matrix for the relief sought for under the proposed amendment had already been set out in the unamended plaint. We are satisfied that the challenge to the voidness of those sale deeds was implicit in the factual matrix set out in the unamended plaint and, therefore, the relief of cancellation of sale deeds as sought by the amendment does not change the nature of the suit as alleged. It is settled law that if necessary factual basis for amendment is already contained in the plaint, the relief sought on the said basis would not change the nature of the suit. In view of the same, the contrary view expressed by the trial court and the High Court cannot be sustained. It is not in dispute that the relief sought by way of amendment by the appellants could also be claimed by them by way of a separate suit on the date of filing of the application. Considering the date of the sale deeds and the date on which the application was filed for amendment of the plaint, we are satisfied that the reliefs claimed are not barred in law and no prejudice should (sic would) have been caused to Respondents 1-3 (Defendants 1-3 therein) if the amendments were allowed and would in fact avoid multiplicity of litigation."
"14. The learned counsel for the appellants has also brought to our notice that the amendments were necessitated due to the observations made by the High Court in its earlier order dated 19-4-2007 in CR No. 3361 of 2007 to the effect that the appellants' application for ad interim injunction without seeking cancellation of the sale deeds is not maintainable. This aspect has not been noticed by the trial court as well as the High Court while considering the application filed under Order 6 Rule 17 of the Code."
"15. It is also brought to our notice that Respondents 2 and 3 herein, the transferees under the sale deed, are the nephews of the appellants herein and the transferors and the purchase of the suit land by them is void to their knowledge as they were equally bound by the judgment dated 20-12-1971 and compromise deed dated 4-7-1972 declaring that under the applicable customary law of inheritance to the parties therein, widows and daughters have no right of inheritance in the presence of the sons. It is the claim of the appellants that in view of the same, the respondent transferees are CRP(CRP Art. 227) No. 36 of 2024 Contd.../-[46]
not bona fide purchasers of the suit land. The learned counsel for the appellants again brought to our notice that these facts were specifically stated in the unamended plaint and, therefore, the amendment seeking incorporation of relief of declaration that the sale deeds are void does not change the nature of the suit. Because of those allegations in the unamended plaint, the same was denied by the defendants in their written statement and we are satisfied that the necessary factual matrix as regards the relief of cancellation was already on record and the same was an issue arising between the parties."
"16. In view of the stand taken by Respondents 1-3 herein/Defendants 1-3 in their written statement and the observation of the High Court in the application filed for injunction, we are of the view that the proposed amendment to include a relief of declaration of title, in addition to the permanent injunction, is to protect their interest and not to change the basic nature of the suit as alleged."
"17. In Pankaja v. Yellapa this Court held that if the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. In the same decision, it was further held that an amendment seeking declaration of title shall not introduce a different relief when the necessary factual basis had already been laid down in the plaint in regard to the title."
"18. We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties."
"19. In the light of various principles which we have discussed and the factual matrix as demonstrated by the learned counsel for the appellants, we are satisfied that the appellants have made out a case for amendment and by allowing the same, the respondents herein (Defendants 1-3) are in no way prejudiced and they are also entitled to file additional written statement if they so desire. Accordingly, the order of the trial court dated 6-6-2007 dismissing the application for amendment of plaint in Suit No. 320 of 2003 as well as the High Court in Abdul Rehman v. Mohd. Ruldu dated 13-11-2007 are set aside. The application for amendment is allowed. Since the suit is of the year 2003, we direct the trial court to dispose of the same within a period of six months from the date of receipt of copy of the judgment after affording opportunity to all the parties concerned."
"20. The appeal is allowed. No order as to costs."
(i) (2021) SCC Online Cal. 2020 "Exide Industries Limited (formerly known as Chloride India Limited Vs. Urmila Pasari & ors." wherein the Hon'ble High Court held as under:-
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[47]
"19. That apart, what clinches the issue in favour of the opposite party Nos. 1 to 3 is that the first amendment to the plaint, which was allowed on consent, categorically averred the requirement of the present plaintiffs and their respective families, having no reasonable suitable accommodation at Calcutta. Paragraph 6 of the first amended plaint clearly discloses such pleadings." "20. By virtue of the second amendment, the present plaintiffs only sought to introduce and elaborate further facts within the four corners of the amended plaint. The amendments sought, let alone introducing a 'new' cause of action, were only in the nature of elaborating the pleadings already existent after the first amendment. Since the requirement of the present plaintiffs had already been pleaded in the first amendment, there cannot be any scope of perceiving the second amendment as introduction of a new set of facts, comprising a fresh cause of action. Rather, as correctly observed by the Trial Court in the impugned order, the said amendment was merely clarificatory in nature and was necessary to adjudicate the dispute between the parties effectively."
"21. In any event, the petitioner and the other defendants were given the liberty to file additional written statement, thereby denying the amended pleadings."
"22. It is well-settled that, while adjudicating an amendment application, the merits of the proposed amendment cannot be gone into. In view of the second amendment to the plaint in the present case falling squarely within the ambit of the pleadings already on record and are necessary for a complete determination of the questions in controversy in the suit, the said amendment was necessary and rightly allowed by the Trial Court. There arises no question of substitution of a new cause of action, in view of the above discussions."
[26] I have heard at length and considered the rival submissions advanced by the learned senior counsels appearing for the parties.
