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IN THE HIGH COURT OF BOMBAY
B.N. Srikrishna, J.
Pushpa P. Mulchandani (Mrs.) others.... Petitioners.
Versus
Admiral Radhakrishin Tahilani (RETD.) others.... Respondents.
Review Petition No. 15 of 1999 in Arbitration Petition No. 432 of 1998, decided on 15-9-2000.
Advocates appeared :
K.R. Bulchandani i/by Kamal Co., for petitioners.
Iqbal Chagla with S.J. Thakkar i/by Eastly Lam Co., for respondent Nos. 2, 3, 4, 21 22.
D.J. Khambhata i/by Mulla Mulla, for respondent No. 1.
Sections 1 and 85-Act is self contained Code-Original Sides Rules 772 to 789 of the High Court made under Arbitration Act, 1940 not applicable.-Provisions in Section 9 of the Arbitration and Conciliation Act indicate an intention on the part of the Legislature to make the Arbitration and Conciliation Act, 1996 a self-contained self-operative Code with regard to the subject-matter of arbitration and conciliation. The Arbitration and Conciliation Act, 1996 is enacted to make the law a self-contained Code and the provisions of the Civil Procedure Code are not applicable, unless specifically made applicable. The necessary corollary of this conclusion would be that the rules made under the Arbitration Act, 1940 (i.e. Rules 772 to 789) of the High Court Original Sides Rules would not have application to arbitrations under the 1996 Act. It is precisely for this reason that fresh Rules 803-A to 803-F have been made by amendment in the High Court Original Side Rules.
Section 34-Amendment to application filed under Section 34 of the Act for setting aside award after expiry of limitation as prescribed under Section 34 (2) seeking additional grounds not permissible.-An application for setting aside the award under Section 34 of the Arbitration and Conciliation Act, 1996 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. AIR 1967 SC 1233, Ref.
Sections 34, 43 and Limitation Act, Sections 21 and 29 (2)-Provisions of Section 21 not applicable to proceedings under the Arbitration and Conciliation Act, 1996-Sections
4 to 24 also not applicable in view of implied exclusion.-Section 21 of the Limitation Act, 1963 applies to suits. In the Limitation Act, 1963, "suit" has been specifically defined in Section 2 (1) as not including an appeal or an application. Section 2 (b) of the limitation Act of 1963 defines the expression "application" as including a petition. Thus, on a conjoint reading of the Limitation act, the 1996 Act and the rules made thereunder, the provisions of Section 21 would not apply to proceedings under the 1996 Act which are commenced by petitions which are excluded from the definition of suit as defined under Section 2 (1). The Limitation Act, 1963 does not in terms prescribed any limitation for an application to set aside an award. This is obviously so for Section 34 itself has prescribed the limitation in sub-section (3), the limitation being a period of three months from the date on which the party making that application had received the arbitral award, or if a request has been made under Section 33, from the date on which such a request has been disposed of by the arbitral tribunal. The proviso to sub-section (3) enables the Court to entertain such an application if satisfied that the applicant was prevented by sufficient cause from making the application, but provides that such an application can be entertained only within a further period of 30 days, but not thereafter.
The intention of the Legislature is obvious. The intention is to expedite arbitration proceedings. The Legislature has, therefore, provided in clear terms that after a period of three months and 30 days, the Court has no power to condone the delay in the presentation of the application. This is a clear indication of the intention of the Legislature to exclude the provisions of Sections 4 to 24 of the Limitation Act, 1963. Notwithstanding that the Arbitration and Conciliation Act, 1996 contains no specific words of exclusion, an examination of the scheme of the Act would suggest that the intention is to exclude the application of the provisions of Sections 4 to 24 of the Limitation Act. This is clearly evidenced by the words "but not thereafter" used at the end of the proviso to sub-section (3) of Section 34. AIR 1974 SC 480, AIR 1976 SC 1261, Ref.
2. By the judgment and order dated April 23, 1999, I took the view that the application made for impleading one Haresh Melwani was liable to be rejected and also held that section 21(1) of the Limitation Act, 1963 could not enlarge the power of the Court with regard to condonation of delay which was considerably whittled down under the Arbitration and Conciliation Act, 1966 ("1996 Act").
3. Mr. Bulchandani, learned Counsel for the review petitioners, contends that section 141 of the Civil Procedure Code ("C.P.C.") enjoins that the procedure provided in the Code with regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction. The only proceedings excepted by the explanation are proceedings under Article 226 of the Constitution. He contends that, in the absence of a specific exception as to the application of the provisions of the Civil Procedure Code, Order 1, Rule 10 of the Code would squarely apply to the proceedings before the Court under the 1996 Act and, consequently, the Court was fully empowered under sub-rule (2) of Rule 10 of Order 1 to implead any party whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit.
4. Mr. Bulchandani relied upon section 43 of the 1996 Act to contend that the Limitation Act, 1963 applies to arbitration as it applies to proceedings in the Court. It is, therefore, contended that Article 137 of the Third Schedule of the Limitation Act, 1963 would govern the limitation with regard to applications for which no period of limitation is provided elsewhere in the third division to the Schedule to the Limitation Act, 1963. It is urged that as with regard to the application made for impleading Haresh Melwani as a party to the arbitration petition no specific period of limitation has been prescribed under the third division of the Schedule to the Limitation Act, 1963, the period of limitation would be the one provided by the residuary article (Article 137), which is a period of three years. It is urged that the chamber summons taken out was very much within three years and, therefore, no objection could have been taken by the respondents thereto. Reliance is also placed on section 21 of the Limitation Act, 1963 to contend that the effect contemplated by sub-section (1) thereto would apply, that the omission to make Haresh Melwani a party to the arbitration petition was a mistake made in good faith and that the Court should permit addition of the said Haresh Melwani as a party respondent to the arbitration petition. Once that is done, by virtue of the proviso to sub-section (1) of section 21, the petition shall be deemed to have been instituted, even as far as Haresh Melwani is concerned, on the date on which the petition was presented to the Court.
5. Reliance was placed by Mr. Bulchandani on section 85(2)(b) of the 1996 Act to urge that even though the Arbitration Act, 1940 ("1940 Act") stood repealed by the 1996 Act, all rules made under the said enactment shall, to the extent they are not repugnant to the provisions of 1996 Act, be deemed to have been made and issued under the 1996 Act. Mr. Bulchandani also placed reliance on Rules 776 to 789 framed by this Court in Chapter XLI of the Rules of the High Court of Judicature at Bombay on the Original Side (hereinafter referred to as "O.S. Rules"). He particularly emphasised Rule 789 of the O.S. Rules which provides that, in cases not provided for in the rules the provisions of the C.P.C. the rules of the Court in suits and matters on the Original Side of the Court shal
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