MBL Infrastructures Ltd. v. Rites Limited & Anr.

Delhi High Court · 14 Oct 2022 · 2022:DHC:4467

Anup Jairam Bhambhani

O.M.P. (COMM) 98/2022

2022:DHC:4467

civil petition_dismissed Significant

AI Summary

The Delhi High Court held that an order rejecting amendment of claims in arbitration is not an interim award and thus not challengeable under section 34 of the Arbitration & Conciliation Act, 1996.

Full Text

2022/DHC/004467

O.M.P. (COMM) 98/2022
HIGH COURT OF DELHI
Date of Decision: 14 October, 2022

O.M.P. (COMM) 98/2022
MBL INFRASTRUCTURES LTD. ..... Petitioner
Through: Ms. Anusuya Salwan with Ms. Nikita Salwan, Advocates.

VERSUS

RITES LIMITED & ANR. ..... Respondents
Through: Mr. G.S. Chaturvedi, Advocate.

CORAM:

HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI

JUDGMENT

(Released on: 27.10.2022)
ANUP JAIRAM BHAMBHANI J.
By way of the present petition under section 34 of the
Arbitration & Conciliation Act, 1996 („A&C Act‟ for short), the petitioner/claimant M/s MBL Infrastructures Ltd. impugns order dated 08.01.2022 made by the learned Sole Arbitrator in proceedings relating to disputes with respondent No. 1 M/s Rites Limited. It may be recorded at the outset that while the petitioner contends that order dated 08.01.2022 amounts to an „interim award‟ amenable to challenge under section 34 of the A&C Act, the respondent challenges the maintainability of the petition inter-alia on the ground that the impugned order is not an interim award.

2. By way of order dated 08.01.2022, the learned Arbitrator has rejected an application dated 29.01.2021 filed by the petitioner under section 23(3) of the A&C Act seeking amendment of the statement of claims.

3. Briefly, the genesis of the disputes between the parties is a contract for construction of Police Lines and Residential Quarters at Kondli Check Post in Delhi, awarded to the petitioner pursuant to a tender floated by respondent No. 1 as an agent of respondent No. 2/Ministry of Home Affairs (Delhi Police). By way of the amendment application dated 29.01.2021, the petitioner had sought the following amendments, which the petitioner contends, became necessary once respondent No. 1 finalized the running accounts bills raised by the petitioner upon the said respondent.