In the present case, the real controversy to be decided is the date on which the petitioner received the Arbitral Award dated 20-02-2023. This date is very crucial for ascertaining the commencement of the limitation period prescribed for filing an application for setting aside the Arbitral Award as provided under Section 34(3) of the Act. The resolution of this question is very essential for CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[48]establishing the correct timeline within which legal recourse must be sought, thereby ensuring adherence to statutory dateline and fair administration of justice.
[27] The original plea set up by the respondent in his reply dated 14-08-2023 about the date on which the petitioner received a signed copy of the Arbitral Award dated 20-02-2023 is on 20-02-2023, i.e., on the date of passing the said Arbitral Award itself. The amendments sought for by the respondent is basically about the mode of service of the said Arbitral Award to the petitioner. By the said amendments, the respondent only elaborated that the signed scanned copy of the Arbitral Award dated 20-02-2023 was served upon the petitioner by way of an e- mail and the date of serving or communicating the said Arbitral Award to the petitioner remain unchanged even after the amendment. In my considered view, the core issue or the real controversy to be decided remain unchanged even after allowing the amendments sought for by the respondent.
[28] Allowing the proposed amendments, in my considered view, was crucial for the effective adjudication of the real controversy and it will significantly contribute to the fair administration of justice. The said amendment serves to allow for inclusion of all pertinent facts while maintaining the integrity of the case and to ensure a comprehensive and accurate presentation of the facts without causing undue prejudice to the CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[49]petitioner. The said amendment is also imperative for accurately determining the date on which the petitioner received the said Arbitral Award and such amendment does not alter the essence or nature of the original pleadings but seeks to address the pivotal question of the commencement date of the limitation period prescribed under section 34(3) of the Act. By permitting such amendment, the court will be in a better position for ensuring a just and thorough adjudication of the matter, facilitating a clear and accurate determination of the real controversy.
[29] In my considered view, the introduction of the facts regarding the service of award by e-mail is not a deviation from the respondent's original defense but rather an answer and legitimate clarification. This expansion does not displace or undermine the original defense but present a more comprehensive view on how service was executed and it reflects the respondent's right to fully disclose and substantiate all relevant methods of service. The claim of service by e-mail compliments the original defense by addressing all potential avenues of service and ensures that the case is adjudicated based on complete factual record. [30] The said amendment is not an introduction of a new case but rather a necessary clarification to fully address the complexities of the case. This is consistent with the respondent's original plea, which was focused on the date of delivery. The claim made by the petitioner that CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[50]the amendment attempts to withdraw from the original position or to defeat the petitioner's condonation application is unfounded. The amendment is a legitimate effort to ensure that all relevant details are accurately reflected in the pleadings and there is no basis for allegation of mala fides or procedural impropriety.
[31] The claim that the amendment introduces an entirely new case is misconceived. The real controversy as to when the Arbitral Award was served to the petitioner remains the same. The service of the Arbitral Award by way of an e-mail service does not negate or replace the original defense but compliments it by adressing all possible methods of communication and in my considered view, the amendments does not inflict any irreperable prejudice to the petitoner. The petitioner can be afforded an opportunity to refute any averments brought on record by such amendment.
[32] It is well settled principle of law that applications made under Order VI, Rule 17 of the CPC are to be construed liberally and courts have consistently upheld the principle that amendments to pleadings should be permitted where they serve the ends of justice and do not unduly prejudice the opposing party. This liberal approach underscores the judiciary's commitment to ensuring that cases are decided on their substantive merits rather than procedural technicalities. The Hon'ble Apex Court have consistently held that Order VI, Rule 17 of the CPC CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[51]cast an obligation on the litigants to carry out all such amendments as are necessary for the purpose of determining the real question in controversy. In the present case, the real question in controversy is the effective date of service of the Arbitral Award to the petitioner and what the respondent did by way of seeking amendments was only to elaborately explain or clarify the mode of service of the said Arbitral Award.
[33] The Hon'ble Supreme Court have consistently held that court possesses expansive discretion to permit amendments to pleadings in such a manner and on such terms as it deems just and equitable and that a rigid and hyper technical approach should not govern the consideration of amendment applications. It is settled law that court's approach, while considering amendment application, should be liberal and pragmatic specially when any potential prejudice to the opposing party can be adequately addressed through imposition of cost and that court should exercise its discretion liberally in permitting amendments, more particularly of written statements.
[34] In my considered view, the amendment application filed by the respondent is consistent with the procedural norms and aims to ensure a comprehensive and accurate presentation of the case and is just and necessary for the proper adjudication of the dispute in question, i.e., what is the effective date of service of the Arbitral Award to the petitioner. The learned District Judge's handling of the matter is both legally sound CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
[52]and procedurally correct and the decision to permit the amendment is well founded and legally tenable. The learned District Judge's decision respected the essence of the real controversy test while ensuring that the amendment did not stray from the core issue but rather provided a fuller factual context. This is consistent with judicial principles allowing for amendments which enhance clarity and completeness of the pleadings. The principle of parity, which ensures that similar leniency is extended to both the parties, is also appropriately applied by the learned District Judge in the present case. In my considered view, the impugned order is not only correct but also align with established legal principles. [35] I have also carefully perused all the judgments relied on by the learned senior counsel appearing for the petitioner, however this court is of the considered view that the said judgments are of no help to the case of the petitioner in view of the peculiar facts and circumstances of the present case.
In the result, this court did not find any ground or reason for interfering with the impugned order. Accordingly, the present petition is hereby dismissed as being devoid of merit. However, there will be no order as to cost.
JUDGE
FR / NFR
Devananda
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-