Order 31

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. VIDYA PRAKASH
DISTRICT JUDGE (COMMERCIAL COURT)-02
NEW DELHI DISTRICT, PATIALA HOUSE COURTS
NEW DELHI
CNR NO.: DLND01-005373-2021
OMP (COMM.): 81/2021
IN THE MATTER OF:-
M/S RHINO BAMBOO INDUSTRY
......PETITIONER
VERSUS
NORTH EAST CENTRE FOR TECHNOLOGY
APPLICATION AND REACH (NECTAR)
......RESPONDENT
ORDER
1. Vide this order, I shall decide the application under
Section 151 CPC dated 10.08.2024 seeking permission
to raise additional grounds and also to file additional
documents, moved by the petitioner/objector.
2. The respondent chose not to file any written reply to the
aforesaid application. Accordingly, arguments on the
aforesaid application were heard on behalf of both the
sides on 20.08.2024. I have also gone through the
material available on record, as well as the authorities
cited at the Bar.
3. In brief, the petitioner/objector has filed the present
petition under Section 34 of The Arbitration and
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Conciliation Act, 1996 (hereinafter called the Act of
1996) against the impugned award dated 15.04.2021
passed by Ld. Arbitral Tribunal, whereby the Tribunal
has awarded a sum of Rs. 18,45,760/ along with interest
@ 12% per annum on delayed payments, besides a sum
of Rs. 2,00,000/- as costs of arbitration proceedings in
favour of the respondent herein, on various grounds as
mentioned therein. However, said grounds are not being
mentioned herein as the same are not relevant for the
purpose of disposal of this application.
4. It may be noted that the present objection petition was
instituted on or about 23.08.2021 and the respondent has
already filed detailed reply of the present objection
petition. Not only this, arbitral proceedings have already
been received in this matter and the case is at the stage
of final disposal when the instant application came to be
filed by the petitioner/objector.
5. The prayer made in the instant application are two folds.
Firstly, the petitioner/objector seeks leave of the Court
to raise the following additional grounds of challenge to
the impugned award:-
(i) The respondent has no locus to file the claim before
Ld. Arbitral Tribunal for want of any valid and
subsisting arbitration agreement between the parties;
(ii) The claims raised by the respondent before Ld.
Arbitral Tribunal were hopelessly time barred; and
(iii) There was a breach of contract on the part of
National Mission on Bamboo Application
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(NMBA)/Technology Information Forecasting and
Assessment Council (TIFAC).
6.
Secondly, the petitioner seeks leave of the Court to file
the following additional documents:-
(i.) Copy of case status of Case no. 26376/2016
downloaded from the website of e-district Court;
(ii.) Copy of case status of Case no. 25935/2016
downloaded from the website of e-district Court;
(iii.) Copy of case status of Case no. 23937/2016
downloaded from the website of e-district Court;
(iv.) Copy of case status of Case no. 451294/2014
downloaded from the website of e-district Court;
(v.) Copy of case status of Case no. 11221/2016
downloaded from the website of e-district Court;
(vi.) Copy of case status of Case no. 451293/2014
downloaded from the website of e-district Court;
and
(vii.) Copy of the RTI reply dated 18.07.2017 to a
similar situated person.
7. Ld. Counsel of applicant/petitioner argued that the
aforesaid additional grounds could not be raised in the
main objection petition filed by previous Counsel of the
petitioner/objector. He further submitted that the
proposed additional documents also could not be filed
by previous Counsel of petitioner/objector and thus,
same are being sought to be raised/filed by way of
application under consideration. He contended that this
Court has got power to allow the petitioner to raise
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additional grounds of challenge to the impugned award,
as also to file additional documents even at such a
belated stage by virtue of inherent power conferred by
Section 151 CPC. He submitted that said additional
documents would help the Court in deciding the
objection petition and therefore, urged that the
application may be allowed. In order to buttress his
submissions, Ld. Counsel of petitioner/objector has
relied upon the judgment of Hon’ble Apex Court in the
case of ‘
State of Maharashtra vs. Hindustan
Construction Company Ltd.’ reported as (2010) 4 SCC
518.
8. Per contra, the application is strongly opposed on behalf
of non-applicant/respondent on the ground that the
petitioner is not allowed under the law to raise additional
grounds of challenge by way of such application, in
view of the fact that maximum period of three months
plus additional period of 30 days, as provided in Section
34 (3) and proviso appended thereto of the Act of 1996,
has already expired much before the filing of the present
application. Ld. Counsel of respondent further opposed
the application on the ground that none of these
proposed additional documents were filed by petitioner
before Ld. Arbitral Tribunal and also on the ground that
almost all these documents have their existence since
prior to the initiation of arbitration proceedings which
culminated into the impugned arbitral award. He,
therefore, urged that the application is liable to be
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dismissed with exemplary costs. In support of his
submissions, he also relied upon the decision of Hon’ble
Delhi High Court in the case of ‘
NDMC vs. Decor India
Pvt. Ltd.’ OMP (Comm.) 502/2020 and ‘
Decor India
Pvt. Ltd. vs. NDMC’ OMP (ENF.) (Comm.) 24/2021
decided on 16.02.2023.
