The discretion to condone the delay under section 5 of the Limitation Act does not prevail over the prescribed period of limitation under section 34 of the Arbitration and Conciliation Act, 1996.

Headnote:
Amendment - Arbitration Petition - Arbitration and Conciliation Act, 1996 - Section 34
Fact of the Case:

The petitioners sought to amend the original Arbitration Petitions to add certain grounds, contending that it was omitted due to a stenographer error and that failure to add the grounds would cause serious prejudice. The respondents raised a preliminary objection that such an amendment would be beyond the period of limitation as prescribed under section 34 of the Arbitration Act, 1996.
Finding of the Court:

The Court dismissed the Chamber Summonses, stating that the discretion to condone the delay under section 5 of the Limitation Act does not prevail over the proviso to sub-section (3) of section 34 of the Arbitration and Conciliation Act, 1996. The Court also held that adding grounds beyond the prescribed period of limitation is not permissible.
Issues: The main issue was whether the amendment to add grounds to the arbitration petitions was permissible beyond the period of limitation as prescribed under section 34 of the Arbitration Act, 1996.
Ratio Decidendi: The Court held that the discretion to condone the delay under section 5 of the Limitation Act does not prevail over the proviso to sub-section (3) of section 34 of the Arbitration and Conciliation Act, 1996. The Court also emphasized that adding grounds beyond the prescribed period of limitation is not permissible.
Final Decision: Both the Chamber Summonses were dismissed.

JUDGMENT - S. RADHAKRISHNAN, J.:---By these Chamber Summonses the petitioners are seeking to amend the original Arbitration Petition Nos. 364/2000 and 363/2000 so as to add certain grounds viz. to add the grounds enumerated in Exh. A to the Chamber Summons No. 284/2001 so far as Arbitration Petition No. 364/2000 is concerned, and to add the grounds mentioned in the Schedule annexed to the Chamber Summons No. 285/2001 so far as the Arbitration Petition No. 364/2000 is concerned.

2. Mr. Narulla, the learned Counsel for the petitioners has submitted that though at the time when the petitions were dictated, the grounds were not dictated and on the next date, the grounds were dictated to another stenographer, but the same were omitted to be included in the petitions which were filed on 6th October, 2000. Mr. Narulla contended that in the interest of justice these grounds should be allowed to be added by way of an amendment to the petitions. Otherwise, serious prejudice would be caused to the petitioners.

3. Mr. Mukri, the learned Counsel for the respondents has raised the preliminary objection that such an amendment can never be allowed i.e. adding of new grounds to the arbitration petitions would be beyond the period of limitation as prescribed under section 34 of the Arbitration Act, 1996. Mr. Mukri referred to and relied upon the Division Bench Judgment of this Court in Appeal No. 683/2000 in Chamber Summons No. 871/2000 in Arbitration Petition No. 121/2000 and Appeal No. 618/2000 in Arbitration Petition No. 121/2000 (Vastu Finvest Holdings Pvt. Ltd. v. Gujrat Lease Financing Limited)1, dated 9th November, 2000. In the aforesaid judgment, the Division Bench dealt with the learned Single Judge's order whereby the learned Single Judge had declined to entertain the Chamber Summons to add certain grounds, inasmuch as the said Chamber Summons was taken out after the period as prescribed under section 34(3) of the Arbitration and Conciliation Act. The Division Bench had fully concurred with the view of the learned Single Judge dismissing the Chamber Summons on the ground that the same was beyond the period of limitation as prescribed under section 34(3) of the Act. The Division Bench has observed in paragraph 13 of the said judgment as under :-

"In our view the Chamber Summons was rightly dismissed. If the point of jurisdiction was an independent ground of attack on the Award, then not having been raised within the period prescribed by sub-section (3) of section 34, it could not have been entertained by the Court at all. If it was already contained in the arbitration petition, then Chamber Summons was wholly redundant. Either way, the Chamber Summons was liable to fail."

4. Mr. Mukri referred to and relied upon another judgment of a learned Single Judge of this Court in the case of (Pushpa Mulchandani and others v. Admiral Radhakrishin Tahilani)2, 2001(1) Bom.C.R. (O.O.C.J.)592. In para 29 of the said judgment, a similar view is taken. Para 29 reads as under :-

“Mr. Chagla further contended that an application for setting aside the Award under section 34 of the 1996 Act has to be made within the limitation prescribed by the Act. This necessarily means that all grounds on which the Award is sought to be set aside have to be taken in the petition itself. It is, therefore, not permissible for the Court to permit an amendment of the petition, that too after the period of limitation prescribed in the section has expired. That would tantamount to entertaining a fresh petition beyond the period of limitation. A.I.R. 1967 S.C. 1233, (Madan Lal (dead) by his legal representative v. Sunder Lal and another)3, is pressed into service in support of the proposition that an objection to the award which has been filed after the period of limitation cannot be treated as an application to set aside the award if it is filed beyond limitation. The contention is justified and needs to be upheld.”

5. Mr. Narulla firstly contended that section 5 of the Limitati

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2001 Supreme(Bom) 512

The discretion to condone the delay under section 5 of the Limitation Act does not prevail over the prescribed period of limitation under section 34 of the Arbitration and Conciliation Act, 1996.

Cases Referred (1)