NTPC Ltd v. Larsen and Toubro Limited & Anr.

15. She has also referred to the judgment in Cinevistaas v. Prasar Bharti, 2019 SCC OnLine Del 7071, wherein this Court while referring to Farmers Fertilizer Co-operative Limited (supra) and also the judgment in Shah Babulal Khimji v. Jayaben D Kania, (1981) 4 SCC 8, set aside the order of an Arbitral Tribunal rejecting an application seeking amendment on the ground of delay, holding as under:- "The rejection of the additional claims has in fact resulted in greater delay rather than expeditious disposal. The bona fides of the Petitioner are not in question. Rejection of additional claims by the impugned order have all the trappings of an award and hence the Section 34 petition is clearly maintainable. On the basis of the tests laid down in Shah Babulal Khimji (supra), the rejection of the application to add or expand the amounts claimed under certain heads results in a conclusive determination that the said claims cannot be adjudicated. Thus, there is not just formal adjudication but in fact a final rejection of the said claims. This constitutes a dismissal of the claims and hence would constitute an award within the meaning of Section 2 (1)(c) of the Act."

16. Reliance is also placed on Lt. Col. H.S. Bedi (Retd) and Anr. v. STCI Finance Limited, OMP(COMM.) 546/2020 wherein the following was observed:- “In the judgment in the case of Cinevistaas Ltd. (supra) on which reliance was placed by Mr. Vachher, in paragraph 35, which I have already reproduced above, the Coordinate Bench has held that as long as the disputes fall broadly within the reference, correction and amendment ought to be permitted as the principles as laid down by the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8, would have a greater application in arbitral proceedings as the said judgment lays down principles that the substantive rights affected ought to be seen, while determining what kind of orders are challengable.”

17. Ms. Acharya has submitted that the rejection of the application of the petitioner solely on the ground of delay under Section 23(3) of the Act of 1996, ignoring the specifically agreed clauses 63.1, 63.[2] and 63.[3] of the Contract Agreement, is patently illegal and unsustainable. Cause of action which arose with the termination of the contract is still continuing and would expire 3 years after the completion of the work. There is no delay in seeking updation/ revision of the counter-claims in view of the fact that the counter-claims are within the period of limitation. The work awarded under the contract to the JV on November 28, 2006 is still being carried out though another agency i.e. HCC, which got the contract at the risk and cost of the JV. In view of continuance of the work and non- completion thereof, the cause of action for the counter claim No.1 and other counter-claims against the JV is still continuing, which otherwise arose when the contract with the JV was terminated on January 09, 2014. Though the revision/ updation is within time as no timeline is fixed for the same, on a conjoint reading of clauses 63.1,63.[2] and 63.[3] of the Contract Agreement, it is amply clear that both the parties are ad idem that the cause of action, would expire only three years after the completion of the defect liability period. In other words, the petitioner gets the right to make a claim against the JV even after the expiration of the defect liability period and till the expiry of three years thereafter. In terms of clauses 63.[1] and 63.[3] of the Contract Agreement, the JV is not discharged from its obligations and liabilities with the award of the contract to HCC. It is her contention that HCC has stepped into the shoes of the JV and therefore, the JV is liable to fulfill all its obligations and liabilities until expiry of the defect liability period in terms of the provisions of the contract signed between the JV and the petitioner. She has referred to the judgment in Indian Oil Corporation Ltd. v. SPS Engineering Ltd., (2011) 3 SCC 507 (Indian Oil Corporation-I hereinafter), wherein the Supreme Court in a petition filed under Section 11 of the Act of 1996 dealt with the similar clauses and after exhaustive deliberation has held that the cause of action for a claim would start after the work is completed if the work is awarded to a new contractor at the risk and cost of the earlier one. Further reliance is placed on the decision of this Court in a petition under Section 34 of the Act of 1996 titled Indian Oil Corporation Ltd v. SPS Engineering Ltd., 2018 LAWPACK (Del) 63759 (Indian Oil Corporation-II hereinafter).

18. She has also relied upon the judgment of the Supreme Court in A.K. Gupta and Sons v. Damodar Valley Corporation, (1996) 1 SCR 796 to contend that where the amendment does not constitute an addition to the facts already on record, the amendment would be allowed even after the statutory period of limitation, and the judgment of the High Court of Kerala in K.K. Scaria v. N, Mohandas and Ors., 2015 SCC OnLine Ker 1632 to contend that the discussion to allow amendment is considerably wide under Section 23(3) of the Act of 1996 and is not circumscribed as in the case of a suit by the provisions of the CPC.

