Important Point—The order refusing to allow additional grounds to be raised can not be said to be appealable.

ANOOP V. MOHTA, J.

1. Heard finally, by consent of the parties.

2. The Appellant has filed the present Appeal under Section 37 of the Arbitration and Conciliation (Amendment) Act, 2015, (for short, “The Arbitration (Amendment) Act”) whereby, the challenge is raised to order dated 6th October 2016, passed by the learned Single Judge, whereby the Chamber Summons for amendments to the Arbitration Petition filed under section 34 of the Arbitration Act, was rejected. The main Petition is pending for final adjudication.

3. A preliminary objection raised by the learned Counsel appearing for the Respondent referring to Section 37 of Arbitration (Amendment) Act and submitted that under the scheme, except the grounds/reasons so mentioned, no such Appeal is maintainable.

4. The learned Counsel appearing for the Appellant relied upon the Supreme Court Judgment in case of State of Maharashtra vs. Hindustan Construction Company Limited, (2010) 4 SCC 518, whereby while dealing with the aspect of amendment to add the additional grounds within prescribed period, in application under section 34 and/or memo of Appeal under section 37, the Supreme Court has observed as under:

“Whether incorporation of additional grounds by way of amendment in the application under Section 34 tantamounts to filing a fresh application in all situations and circumstances. If that were to be treated so, it would follow that no amendment in the application for setting aside the award howsoever material or relevant it may be for consideration by the court can be added nor existing ground amended after the prescribed period of limitation has expired although the application for setting aside the arbitral award has been made in time. This is not and could not have been the intention of the legislature while enacting Section 34.”

Therefore, submission is made that though Section 37 is silent with this regard, in view of above observations of the Supreme Court about this Section itself, the appeal is maintainable and as the amendment ought to have been allowed to add the grounds.

5. The Arbitration Act and its effect on Arbitration proceedings, is settled. It is required to be considered in the background of the clear provisions of the Arbitration Act. Section 37 clause (c) of the Arbitration Act as relevant, is reproduced as under:

“Section 37 clause (c) Setting aside or refusing to set aside an arbitral award under Section 34.”

The Appeal in High Court is available only if the order falls within the ambit of clauses of Section 37, and not otherwise.

6. As reference is made to the above, which no where take into consideration a situation like this and so also the judgment. The Arbitration Petition under Section 34 to set aside an Arbitral Award is still pending. Merely because one or two grounds not permitted to be added, by rejecting the application that itself in no way can be stated to be the refusal to set aside the Arbitral Award.

7. The positive law, so far as contention under Section 37 is concerned, is very clear that it is maintainable against setting aside and/or refusing to set aside an Arbitral Award. In the present case, the rejection of the amendment application, in no way, can be stated to be concluding Section 34 petition finally.

8. The learned Judge, after considering the rival submissions, at the final stage of the arbitration petition, may set aside and/or refuse to set aside the Award. The Appeal against such orders under Section 37 is maintainable. However, rejection of such amendment application and/or refusing to permit to raise additional grounds, that itself can not be stated to be order, as contemplated under Section 37(c), against which Appeal, is maintainable. Against the rejection of amendment application, in view of plain reading of Section 37, the appeal itself is not maintainable. However, this in no way read and refer to mean that the Appellant has no remedy whatsoever to challenge and/or agitate the grounds, so raised in the Appeal.

9. In v