4. A summary of the amendments sought, as narrated in the pleadings, are quoted below, re-arranged in serial order: AMENDMENTS TO CLAIMS i. As per Statement of Claims dated 15.05.2018, the claim no. 1 stands as under: Claim No. 1 Refund of amount withheld for slow progress/milestone & withheld LD @ 10% of WD as per SBU Head (Upto 20th RA Bill) Rs. 3,71,23,235/- After the finalization of 23rd Running Account Bill, the Respondent No. 1 made further deductions on this account and has deducted cumulative amount of Rs.4,06,03,294/- and further interest @16% per annum amounting to Rs. 34,80,059/-. Therefore, the Petitioner sought amendment of Claim No. 1 to Rs. 4,06,03,294/- along with interest @10% per annum compounded monthly from the date of completion of work till the date of actual payment. ii. As per Statement of Claims dated 15.05.2018, the claim no. 2, 4 and 5 the Petitioner had claimed as under: Claim No. 2 Release of Net Payable (after deductions made by Rites) amount of 20th R/A Bill. Rs. 7,98,546/- Claim No. 4 Work done measured but part rates pending Rs. 1,30,17,774/- Claim No. 5 Work done but not measured (BOQ items/unmeasured & unpaid extra & deviated items) To be quantified During the currency of Arbitration proceedings, the Petitioner raised raised 21st, 22nd and 23rd Running Account/Final Bill. During the currency of the arbitration proceedings some payments were released to the Petitioner which are detailed as under: a. Rs. 53,82,856/- on 06.05.2019 towards RA Bill No. 21 b. Rs. 20,98,139/- on 19.06.2019 towards RA Bill No. 21 c. Rs. 72,00,000/- on 16.08.2019 towards RA Bill No. 22 d. Rs. 38,35,953/- on 07.12.2019 towards RA Bill No. 22 Therefore, the Petitioner sought merging and amendment of Claim NO. 2,[4] and 5. The Petitioner became entitled to Rs. 4,34,12,519/- against 23rd Running Account Bill, Rs. 7,84,988/- against 22nd Running Account Bill, Rs.1,32,27,336/- against balance escalation, Rs. 20,30,133.96 against extra items not taken into account by the Respondent No. 1 alongwith interest @ 10% per annum compounded monthly from the date of completion of work till the date of actual payment. The amendment under Claim No. 2, 4 and 5 were therefore necessitated on account of the finalization of the Final Bill handed over to the Petitioner on 29.12.2020. iii. As per Statement of Claims dated 15.05.2018 the claim no. 3 Claim No. 3 Release of amount deducted from various bills for Security Deposit Rs.2,00,56,457/- Running Account Bill the retention money/security deposit as per the Respondent was Rs.2,03,01,647/-. Therefore, the Petitioner sought amendment of Claim No.3 to Rs.2,03,01,647/- along with interest @ 10% per annum compounded monthly from the date of completion of work till the date of actual payment. iv. As per Statement of Claims dated 15.05.2018,the claim no. 6 Claim No. 6 Unauthorized/wrong deductions from RA Bills from time to time Rs.60,06,850/- Since certain payments were made by Respondent No. 1 during the Arbitration proceedings, the Petitioner sought amendment of Claim No. 6 to Rs.51,74,128/- along with interest @ 10 % per annum compounded payment. v. As per Statement of Claims dated 15.05.2018,the claim no. 7 Claim No. 7 Extra cost of overheads and Loss of Profits due to prolongation of contract Rs.12,18,09,881/- Till the finalization of 23rd Running Account Bill, the Petitioner has to incur extra expenditure for Bank Guarantee commission on performance bank guarantee, renewal of insurance policies for Contractor’s All Risk (CAR) Policy, workmen Compensation Policy etc. Since prolongation period has increased, therefore, the Petitioner sought amendment of Claim No. 7 to Rs.36,75,04,959.67 along with interest @ 10% per annum compounded monthly from the date of completion of work till the date of actual payment.. vi. As per Statement of Claims dated 15.05.2018, the claim No. 8 Claim No. 8 Amount due to change in Legislation Rs.1,11,96,681/- Running Account Bill, the amount due to change in Legislation have been reworked. Therefore, the Petitioner sought amendment of Claim No. 8 to Rs.1,24,92,855.66 and further mount (sic)of Rs.3,96,820/- on unpaid escalation and further amount of GST impact of Rs.16,37,561/- on work done and Rs.22,41,901.93 on escalation in respect of work done and escalation certified vide 23rd Running Account Bill along with interest @10% per annum compounded monthly from the date of completion of work till the date of actual payment. vii. As per Statement of Claims dated 15.05.2018, the claim No. 9 Claim No. 9 Cost of extra work/maintenance work/AMC charges because of delay in take-over of the project Rs.95,20,672/- Since further delay was caused by the Respondent No. 1, Claim 9 has been reworked. The Respondent No. 2 and Petitioner were regularly pursuing the Respondent No. 1 to handover the work to Public Works Department for maintenance. However, due to delay on the part of Respondent No.1, the Petitioner has to incur extra expenditure for maintenance of work and therefore, the Petitioner sought amendment of Claim No. 9 to Rs.1,32,86,648.77 along with interest @10% per annum compounded payment.”

5. The petitioner states that vide order dated 28.01.2021, at the instance of the learned Arbitrator, respondent No.2 Delhi Police were also impleaded as a party to the arbitral proceedings. Furthermore, as per minutes of proceedings dated 29.01.2021, the learned Arbitrator recorded that the amendment application would be taken-up on a subsequent date viz. 06.02.2021, whereupon the parties concluded their arguments inter-alia on the amendment application on 09.03.2021; and the learned Arbitrator thereafter directed that the cross-examination of the petitioner‟s witness CW-1 would continue.

6. It is the petitioner‟s contention that the amendment application dated 29.01.2021 had not been decided up until order dated 08.01.2022 was made by the learned Arbitrator, rejecting the application for amendment of the statement of claims; implying thereby that the amendment application, though filed in time, was decided belatedly. On Maintainability

7. In response to the preliminary objection taken by the respondent that order dated 08.01.2022 is not an award, and is therefore not amenable to challenge under section 34 of the A&C Act, Ms. Salwan submits that by way of order dated 08.01.2022 the learned Arbitrator has finally decided the claims made by the petitioner to the extent of the additional quantum against various claims sought by way of the amendments; and such final adjudication on the additional quantum of claims, is an „award‟ within the meaning of section 2(1)(c) and is therefore amenable to challenge under section 34.