19. According to her the impugned decision is patently illegal, as per the principles laid down by the Supreme Court in the cases of Indian Oil Corporation Limited v. Shree Ganesh Petroleum Rajgurunagar, (2022) 4 SCC 463; Associate Builders vs. DDA (2015) 3 SCC 49; and Ssangyong Engineering and Construction Company Ltd. v. National Highway Authority of India (NHAl) (2019) 15 SCC

131.

20. That apart, it is her argument that no prejudice is caused to the respondent No. 1 in case the application is allowed, for the reason that the JV had itself agreed vide clause 63.[1] of the Contract Agreement, that the petitioner shall be authorised to terminate the contract and to complete the work either by itself or through any other contractor at the risk and cost of the JV.

21. She has also relied upon the judgments in Dhannalal v. Kalawati Bai (2002) 6 SCC 16; and Gammon India Ltd. v. National Highways Authority of India, AIR (2020) DEL 132, to argue that the rejection of the application and the liberty granted by the Tribunal to the petitioner to initiate fresh arbitration would lead to multiplicity of litigation, which is contrary to the basic intent of the Act of 1996, which contemplates a fundamental principle that an Arbitral Tribunal shall adjudicate all disputes in one and the same proceeding.

22. Mr. Rajeev Virmani, learned Senior Counsel appearing for the respondent No. 1 would state at the outset that the present petition is ex-facie not maintainable as the impugned order is neither an award nor an interim award in terms of Section 2(1)(c) read with Section 31 (6) of the Act of 1996. There is no final determination of the claims sought to be raised by the petitioner by its application. The impugned order merely disallows the petitioner to amend the counter-claims, leaving it open to the petitioner to raise the same in fresh arbitration, if permissible under law. A petition under Section 34 of the Act of 1996 is maintainable only against an award defined under 2(1)(c) read with Section 31 (6).

23. According to him, an order accepting or dismissing an application seeking amendment of pleadings under Section 23(3) of the Act of 1996 cannot be termed as an interim award, if it has not decided the issue finally so as to allow challenging such order under Section

34. The impugned order lacks the feature of finality. Pertinently, in the impugned order, the Tribunal has expressly noted at paragraph 7.[1] of the impugned order that "nothing in the Order shall be construed as a final determination on merits of the case for any issue touched upon or decided by this Order.”. Further, in paragraph 7.[2] of the order, the Tribunal has left it open for the petitioner to invoke fresh arbitration with regard to the claims made in the application seeking amendment of the counter-claims. Furthermore, the impugned order does not record any finding on any of the issues raised before the Tribunal in the arbitration proceedings between the parties. Therefore, the twin test of issue and finality are not met so as to term the impugned order as an award or an interim award under the Act of 1996. Therefore, it is sufficiently clear that the Tribunal has made no final determination on the controversies before it, and as such the impugned order is not amenable to challenge before this Court under Section 34 of the Act of

1996.

24. That apart, the impugned order records no finding that the claims sought to be brought in by the petitioner by way of amendment in the counter-claims are barred by limitation as has been wrongly suggested in the petition. Rather the Tribunal has expressly refrained from going into the issue of limitation as is evident from paragraph

7.20 of the impugned order, which reads as under:- "The Tribunal therefore rejects the Updation Application filed by the Respondent No.1. The Tribunal does not consider it necessary to dwell upon the other arguments raised by the Claimant, including the issue of limitation and waiver, and dismisses the application on the ground of delay and prejudice alone. "

25. He stated that the petitioner moved the amendment application after a considerable delay of nearly 5.[5] years at a stage when both the parties had already led their evidence and concluded their final arguments. Considering the status of the arbitration proceedings allowing the amendment application would cause grave prejudice to the respondent No.1. It is for this reason that the Tribunal considered it inappropriate to allow the application. In the present facts, if the petitioner is allowed to challenge the impugned order, the same would be tantamount to condonation of the gross delay which has been committed by the petitioner willfully without any just and sufficient cause explaining the delay.

