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IN THE HIGH COURT OF BOMBAY
D.R. Dhanuka, J.
Maharashtra State Co-operative Cotton Growers’ Marketing
Federation Ltd. and another ... Petitioners.
Versus
Ralli Bros. Coney Ltd., U.K. and others ... Respondents.
Arbitration Petition No. 97 of 1986 along with Chamber Summons No. 998 of 1990, decided on 11/16-7-1991.
Advocates appeared:
Virendra Tulzapurkar i/by S. Crawford Bayley Co., for petitioner.
A.J. Rana with R.R. Sesi and A.M. Shah, for the respondents.
Section 2 (b)-Express Award-Meaning of.
(1) Final and operative part of decision alone can be described as an a ward.
(2) Original award ceased to have an independent existence and merged with the award of the appellate authority constituted under Byelaws of East India Company Association Ltd.
(3) Only operative part of original award is incorporated in appellate award and not reasons farming part of original award. The appellate award stands by itself as a non speaking independent award and cannot be challenged with reference to reasons set out in the original award.
(4) The award is final both on facts as well as on law. The award can be challenged on limited grounds like fraud, corruption or misconduct and in certain category of cases on ground of error of law apparent on face of award. It is well settled that the court must lean in favour of the award and grounds of challenge cannot be extended or enlarged by anology. It is equally well settled that the jurisdiction of the court to consider the grounds of challenge in respect of the award should fit in within a, bit of permissible scrutiny by the court under Sections 30 and 33 of the Arbitration Act, 1940.
Section 11, Order 6 Rule 17-Application for amendment- Allowed-Main proceedings after amendment-Plea of limitation raised-Whether to be allowed and principles of res judicata and estoppel not applicable-While considering application for amendment court exercises discretion after considering all facts including plea of limitation for limited purpose of deciding as to whether pleadings should be allowed to be amended in interest of justice-Held-Plea of limitation in main proceedings could be allowed to be raised Principles of res judicata and estoppel not applicable.
While considering the application for amendment the Court does not adjudicate upon issues which would arise on the pleadings at the trial of the main proceedings. While considering the application for amendment, the Court exercises its discretion after considering "II facts including the plea of limitation for limited purpose of deciding as to whether t he pleading should be allowed to be amended in the interests of justice. It is open to the contesting respondent to contend at the final hearing of the petition that the main proceeding was liable to be treated as time barred not Withstanding the order of the Court permitting amendment of the p leading, even though the application for amendment was opposed inter alia on the ground of limitation. Even when an application for amendment is opposed on the ground of limitation by the party resisting the amendment, the Court is not bound to record a finding on the issue of limitation and reject or allow the application for amendment after expressing its definite view in respect of the contentions urged. The Court may attach some weight age to each of the grounds of opposition to the application for amendment and then take an overall view as to whether the pleading should be allowed to be amended in the interests of justice or not. Therefore although the general principles of res-judicata could be applicable to different stages of same suit, one must have regard to nature of proceedings for amendment of pleadings and scope of enquiry in such proceeding and the specific provision made in the order granting amendment.
Section 26-Limitation Act, 1%3-Sections 2 (1) & 21 (1)-Expression suit -Definition of -Section 32 of Limitation Act 1963 bars remedy of filing. suit in respect of matters involving challenge to award-Hence principles of section 21 of Limitation Act can not be applied to applications or appeals under Arbitration Act.
As stated by section 26 of code a proceeding initiated by presentation of plaint alone can be described as a suit. Otherwise the expression suit bas not been defined under Code of Criminal Procedure 1908 or by the Limitation Act, 1963. In so far as the provisions of Arbitration Act are concerned section 32 thereof bars the remedy of filing a suit in respect of the matters involving challenge to the award. Thus it would be doing violence to the definition of the expression suit contained in section 2 (1) of the Limitation Act as well as to the scheme of Arbitration Act, 1940 if it were to be held that the petition seeking to set aside award is liable to be treated as a suit for purpose of section 21 of Limitation Act. Therefore the principle of section 21 of the Limitation Act cannot be applied to applications or appeals by analogy as section 21 of the Act does not incorporate general principles of universal applicability.