8. Ms. Salwan argues that order dated 08.01.2022 is not a mere procedural order but finally determines the substantive rights of the petitioner with respect to the amended claims.

9. In support of this submission, Ms. Salwan cites the decision of a Coordinate Bench of this court in Cinevistas Ltd. vs. Prasar Bharti[1], in particular to the following portion of the said decision:

“22. The question that then arises is whether the order of the Ld. Arbitrator constitutes an ‘Award’. Under Section 2(1)(c), an award includes an ‘interim award’. Whether the impugned order in the present case constitutes an interim award or not is to be decided by seeing the nature of the order and not the title of the application, which was decided. The order, in fact, rejects the proposed amendments in claim nos. V and VI, by holding that the same are barred by limitation. Insofar as the difference between the newly claimed amounts and the earlier claimed amounts are concerned, this is a final adjudication. There is a finality attached to the award and there is nothing in the final award that would be dealing with these claims. It is not just an interim award, but a rejection of the additional claims/amounts finally. “23. The order is not to be construed as a mere procedural order or an order rejecting a technical amendment, but in fact a rejection of substantive claims. Amendments can be of several kinds. They canrange from mere amendment of cause title ,addition/deletion of few paragraphs, correction of errors, addition of new claims, correction of existing claims, etc. Every amendment is not to be treated in the same manner. The question in every case of amendment is as to whether it decides a substantive issue. …” (emphasis supplied) It is Ms Salwan‟s contention that applying the aforementioned

principle, which she says applies on all fours to the present case, it is clear that the learned Arbitrator has made a final adjudication on the additional quantum of claims; and therefore this court is entitled to entertain objections to the interim award under section 34 of the A&C Act.

10. On the other hand, Mr. G.C. Chaturvedi, learned counsel appearing on behalf of the respondent places reliance upon the decisions in Container Corporation of India Ltd. vs. Texmaco Ltd.[2] and M/s Shyam Telecom Ltd. vs.

ICOMM Ltd.[3] to argue that the impugned order is not an „interim award‟, since the entitlement of the petitioner to the additional quantum of claims has been kept open by the learned Arbitrator. In support of his submission, counsel for the respondent places emphasis on the following observations in Container Corporation (supra) and Shyam Telecom (supra): Container Corporation:

“5. An interim award is in the nature of a decision of the Arbitral Tribunal on some of the claims of the parties. Occasionally, the Arbitral Tribunal is called upon to give a part award particularly when a part of the claim of the claimant stands admitted by the opposite party either in the pleadings or otherwise. The act does not define an interim award. Section 2(c) of the Act, however provides that an arbitral award included an interim award. Generally an interim award is like a preliminary decree within the meaning of Section 2(2) of the Civil Procedure Code or it is like a decree based on the admissions of parties as envisaged under Order 12 Rule 6 CPC. However, in any case, an interim award must make a provisional arrangement by the Arbitral Tribunal during the proceedings pending before it, but before passing the final award. “6. I consider that dismissing of an application for amendment of the written statement whereby the petitioner was not allowed to include the counter claim at a belated stage cannot be termed as an interim award so as to allow challenging such order under Section 34. The petitioner would be at liberty to assail the final award and can take all the ground of challenge as available under law as and when final award is passed by the learned Arbitral Tribunal. The petitioner cannot be allowed to challenge dismissal of its application for amendment as an interim award. One of the purposes of enactment of Arbitration & Conciliation Act, 1996 was to minimize the intervention of the courts during arbitral proceedings and that is why Section 5 of the Act prohibits the Courts from interfering in the arbitration process. The judicial