26. In support of his contentions, he has referred to the judgments of this Court in the following cases:

1. Container Corporation of India v. Texmaco, (2009) SCC OnLine Del 1594

2. VIL Rohtak v. NHAI, OMP (COMM) 339/2021

27. Further, it is stated that the Tribunal has dismissed the petitioner's application by exercising its discretion under Section 23(3) of the Act of 1996 while considering the gross delay on part of the petitioner. As such, the discretion exercised by the Tribunal is not amenable to judicial review, much less in a petition under Section 34 of the Act of 1996.

28. Yet another submission of Mr. Virmani is that the application seeking amendment of the counter-claims has been rejected taking into account the delay on the part of the petitioner. The impugned order does not reject the claims sought to be introduced in the counter-claims at all much less on the ground that these would be barred by limitation. He contended that limitation is statutorily recognized as a bar to a suit or a claim by virtue of Section 3 of the Limitation Act, 1963 read with Section 43 (1). On the other hand, delay, in the context of Section 23 (3) of the Act of 1996 precludes the parties from amending its pleadings during the course of arbitral proceedings without affecting the rights and contentions of either party on maintainability of new claims / counter-claims in the subsequent proceedings. Thus, there is a clear distinction between a claim being barred by limitation and its consequent rejection, and an application of amendment being disallowed by the Tribunal considering it inappropriate on the threshold of delay in making it and the prejudice that it would cause. To demonstrate the distinction between delay and limitation, Mr. Virmani has relied upon the Judgment of the Supreme Court in the matter of P Daivasigamani v. S. Sambandan, Civil Appeal NO. 9006/2011.

29. He has relied upon the table provided in paragraph C of his written submissions to contend that the petitioner failed to provide any justification or cause for not filing the application for amendment of its counter-claims for nearly 5½ years after the contract was awarded to HCC Limited. He stated that though the petitioner had put forth a ground in its petition that there is no delay, during the course of hearing, the learned counsel for the petitioner submitted that due to the petitioner company‟s officers being on COVID-19 duty it could not file the said application at an earlier stage. However, there was no COVID-19 in 2016, when HCC was awarded the contract, and COVID-19 did not deter the petitioner from leading its evidence and addressing final arguments.

30. Mr. Virmani has also sought to controvert the submission of Mr. Acharya that the application was not seeking amendment, but was only for updation. If the petitioner‟s application was merely for updation as contended that the same would not be maintainable as there is no provision in the Act of 1996 conferring jurisdiction upon the Tribunal for accepting anything beyond the pleadings for adjudication. As per Section 23 (1) of the Act any claimant or counterclaimant is mandatorily required to state all the facts supporting its claims / counter-claims, the points at issue and the relief sought. Any digression from the original claims / counter-claims under Section 23 (1) of the Act can be entertained by the Tribunal only if it satisfies the criteria for amendment laid down in Section 23 (3) of the Act and not by way of any updation. It is to avoid the applicability of the provision of Section 23 (3) and to avoid providing any explanation for delay and prejudice, that the petitioner has mischievously termed its amendment application as an updation application. The application itself reveals that it was for amendment as would be clear from paragraph 1 therein whereby the petitioner has sought a „revision‟ of the counter-claims and also from the prayer in the application whereby the petitioner has sought adjudication on the revised claims. Mr. Virmani submitted that „revise‟ is defined in Black‟s Law Dictionary inter alia to mean „to go over a thing for the purpose of amending‟. Similarly, „amend‟ is defined to inter alia mean „revise‟. He further stated that the application was nothing but clever drafting to create illusions to avoid the scrutiny under Section 23 (3) of the Act. Such actions of clever drafting creating illusions in the absence of real grounds have been frowned upon by Courts as a means resorted to abuse the process of law. Reference in this regard is made to the judgments of the Supreme Court in the cases of T. Aravindandam v. T. V. Satyapal, (1977) 4 SCC 467 and ITC Ltd. v. Debt Recovery Appellate Tribunal, (1998) 2 SCC 70.

