A party cannot challenge jurisdiction after previously admitting the existence of an arbitration agreement and participating in arbitration proceedings.

ORDER :

Sanjeev Sachdeva, J.

1. Petitioner impugns order dated 24.10.2024 whereby an application filed by the Petitioner under Order 6 Rule 17 of CIVIL PROCEDURE CODE seeking to amend the objections filed under Section 34 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') has been dismissed.

2. Learned Commercial Court has dismissed the application filed for amendment on the ground that though a question relating to inherent lack of jurisdiction could be raised at any stage of litigation, however, Petitioner intended to raise the question relating to the jurisdiction of the Arbitral Tribunal belatedly and said question being a mixed question of fact and law could not be permitted to be raised by way of an amendment to the application under Section 34 of the Act.

3. Learned Senior Counsel appearing for the Petitioner submits that the Arbitral Tribunal had inherently lacked jurisdiction to entertain the claim for the reason that there was no arbitration agreement between the parties. It is contended that though an arbitration clause was incorporated in the original contract dated 01.01.2013 executed between the parties, subsequently, by an addendum dated 25.01.2016, said clause was deleted from the agreement.

4. Reliance is placed on the judgment of the Supreme Court in Hindustan Zinc Limited (H.Z.L.) vs Ajmer Vidyut Vitran Nigam Limited, (2019) 17 SCC 82 to contend that if there is an inherent lack of jurisdiction, said plea can be taken up at any stage and also in collateral proceedings. Learned Senior Counsel further contends that the Supreme Court in Hindustan Zinc Limited (supra) negated the contention that having consented to arbitration, parties could not turn around and challenge the very appointment of the Arbitrator as being invalid and without jurisdiction.

5. Reliance is also placed on the judgment of the Supreme Court in State of Chhatisgarh vs. M/S Sal Udyog Private Ltd. , (2022) 2 SCC 275 to contend that even in an appeal preferred under Section 37 of the Act, permission could be granted to amend the memo of appeal to raise additional/ new grounds and the period of limitation prescribed for filing an application under Section 34 of the Act would not bar an amendment.

6. Further reliance is placed on the judgment of the Supreme Court in Sushil Kumar Mehta vs. Gobind Ram Bohra , (1990) 1 SCC 193 to contend that defect of jurisdiction cannot be cured by consent or waiver and there can be no waiver, in case there is inherent lack of jurisdiction.

7. Reference may be had to the factual matrix of the subject case. Contract between the parties was executed on 01.01.2013, the agreement contained an alternative dispute resolution mechanism providing for a two tier mechanism; clause 16.3.1 providing for Mediation and clause 16.3.2 providing for Arbitration. Certain disputes arose between the parties with regard to payment and execution of the Contract Work. As per the Petitioner, an addendum dated 25.01.2016 was executed between the parties modifying the dispute resolution clause.

8. As per learned senior counsel for the Petitioner, since parties agreed to mediation, they decided to amend the clause and restrict the dispute resolution to only mediation and that is why the addendum dated 25.01.2016 was executed.

9. We note that after the so called addendum dated 25.01.2016 was executed and mediators appointed, report was submitted by mediator