2009 SCC OnLine Del 1594 (2010) 117 DRJ 642 intervention during arbitral proceedings is not permissible unless it is specifically provided by Part-I of the Act. The effect of nonobstantive clause in Section 5 is that the provisions of Part-I of the Act will prevail over any other law for the time being in force in India. This provision recognizes minimum role of judicial intervention in arbitral proceedings. It clearly brings out the object of the Act i.e. to minimize the judicial intervention and to encourage speedy and economic resolution of disputes by the arbitral tribunal, in case where the disputes are entered by the arbitration agreement.” Shyam Telecom: “8. (i) The second and third contentions as raised by the counsel for the petitioner are that the impugned order amounts to an interim Award, in that the arbitrator has decided issues on merits viz of fraud as alleged in the amendment application and that too without first allowing the amendment application and setting down the cases for trial. At first blush, this argument may appear to be attractive, however, if this plea is accepted in its extreme position, then the same would mean that once disputed questions of fact by means of an amendment application are raised, the arbitrator is bound to allow the application because until and unless the facts which are asserted in the application under Order 6 Rule 17 CPC are not decided in trial, such an application has to be compulsorily allowed although the facts do not fall within the parameters of allowing such application. This argument in my opinion cannot and should not be countenanced. Even a Civil Court, no doubt considers an application for amendment liberally, however, it is settled law that if the Court finds an application to be not bona fide in the facts and circumstances of a particular case, the Court also dismisses the said application and it cannot be contended that merely because the application for amendment would contain disputed factual aspects the application necessarily ought to be allowed on the ground that unless trial takes place on the disputed facts of case the applicant should not be denied opportunity to place such amended pleadings on record. No doubt ordinarily merits of facts ordinarily are not considered at the time of allowing amendment, but it does not debar the adjudicating authority from dismissing and amendment application if the application is not bona fide and as per the other facts and circumstances of the case. By such a decision the impugned order however does not become an interim Award. The arbitrator in the facts of the case has in effect held that the facts sought to be brought in by amendment are not bona fide being not true. By doing so the arbitrator has exercised a discretion which I don’t think ought to be interfered with merely because two views are possible. (ii). As regards the aspect that the impugned order decides the case of the respondent on merits by deciding the pleas of fraud and other aspects, all I need state is that an interim order when it makes observations, they are only necessary and made for the purpose of disposal of that application. It is not as if these observations will in any manner bind the parties with respect to the existing issues and the existing pleadings which would in any case have to be decided on merits de hors the observations made in the impugned order. Observations made in any interim order cannot and does not bind the parties at the final stage of the proceedings. In my opinion the arbitrator was further justified in taking one plausible view that the amendments would not serve any purpose. By holding so and exercising such discretion the order does not become an interim Award which has to be a final judgment on the existing issues. All this ultimately depends on facts of each case and in my opinion there is no gross illegality so as to persuade this Court to interfere in these proceedings. “9. I must admit that one of the main reason which had pursued me not to entertain the present petition is that by dismissal of this petition the petitioner is not left remedyless and the entitlement of the petitioner to challenge this interim order dated 1st December, 2009 will very much be there when the petitioner will challenge the final Award in this case if passed by the arbitrator against it. I have also kept in mind the intention of the 1996 Act that there should not be unnecessary judicial intervention in the arbitration proceedings which must be allowed to proceed and progress of which should not be allowed to be scuttled by the parties. In my opinion since the petitioner is otherwise fully secured because not only would the observations made in the impugned order not affect his existing case on merits, but with respect to the new pleas which were sought to be raised including the plead of fraud can well be challenged by the petitioner after passing of the final Award in the case, I am not inclined to entertain this petition.”

11. It is Mr. Chaturvedi‟s contention, that tested on the touchstone of the above referred legal principles, the impugned order does not amount to an „interim award‟; and therefore, the present challenge under section 34 of the A&C Act is not maintainable. On Merits of Amendments Sought

31,010 characters total

12. In so far as the merits of the amendments sought are concerned, Ms. Salwan submits that the petitioner had invoked arbitration proceedings during the currency of the contract, at which time the petitioner was still undertaking work for construction of police lines and residential quarters for respondent No. 1; and towards the work done, the petitioner had submitted to respondent No. 1 running account bills from time-to-time. Since the work was on-going, in invocation notice dated 24.11.2017, the petitioner had specifically reserved its right under section 23(3) of the A&C Act to prefer additional claims, or to amend or modify the claims made, in the following words: “The Claimant reserves the right under Section 23(3) of the Arbitration and Conciliation Act, 1996 to prefer additional claims, to amend or modify the statement of claims The Claimant reserves its right to make submissions, fille (sic) further documents and to make detail submission (sic) at appropriate time. The Claimant reserves right to add, to vary, modify or otherwise elaborate its averments, contentions and submission (sic) and to submit documents in support of its contentions.”