31. In the initial counter-claim the petitioner specifically sought a direction against the respondent No.1 to pay a specific amount of ₹3,150 crore. However in the amendment application the petitioner sought permission to place on record the amount revised / updated for counter-claim numbers 1, 3, 4, 7, 8, 9 and 12. Further it sought adjudication of revised amount of ₹3,531 crore instead of ₹3,150 crore. This could not have been possible without an amendment. That apart, by way of the amendment application, the petitioner has also sought amendment of various annexures to the counter-claims. This becomes evident when annexure A-1 of the original counter-claim is juxtaposed with annexure A-1 of the amendment application. While in the former, the claimed sum is of ₹5,51,60,00,000/- towards estimated value of balance work to be executed at the risk and cost of the JV. However, in the latter, this counter claim has increased to ₹6,51,66,32,774/-. Further in the amendment application, the petitioner has relied on a new annexure being annexure R-26, referable to the HCC Contract, for the first time to arrive at this figure, though no mention of this annexure was made in Annexure A-1 of the original counter-claims. Similarly, the petitioner in the amendment application has introduced for the first time item no. 6 and annexure R-27,even though the same were absent in Annexure A-1 to the original counter-claims. As a result, total amount of ₹3,86,61,81,750/- as per Annexure A-1 of the original counter-claims has increased to ₹4,96,76,31,821 in Annexure A-1 of the amendment application. The Tribunal after perusing the petitioner‟s application arrived at a conclusion that the amendment sought by the petitioner with respect to counter-claim no.1 changes the very nature of the counter-claim. It is for the first time that the basis of the counter-claim no. 1 that is claim for recovery against risk and cost was sought to be changed from that of mere „estimate‟ by specifically linking it to the HCC contract. That apart, he contended that mere averment in the counter-claims that a party would reserve its rights to amend its pleadings would not confer any unfettered right to amend. Any amendment would have to be in accordance with law.

32. That apart, the Tribunal in its order dated November 03, 2016, i.e., almost 8 months after the award of the contract to HCC, has recorded that the pleadings are complete and both the parties have agreed that no further amendment of the pleadings required. The petitioner is estopped from seeking any amendment or asserting any increased counter claim, as the statement of the parties before the Tribunal is an express waiver of any such right.

33. As for the reliance placed by Ms. Acharya on the Judgment in Cinevistaas (supra), he contended that the issue therein was that of amendment and not of any updation. The petitioner cannot approbate and reprobate by stating on one hand that its application is merely seeking updation, not amendment, and on the other hand rely upon judgments that deal with amendment of pleadings.

34. He has also stated that the recourse to amendment under Section 23 (3) of the Act was not available in view of the agreement between the parties not to amend. The Tribunal on November 3, 2016 framed the point for determination wherein both parties agreed that no further amendment of pleadings will be required. This would bar any amendment in view of the opening words of Section 23 (3), i.e., „Unless otherwise agreed by the parties…”. It is for this reason that the petitioner has termed its application as updation application and not amendment application.

35. He also submitted that the statement of the petitioner that the entire HCC contract was on record is false. The Tribunal vide order dated April 21, 2017 directed the petitioner to place on record the contract dated April 21, 2016 executed with HCC. However, as brought out in the amendment application, HCC contract was amended 11 times from September 1, 2017 to June 15, 2020. These amendments were never brought on record in the arbitration proceedings as is clear from Annexure R-26 to the petition.

36. It is his contention that the Tribunal rightly held that the application did not pass the threshold prescribed under Section 23 (3), i.e., with regard to appropriateness, delay and resultant prejudice that will be caused to the opposite party in allowing amendment. That apart, as the HCC contract was sought to be introduced for the first time by way of an amendment application, the application, if allowed, would require arbitration proceedings to start afresh from the state of pleadings and will also require leading additional evidence by the respondent No.1. This would result in making the final hearings which have taken place since January, 2021 redundant, causing grave prejudice to the respondent No.1 by delaying the process of adjudication of its claims. Therefore, allowing the amendment application would defeat the purpose of speedy resolution by arbitration.

37. That apart, he also stated that the submission of the petitioner on multiplicity of proceedings to claim amendment is misconceived, as the present arbitration is the third arbitral reference in respect of the same contract which are separated by difference stages and timelines in the performance of the contract. The first claim / reference pertains to the period starting from November, 2006 to October 31, 2009 and is at the stage of enforcement of the arbitral award. The second claim / reference pertain to the period starting from November, 2009 to April 30, 2012 wherein arbitration proceedings have been concluded and the Tribunal therein has reserved its final award. The third claim / reference, that is an arbitration wherefrom the present issue arises, pertains to disputes arising between the parties from May 1, 2012 to December 1, 2014, i.e., the date on which the amendment Statement of Claims was filed before the Tribunal by the respondent No.1. It is the petitioner‟s own case that the proposed amendments were not the only ones, and it would initiate fresh arbitration once the contract given to HCC is completed. This means the petitioner itself has no intention whatsoever of avoiding multiplicity of proceedings.