9. On specific query put to Ld. Counsel of
petitioner/objector, he fairly conceded that none of these
proposed additional documents was ever filed or was
even sought to be filed in arbitration proceedings while
before Ld. Arbitral Tribunal at any point of time. In this
backdrop, this Court is of the considered opinion that the
petitioner/objector is not permitted under law to file any
new document(s) for the first time in the objection
petition filed against the impugned award. The reason is
quite obvious that since these proposed additional
documents were never filed in arbitration proceedings,
Ld. Arbitral Tribunal never had any occasion to consider
the same while passing the impugned award under
challenge by way of present objection petition. Hence,
this Court is duty bound under the law to examine the
impugned award within the ambit of law solely on the
basis of material available in the arbitral record and not
beyond that. Accordingly, the prayer to the extent of
grant of leave to file additional documents is found to be
totally misconceived and thus, cannot be allowed under
the law.
10. This brings me down to the second limb of prayer made
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in the present application
i.e. leave to raise aforesaid
additional grounds of challenge. No doubt, the Court has
got every power to allow the petitioner/objector to
amend the objection petition thereby raising additional
grounds of challenge, as held by the Hon’ble Apex
Court in the case of State of Maharashtra (supra) as
relied on behalf of petitioner/objector. However, the
Hon’ble Apex Court has held in Para no. 30 of the
judgment that the words
‘the courts finds that’ used in
Section 34 (2) (b) of The Act of 1996 do enable the
Court where the application under Section 34 has been
made within prescribed time, to grant leave to amend
such application if the very peculiar circumstances
(
emphasis supplied) of the case so warrant and it is so
required in the interest of justice.
11. Now, reverting back to the facts of the present case. As
already noted above, the applicant/petitioner has moved
the instant application under Section 151 CPC thereby
simply seeking permission to raised additional grounds
of challenge against the impugned award and nothing
beyond that. In other words, the application is
completely silent as regards the prayer for carrying out
any amendment in the objection petition. That being so,
the above cited judgment of Hon’ble Apex Court relied
on behalf of petitioner, is entirely distinguishable on
facts and circumstances of present case and thus, same is
of no help to the case of petitioner/objector.
12. Hon’ble Delhi High Court in the case of NDMC (supra)
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as relied on behalf of respondent, has held in Para no. 11
of the order as under:-
“
Bearing in mind the aforesaid principles that have
been enunciated in the aforenoted two decisions and
when this Court tests the proposed amendments on
that pedestal, it finds that the ground which is
proposed to be introduced is clearly a new case
which has no foundation in the original petition. It
is thus not an expansion or amplification of a
ground which may be said to form part of challenge
to the Arbitral Award. The application for
amendment has come to be preferred long after the
original petition itself came to be instituted before
this Court on 07 October 2020. While it may still be
open for the Petitioner to assail the Arbitral Award
on the ground of fraud based on material facts that
form part of the record and so existed before
Tribunal, the introduction of these new facts would
clearly not be merited. Suffice it to note that even in
Hindustan Construction, the Supreme Court had
referred to the imperative of peculiar circumstances
existing and the amendments being warranted in the
interest of justice. The proposed amendments fail to
meet those tests as propounded. ”
13. In the case in hand, the applicant/petitioner, in the
opinion of this Court, has also failed to make out any
case of ‘
very peculiar circumstances’ so as to be entitled
for the grant of leave to raise such additional grounds.
As stated above, the present objection petition was filed
in the year 2021 and the matter is at the stage of final
disposal and this application is moved after about 3
years of the institution of this objection petition and that
too, without disclosing any ground whatsoever for not
moving proper application at the earliest available
opportunity. Mere change of Counsel by the petitioner
or by shifting blame upon previous Counsel representing
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the petitioner in this matter, would not constitute any
sufficient ground for allowing the prayer made in the
application.
14. In view of the foregoing reasons and the discussions
made hereinbefore, this Court is of the view that the
application under consideration is devoid of any merit.
Consequently, the same is hereby dismissed. However,
there shall be no order as to costs.
Announced in the open Court
On 22nd Day of August, 2024.
(VIDYA PRAKASH)
DISTRICT JUDGE (COMMERCIAL COURT)-02
PATIALA HOUSE COURTS, NEW DELHI
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