Point of Law: Amendment of Arbitration petition - It cannot be said that the additional grounds are new grounds despite a pleading to such effect in paragraph 6 of the instant application. The relevant test is whether the petitioner would be constrained to file a new application under Section 34 for challenging the Award under the additional grounds.

JUDGMENT :

MOUSHUMI BHATTACHARYA, J.

1. This is an application for amending the grounds of challenge in an application under Section 34 of The Arbitration and Conciliation Act, 1996 (the Act). The impugned Award dated 30th July, 2018 was passed by a learned Sole Arbitrator allowing some of the claims filed by the claimant (respondent before this court) in relation to termination of a dealership executed between the respondent herein and the petitioner Indian Oil Corporation Limited.

2. According to the petitioner, the application for amendment should be allowed since the proposed grounds contained in the Schedule to the application, were urged by the petitioner before the Arbitrator.

3. Mr. Jishnu Saha, learned senior counsel appearing for the petitioner-Indian Oil Corporation Limited, submits that the new grounds pertain to the Marketing Discipline Guidelines for certain types of dealerships of Indian Oil Corporation Limited, which provides for the remedies available to a dealer in the event of termination of the dealership. Counsel submits that the grounds pertaining to the Guidelines were missed out through inadvertence in the application challenging the impugned Award. Counsel submits that the issues framed by the Arbitrator in the impugned Award would show that the petitioner had urged the new grounds in the arbitration proceedings. Counsel relies on Fiza Developers and Inter-Trade Pvt. Ltd. vs. AMCI (INDIA) Pvt. Ltd. and Another, (2009) 17 SCC 796 on the proposition that an award may be set aside by a court on its own initiative if the subject-matter of the dispute is not arbitrable or the Award is in conflict with the public policy of India. Counsel relies on State of Maharashtra vs. Hindustan Construction Company Limited, (2010) 4 SCC 518 on the point that court can grant leave to amend an application under Section 34 if the circumstances of the case so warrant. Venture Global Engineering vs. Satyam Computer Services Limited and Another, (2010) 8 SCC 660 has been shown to urge that facts disclosed after passing of the Award may be brought on record as grounds if such facts have a positive link with the facts constituting the Award. Emkay Global Financial Services Limited vs. Girdhar Sondhi, (2018) 9 SCC 49 has been relied upon on the point that if there are matters which are relevant for determination of issues arising under Section 34 and which were not before the Arbitrator, such matters can be brought to the notice of the court.

4. Mr. Debajyoti Datta, learned counsel appearing for the respondent opposes the application for adding new grounds for setting aside the Award primarily on the factual score. Counsel submits that in seeking to introduce new grounds, namely on the lack of jurisdiction, the nature and character of the setting aside application is being changed which is not permissible in law. It is also submitted that the amendments are being carried out beyond the period of 120 days within which an application has to be made for setting aside an Award. Counsel submits that grounds which are sought to be added now do not have a foundational basis in the original application. Counsel submits that if Section 34 (2) (b) is read with the amended Section 34 (2A) of the Act, there will be no need to add the proposed grounds. Counsel relies on Pushpa P. Mulchandani and Others vs. Admiral Radhakrishin Tahilani (Retd.) and Others, (2000) 4 Mh. L.J. 819 and Esteem Mercantile Pvt. Ltd. vs. M/s K.H. Parekh and Another, (2002) 2 Mh. L.J. 216 in support of the proposition that amendments cannot be allowed to be carried out beyond the period specified in Section 34(3) of the Act.

5. I have heard learned counsel for the parties and seen the documents relevant for deciding the question whether the petitioner should be allowed to amend the arbitration petition by addition of the grounds set forth in the Schedule to the present application.

6. The grounds contained in the Schedule relate to the Marketing Discipline Guidelines for spec