38. Mr. Virmani has further stated that even assuming arguendo that the impugned order is an award / interim award, no grounds under Section 34 of the Act of 1996 is shown to exist to warrant interference with the same. The decision of the Tribunal cannot be faulted on the limited parameters of Section 34 and the petitioner has failed to show that there is any perversity or patent illegality in the order. He stated that it is well settled that a Court exercising jurisdiction under Section 34 does not sit in appeal over the awards passed by the Tribunal and its jurisdiction is limited to examining the impugned awards on the grounds mentioned thereunder. Further, it is submitted that while considering a petition under Section 34 of the Act of 1996, the Court may pass interim orders as circumscribed by Section 36 (2) and (3) of the Act only. It is beyond the jurisdiction of Section 34 and Section 36 of the Act that while considering a petition under Section 34, in the interim, any interference is made with the arbitral proceedings. The Court at the stage of admission of a petition under Section 34 ought not to interfere or interdict the underlying arbitral proceedings in any manner since the scope of interim order in a petition under Section 34 can only be in the nature of orders as contemplated under Section 36 (2) and (3) of the Act. To buttress his argument, he has relied upon the judgments of the Supreme Court in the following cases:

1. Ssangyong Engineering and Construction Co. Ltd. (supra)

2. Associate Builders (supra)

3. Project Director, National Highways, No. 45E and 220, NHAI v. M. Hakeem and Anr. (2021) 9 SCC 1

39. Further, it is his case that the judgment of the Supreme Court in Indian Oil Corporation Ltd.-I (supra) is distinguishable on the facts of this case. In that case, the first award rejected the claim of the employer, which was premised on risk and cost. Thereafter second reference was declined by the Court under Section 11 on the ground of res judicata. The Supreme Court held that the designate Court wrongly arrived at a conclusion that the claim of the employer therein was barred by res judicata. However, the said order of the Supreme Court was not on merits and therefore cannot be binding precedent as is being sought to be read by the petitioner. In the present case, the counter-claims are not being rejected on merits. In any case, the judgments of both the Supreme Court and this Court in Indian Oil Corporation Limited-I and II (supra) would be applicable only when the petitioner demonstrates that the discharge of the respondent No. 1 was invalid and after cost of completion of the remaining contractual work has crystallised. Therefore, the judgment cannot be interpreted as permitting a belated amendment to be allowed.

40. That apart, he stated that the amendment relating to costs and interest has been disallowed by the Tribunal as it is in any way within the jurisdiction of the Tribunal. The petitioner had prayed for award of costs and pre and pendente lite interest on the amount sought in the counter-claim. However, by way of amendment application its sought to revise its counter-claims under these two categories of the original counter-claim. These prayers in the amendment application to revise the original counter-claims towards costs and interest were specifically disallowed by the Tribunal under its power to award costs and interest under Section 31-A and 31 (7) of the Act of 1996. He has also submitted without admitting the interpretation of Clause 63 of the Contract Agreement, that the amendment having been disallowed on the parameters laid down in Section 23 (3) of the Act of 1996, Section 63 of the contract has absolutely no bearing on the amendment sought by the petitioner.

41. He has sought dismissal of the petition.

FINDINGS

42. Having heard the learned counsel for the parties and perused the record, the first issue that needs to be decided is the maintainability of this petition under Section 34 of the Act of 1996. This is primarily for the reason, as contended by Mr. Virmani, that the impugned order is neither an award nor an interim award in terms of Section 2(1) (c) read with Section 31 (6) of the Act. He has qualified his submission by stating that there is no final determination of the prayers sought to be raised by the petitioner in its application. The impugned order merely disallows the petitioner to amend its counter-claims, leaving it open to the petitioner to raise the same in a fresh arbitration if permissible under law.

43. On the other hand, Ms. Acharya would contest this plea by stating that the Tribunal concluded that the updation sought by way of an application was after much delay of 5 years and the liberty granted to seek fresh arbitration, shall be merely illusory.

