2017 Supreme(Guj) 675
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R. Subhash Reddy and V.M. Pancholi, JJ.
Reliance Defence and Engineering Ltd. – Appellant
Vs.
Diakofto Shipping S.A. and Ors. – Respondents
Letters Patent Appeal No. 23 of 2017 in Special Civil Application No. 15649 of 2015, Civil Application No. 730 of 2017 in Letters Patent Appeal No. 23 of 2017, Letters Patent Appeal No. 24 of 2017 in Special Civil Application No. 15650 of 2015 to Letters Patent Appeal No. 26 of 2017 in Special Civil Application No. 15647 of 2015 and Civil Application No. 731 of 2017 in Letters Patent Appeal No. 24 of 2017 to Civil Application No. 733 of 2017 in Letters Patent Appeal No. 26 of 2017
Decided On : 29-03-2017
Subject
Civil Law - Amendment of Pleadings
Act Referred
CIVIL PROCEDURE CODE : O.6 R.17, O.7 R.10
CONSTITUTION OF INDIA : Art.226, Art.227, Art.32
Headnote
Constitution of India, 1950 – Articles 226 and 227 – Amendment in Drafts – Letter Patent Appeal – Arbitration & Conciliation Act, 1996 – Section 34 – Letters Patent Appeals under Clause-15 of Letters Patent are filed by original respondent in a group of Special Civil Applications, aggrieved by common C.A.V. passed by single Judge – Single Judge allowed draft amendments in each of the petitions and aggrieved by such order, these appeals are filed – Held, Court is of view that single Judge has committed an error by placing reliance on such finding while considering prayer for amendment of pleading – Court is of view that the prayer which is sought to be introduced by way of amendment is not necessary – Court is of view that Letters Patent Appeal deserves to be allowed and accordingly, it is allowed by setting aside order passed by single Judge in Special Civil Application – Letter Patent Appeal Allowed (Paras 21, 22, 23)
For the Appellant :Tejas Karia, Nirag Pathak, Grishma Ahuja, Advocates for Shardol Amarchand Mangaldas & Co., Advocate
For the Respondent:Hardik P. Modh, Advocate
R. Subhash Reddy, J.
1. All these Letters Patent Appeals under Clause-15 of the Letters Patent are filed by the original respondent in a group of Special Civil Applications, aggrieved by the common C.A.V. order dated 26th August, 2016, passed by learned single Judge, and therefore, they are heard together and disposed of by this common judgment.
2. For the purpose of disposal, we refer to the facts and parties arrayed in Special Civil Application No. 15647 of 2015 in which Letters Patent Appeal No. 26 of 2017 is filed.
3. By the aforesaid common order, the learned single Judge allowed draft amendments in each of the petitions and aggrieved by such order, these appeals are filed. As such, we confine to state the facts which are necessary for disposal of these appeals.
4. The facts, in brief, giving rise to filing of these appeals, are that, the appellant herein, entered into ship building contract with the respondent No. 1 herein on 6th December, 2006. By the aforesaid contract, the appellant agreed to design, build, launch, equip, outfit, test and complete one 74,600 D.W. T Panamax Bulk Carrier (Hull No. P011) and the respondent No. 1 has agreed to purchase and accept the delivery thereof. The appellant, under the contract, has furnished refund bank guarantee against the payment made in terms of advances on signing the contract. The respondent No. 1-company, on the ground that there was delay in delivering the ship and thus, terms of the contract were violated, cancelled and terminated the contract on 10th December, 2011. In view of the termination of the contract, the appellant herein was left with no option but to invoke arbitration as per the contract. Accordingly, arbitration proceedings were commenced between the present appellant and respondent No. 1-company herein at Singapore as per the Singapore International Arbitration Centre Rules, being SIAC Arbitration No. 175 of 2011. In the arbitration proceedings, the 1st partial award was passed on 20th December, 2012, 2nd partial award was passed on 24th September 2013 and final award was passed on 5th May, 2014.
4.1. The appellant herein challenged the arbitral award dated 24th September, 2013, passed in arbitration proceedings, by way of application under Section 34 of the Arbitration & Conciliation Act, 1996 ("the Act" for short) before the 2nd Additional District Judge, Amreli at Rajula. Along with the application under Section 34 of the Act, the appellant also filed an application vide exh. 6, seeking stay of operation, implementation, execution and/or enforcement of the arbitral award till the final disposal of the application under Section 34 of the Act. The learned 2nd Additional District Judge, Amreli, vide order dated 25th October, 2013, returned the application which was filed under Section 34 of the Act, under Order VII of Rule 10 of the Code of Civil Procedure, 1908. The said order was challenged by the present appellant before this Court by way of Appeal From Order No. 462 of 2013 and the learned single Judge of this Court, while issuing notice in the said Appeal From Order, granted status quo with regard to execution of the arbitral award till final disposal of the appeal.
4.2. It is the case of the appellant that in spite of the fact that respondent No. 1 was aware of the proceedings initiated before the Indian court, respondent No. 1 purposefully and in complete disrespect and disregard to the Indian courts, has not appeared in the said proceedings and ultimately, vide judgment dated 8th May, 2014, the Appeal From Order filed by the appellant came to be allowed by the learned single Judge of this Court by setting aside the order dated 25th October, 2013 passed by the learned Additional District Judge, Amreli at Rajula. By the said order, it is held by the learned single Judge of this Court that the learned Additional District Judge, Amreli at Rajula has jurisdiction to hear and adjudicate the application filed under Section 34 of the Arbitration & Concil