LIMITATION ACT, 1963
Sections 2 (1) and 21 (1).
See Civil Procedure Code, 1908, Section 26.
Award Meaning of.
See Arbitration Act, 1940, Section 2 (b).
Suit-Meaning of.
See Civil Procedure Code, 1908, Sections 2 (1) and 21 (1).
D.R. DHANUKA, J:.---On 4th July, 1986, the petitioner No. 1 (who was then the sole petitioner) filed this petition under section 33 of the Arbitration Act. 1940, impugning the original Award dated 3rd May, 1985 made by respondents Nos. 2 and 3 Arbitrators appointed under the Bye-laws of the East India Cotton Association Limited as well as the Appellate Award dated 7th February, 1986 made by the Board of Directors of the said Association in the appeal as permissible under the Bye-laws of the said Association. The impunged Awards were in terms made against petitioner No. 2 alone and not against the petitioner No. 1. However, the petitioner No. 1 filed this petition impugning the above-referred Awards its capacity as alleged successor in business of the petitioner No. 2. Even the notice of filing of the Appellate Award was served by this Court on the petitioner No. 2. By several affidavits filed on behalf of the respondent No. 1 in whose favour the impugned Awards were made as aforesaid, it was inter alia contended that the petitioner No. 1 had no locus standi to file this petition and petitioner No. 2 alone could file petition to set aside the Award. On 7th April, 1987, the petitioner No. 1 made an application to this Court duly supported by joint affidavit of authorised representatives of both the petitioners seeking leave of the Court to amend the petition by impleding the petitioner No. 3 as a co-petitioner and by making of certain consequential amendment. The said application was opposed on behalf of the respondent No. 1 inter alia on the ground that the respondent No. 1 could not be deprived of the right which had accrued to the respondent No. 1by reason of lapse of time resulting from non-filing of the petition by the petitioner no.2 within the period of limitation. By an order date 29th January, 1988, the said application was rejected by Pendse, J. By an order dated 23rd February, 1989 passed in Appeal No. 1609 of 1988, a Division Bench of our Court consisting of Desai and Kantharia, JJ., dismissed the appeal preferred by the petitioner No. 1. Being aggrieved by the order of the division Bench of this Court dated 23rd February, 1989 referred to hereinabove, the petitioner No. 1 preferred a Special Leave Petition to the Hon'ble Supreme Court of India. Arising out of Special Leave Petitions Nos. 3531-32 and 3543 of 1989, Civil Appeals Nos. 2147-2199 of 1989 were decided by the Hon'ble Supreme Court by its order dated 30th March, 1989. In the said order, the Hon'ble Supreme Court noted the contention that the petitioner No. 1 had filed the petition seeking to set aside the Award claiming to be the successor of the "Marketing Federation", In the above-referred order, the Hon'ble Supreme Court observed that it was not necessary for into to go into the question as to whether the petitioner No. 1 herein was the successor to the business of the Marketing Federation or not and whether the petitioner No. 1 was entitiled to challenge the impugned Awards or not. By the said order, the Hon'ble Supreme Court observed that this Court had considered the application for amendment too technically. By the aboverefferred Order, the Hon'ble Supreme Court set aside the order, passed by that learned Single Judge as well as the Division Bench and allowed the application of the petitioner No. 1 seeking amendment of the petition by impeding the petitioner No. 2 as a co-petitioner. The Hon'ble Supreme Court directed that the matters be seen back to this Court for disposal in accordance with law. On or about 11th April, 1989, the amendment was carried out and the petitioner No. 2 was impleded as co-petitioner in this petition.
2. At the hearing of the petition, the respondent No. 1-Company raised a preliminary objection to the effect that the petitioner No 1 Cotton Growers' Marketing Federation had no locus standi to amend the petition. The respondent No. 1-Company contended that the petitioner No. 2-Co-operative Marketing Federation must b
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