44. Before I consider the issue of maintainability of the petition, I intend to deal with the issue whether the application filed by the petitioner is only for updation / revision and not for amendment so as to attract the provisions of Section 23 (3) of the Act of 1996. The Tribunal has concluded that the application is in fact, for amendment of the counter-claims for the reason that the amounts of the counterclaims and even the methodology for calculating such amounts have been changed. The Tribunal has also come to a conclusion that there is no concept of updation of the claims/counter-claims provided in the Act, and as such the changes sought to be made by the petitioner necessarily has to be through amendment of their counter-claims.

45. At this juncture, I may reproduce Section 23 (3) of the Act of 1996 which reads as under: “(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it.”

46. In substance, Section 23 (3) provides that if a party intends to amend or supplement its claims or defence, the Tribunal can consider it inappropriate to allow the same, having regard to the delay in making it. As stated above, the plea of Ms. Acharya is that by the application, the petitioner intended to update/revise the counter-claims. I am not convinced by the submissions made by Ms. Acharya. The petitioner by stating that the application is for updation/revision was primarily seeking the amendment of the counter-claims. The purpose of the petitioner seeking updation/revision is primarily to alter/change the amounts of the counter-claims. In that sense, though the application has been termed as updation application by the petitioner was in effect for amendment.

47. Mr. Virmani has contended that Black‟s Law Dictionary defines “revise” as “to go over a thing for the purpose of amending”. Similarly, “amend” is also defined to inter-alia mean “revise”. In that sense also, updation/revision shall have the effect of amending the counter-claims. In fact, I may note that while contending that updation/revision is different from amendment, Ms. Acharya has relied upon the judgments in Cinevistaas (supra) and Lt.Col. HS Bedi (Retd.) (supra) which primarily relate to the issue of amendment. In other words, she has relied upon judgments where amendments have been allowed in favour of the parties therein, in support of her case that the application is for mere updation/revision. Needless to state, a party cannot be allowed to blow hot and cold. It is reiterated that the Tribunal was right in holding that the application filed by the petitioner was for seeking amendment of the counter-claims. If that be so, the Tribunal was within its right in the given facts to not to allow the application for updation / revision, which in effect was for amendment of the counter-claims, on the ground that the same was made belatedly.

48. Now that it is established that the application filed by the petitioner before the Tribunal was in fact for amendment of its counterclaims, I shall now answer the issue of maintainability of this petition filed under Section 34 Act of 1996. I am unable to agree with the submission made by Ms. Acharya for the simple reason that the Tribunal has only refused to allow the updation / amendment of the counter-claims primarily on the ground that updation / amendment has been sought belatedly and in terms of Section 23 (3) of the Act of 1996, which contemplates that the amendment / supplement of claim / defence can be refused on the ground of delay. That apart, the Tribunal has also rejected the application on the ground of prejudice as the proceedings are at the final arguments stage, that too of the petitioner herein. Any updation / amendment of the counter-claims would require fresh evidence to be considered, and shall result in proving the documents to be relied upon by the petitioner, which shall further delay the proceedings. It is necessary to state at this stage that the Tribunal has also held that the documents relating to execution of the contract with HCC would have to be taken on record and the respondent has to be given an opportunity to accept or deny the documents. In this regard, Ms. Acharya has contested the said finding by stating that the contract executed by the petitioner with HCC has already been placed on record. In any case, meaningfully read the conclusion of the Tribunal that as the present arbitration proceedings are at the stage of arguments on behalf of the petitioner any further updation/amendments requiring filing of documents/adducing the evidence shall delay the proceedings.

49. The Tribunal in its order has drawn a distinction between the delay in making an application for amendment / updation as against a claim itself being barred by limitation. There is no conclusion of the Tribunal that the claims through amendment / updation shall be barred by limitation. That being the position, suffice it to state there is no final determination by the Tribunal on the merits of the claims sought to be updated/amended which would have the effect of the counterclaims being rejected on merits and which shall bar the petitioner from seeking a fresh reference to arbitration in so far as those counter-claims are concerned. Mr. Virmani contended that if the claims have not attained finality, then the impugned order of the Tribunal cannot be said to be an award or even an interim award within the ambit of the Act of 1996. In this regard, he has relied upon the judgment in Container Corporation of India (supra), rendered by this Court, wherein in paragraph 6 it was held as under:

50. A similar view has been taken by a Coordinate Bench of this Court in MBL Infrastructure Ltd. v. RITES Ltd. & Anr., OMP (COMM) 98/2022, decided on October 14, 2022, wherein this Court was concerned with an order dated January 8, 2022 passed by the Sole Arbitrator in proceedings relating to the disputes between the parties therein, whereby the learned Arbitrator has rejected the application filed by the petitioner therein for an amendment of the Statement of Claims on the ground of delay in seeking amendment. That apart, the Arbitrator held that the final bill which was sought to be incorporated in the claims, can be looked by him even without amendment of the Statement of Claims. This Court was of the view that above conclusion of the learned Arbitrator cannot be construed to be a final conclusion in so far as the enhanced quantum of claims stated to have arisen from the final bill raised is concerned. The relevant observations by this Court in paragraphs 23 to 25 are reproduced as under: “23. In the opinion of this court, the decision of the present case turns essentially on the following observations made by the learned Arbitrator in the impugned order:

(emphasis supplied)

24. What clearly emerges from the foregoing observations of the learned Arbitrator is that firstly, he has unequivocally said that the petitioner‟s entitlement to any amounts arising from the final bill as approved by respondent No. 1 (which would take account of any deductions made by respondent No. 1) “... can be looked into by me, even without the amendment in Statement of Claims”. The learned Arbitrator has also observed that the “... manner of passing of the same, can always be looked into by me, without amendment of Statement of Claims.” It is clear from these observations that the learned Arbitrator has not taken a view nor foreclosed a decision as to the amounts cleared by respondent No. 1 against the final bill raised by the petitioner, which would imply that the impugned order is not dispositive of any claims that the petitioner wishes to raise in relation to the final bill. If any doubt was to remain in this regard, the learned Arbitrator has, in so many words, qualified the dismissal of the amendment application by the following observations, which bear repetition: “15. In view of above, I am disallowing amendment of Statement of Claim dated 29.01.2021 by Claimant with the above qualification pertaining to Final Bill due to above reasons and reason of delay.”

25. Accordingly, in the opinion of this court, the impugned order does not comprise a final determination of any of the petitioner‟s claims, including the enhanced quantum of claims stated to have arisen from the final bill raised upon respondent No. 1. The impugned order is accordingly not an interim award; and is not amenable to challenge under section 34 of the A&C Act.”

51. Similarly, another Coordinate Bench of this Court in the case of Punita Bhardwaj v. Rashmi Juneja in OMP 20/2019 decided on August 31, 2022, was concerned with an order passed by an Arbitrator on November 4, 2019, whereby the Arbitrator decided an application for amendment of the Statement of Claims sought by the petitioner/claimant. The Arbitrator vide order dated November 4, 2019, had stated the following:

11. Turning to the two judgments cited by Mr. Singla, the petitions under Section 34 of the Act were held to be maintainable against dismissal of applications for amendment of the statement of claims (in M/s Cinevistaas14 ) and of the statement of defence (in Lt. Col. H.S. Bedi Retd.15 ).

12. As far as maintainability is concerned, this Court in M/s Cinevistaas16 noticed that the impugned order rejected amendment of certain claims on the ground that they were barred by limitation, and observed as follows:-

13. The Court relied upon the judgment of the Supreme Court in Shah Babulal Khimji vs. Jayaben D. Kania & Anr.18, which distinguished between an adjudication which conclusively determines a claim and has the “characteristics and trappings of finality”, thus giving it the characteristics of a “judgment”, and those interlocutory orders which do not partake of these characteristics. The Court also noticed the judgment in India Farmers Fertilizer Cooperative Limited vs. Bhadra Products19, wherein the Supreme Court had occasion to consider the characteristics of an “interim award” and held that the interim award must conclusively determine some of the issues between the parties”.

52. This Court, considering the above order of the Arbitrator, has in paragraphs 18 to 21 of the judgment held as under:

20. Further, it is evident that the suit was filed before this Court as far back in 2014 and referred to arbitration in the year 2016. The application for amendment was filed by the petitioner only on 21.07.2017. Even thereafter, it is recorded by the learned arbitrator that the matter proceeded without the petitioner seeking an adjudication of the said application until 04.11.2019, when the impugned order was passed. In the meanwhile, proceedings continued before the learned arbitrator, and issues appear to have been framed in these proceedings on 17.05.2018.28 During the pendency of the present petition before this Court also, I am informed that the parties have proceeded to lead evidence before the learned arbitrator and the proceedings are now at the stage of final arguments.

21. In view of the aforesaid position, I am of the view that the impugned order in the present case does not constitute an interim award, susceptible to challenge under Section 34 of the Act. The petition is, therefore, dismissed as not maintainable, leaving it open to the parties to take such remedies as may be available to them in accordance with law.”

53. Ms. Acharya in support of her submission has relied upon the judgment in the case of Cinevistaas (supra). Suffice to state that the said judgment has no applicability to the facts of this case inasmuch as this Court while considering Section 34 petition has inter alia with regard to the question whether the order of the Arbitrator is an interim order which can be appealed against in this Court, held that the decision whether the order is an award or an interim award is to be made based on the nature of the order and not the title of the application. In that case, the Court set aside the Arbitrator‟s rejection of the proposed amendment, by holding that the same were barred by limitation and as such is a final adjudication. In so far as the additional amounts that were sought to be claimed are concerned, as an element of finality has been attached to the award, the Court in those factual circumstances held that the petition under Section 34 of the Act of 1996 is maintainable.

54. The facts in Cinevastaas (supra) and the facts herein as demonstrated above are at variance, inasmuch in the present case, the Tribunal has only rejected the application for amendment on the ground that the same has been made after a long lapse of time. In fact, it has granted liberty to the petitioner herein to invoke a fresh arbitration insofar as the claims sought to be put forth through the application are concerned. Surely, the petitioner shall be at liberty to take all pleas on the maintainability of the claims in such arbitration. In fact, from paragraph 7.20 of the impugned order, it can be seen that the Tribunal has refrained itself from going into the issue of limitation and waiver. In other words, the issue of limitation with regard to the merits of the updation / amendment sought by the petitioner has not been adverted to by the Tribunal at all. If that be so, it cannot be said that such claims of the petitioner have been decided finally, and as such the impugned order does not fulfill the requirements of an award or an interim award under the Act of 1996. So the impugned order not having the nature of an interim award, this Court is of the view that the petition under Section 34 shall not be maintainable.

55. Insofar as the judgments in Farmers Fertilizer Co-operative Limited (supra) and Lt. Col. H.S. Bedi (Retd) and Anr. (supra) as relied upon by Ms. Acharya are concerned, the said judgments are distinguishable in the facts, as in those cases, the impugned orders finally determined the amendments sought by the parties, inter-alia on the ground of limitation, and as such are not applicable for the purpose of determining the present issue.

56. The decision in A.K. Gupta and Sons (supra) has been relied upon by Ms. Acharya to contend that if an amendment does not add on to the facts already on record, such an amendment would be allowed even after the statutory period of limitation. She had also referred to the judgment in K.K. Scaria (supra) wherein the High Court of Kerala had held the power to allow amendment is considerably wide under Section 23(3) of the Act of 1996 and is not circumscribed as in the case of a suit by provisions of CPC. Surely, given the fact that the Tribunal in this case has exercised its jurisdiction and was of the view that allowing any amendment would further delay the proceedings, the said judgments would not come to the aid of the petitioner.

57. As this Court has only considered the maintainability of the petition, the reliance placed by Ms. Acharya on the judgments in Dhannalal (supra) and Gammon India (supra) to contend that to avoid multiplicity of litigation, the amendment would have been allowed, has become inconsequential. She has also relied upon the judgments in the cases of Shree Ganesh Petroleum Rajgurunagar (supra), Associate Builders (supra) and Ssangyong Engineering and Construction Company Ltd. (supra) which relate to the scope of interference of Courts with an arbitral award in a petition under Section 34 of the Act of 1996. Similarly, the judgments of the Supreme Court and this Court in Indian Oil Corporation Ltd.-I and II (supra), has also been relied upon to buttress the submission that the JV is not discharged from its liability even after the contract is terminated and the work is awarded to a third party. In light of my finding that the present petition under Section 34 of the Act of 1996 is not maintainable, these judgments also would have no applicability.

58. In view of my above conclusion, the present petition and connected application are dismissed. No costs.

V. KAMESWAR RAO, J

MARCH 27, 2023