13. Ms. Salwan argues that after the learned Arbitrator had already entered upon reference and had held the first arbitral proceedings on 22.03.2018. While arbitral proceedings were going-on, work on the project was completed, defects were rectified, and in fact the project was even inaugurated on 06.03.2019. During this time, vide letter dated 03.02.2020, the petitioner submitted to respondent No. 1 the 23rd Running Account & Final Bill for certification and finalization. However, in the meantime, by reason of the COVID-19 pandemic, no arbitral proceedings could be held from 15.03.2020 to 08.12.2020; and at the proceedings held on 08.12.2020, the learned Arbitrator directed respondent No. 1 to file the final bill. At this point, while supplying a copy of the 23rd Running Account & Final Bill, respondent No. 1 clarified that the said final bill was subject to change since the technical and financial vetting were yet to be carried-out.

14. It is the petitioner‟s contention that it was upon receipt of the final, verified bill from respondent No. 1, that the petitioner filed the application to bring on record subsequent developments and documents on 05.01.2021; and on 29.01.2021 the petitioner also filed the application seeking amendment of the statement of claims, which application has come to be dismissed vide impugned order dated 08.01.2022.

15. Ms. Salwan submits that the learned Arbitrator has dismissed the amendment application principally on the ground that the application was filed after delay of some 03 years from the date of initiation of arbitral proceedings, failing to appreciate that the amendment application was filed in view of the final bill having been supplied by respondent No. 1 to the petitioner on 29.12.2020. Also, at the time when the amendment application was filed, cross-examination of the claimant‟s witness had just begun, and the amendment application remained pending before the learned Arbitrator for over a year. It is submitted that in fact, evidence of the parties is yet to be concluded. It is argued that the learned Arbitrator has failed to appreciate that the final bill was received by the petitioner only on 29.12.2020 after approval from respondent No. 1; at which point, the petitioner discovered that respondent No. 1 had made various illegal deductions from the said final bill, which made it necessary for the petitioner to seek amendment of its statement of claims. On Amendment of Pleadings

16. On the principles for amendment of pleadings, Ms. Salwan has also placed reliance on the decision of the Hon‟ble Supreme Court in M/s Chakreshwari Construction Pvt. Ltd. vs. Manohar Lal[4], in particular to the following observations:

“13. The principle applicable for deciding the application made for amendment in the pleadings remains no more res integra and is laid down in several cases. In Revajeetu Builders and Developers v. Narayanaswamy & Sons [Revajeetu Builders and Developers v. Narayanaswamy & Sons, (2009) 10 SCC 84 : (2009) 4 SCC (Civ) 37], this Court, after examining the entire previous case law on the subject, culled out the following principle in para 63 of the judgment which reads as under: (SCC p. 102) “63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.”

“14. Applying the aforesaid principle of law to the facts of the case at hand, we are of the considered opinion that the amendment proposed by the appellant so also the permission sought for filing additional documents deserved to be allowed. “15. It is for the reasons that firstly, the amendment proposed did not change the nature of the case originally set up by the appellant in the eviction petition; secondly, the amendment did not introduce any fresh cause of action; thirdly, the amendment was relevant for deciding the question of subletting and availability of alternative accommodation with the respondent; fourthly, the facts proposed in the amendment not being in the personal knowledge of the appellant and having obtained from the State Department concerned recently, the same could be allowed to be brought on record for its consideration; fifthly, no prejudice was likely to be caused to the respondent, if the applications had been allowed because the respondent in such eventuality would have got an opportunity to make consequential amendment in his written statement and file additional documents in rebuttal; and lastly, in order to prove the

case, the amendment proposed and permission to file documents should have been granted.”

17. Attention is also drawn to the following observation of the Hon‟ble Supreme Court in Rajesh Kumar Aggarwal vs. K.K. Modi[5]:

“20. … The court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. There is a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. The amendments sought for by the appellants have become necessary in view of the facts that the appellants being the beneficiaries of the Trust are not deriving any benefit from the creation of the Trust since 1991-92 and that if the shares are sold and then invested in government bonds/securities the investment would yield a minimum return of 10-12%. It was alleged by the appellants that Respondent 1 is opposing the sale in view of the fact that if the said shares are sold after the suit is decreed in favour of the appellants, he will be the loser and, therefore, it is solely on account of the attitude on the part of Respondent 1 that the appellants have been constrained to seek relief against the same.”

18. It is argued that by way of the amendments sought, the petitioner was not attempting to change the nature of the case set-up against respondent No. 1 but was only seeking enhancement of the quantum of the claims made; which would not have caused any prejudice to the respondents, especially since the amendments were necessitated on the account of respondent No. 1 delaying the approval of the final bill submitted to it by the petitioner. It is argued that the amendments sought were necessary and bona-fidé.

19. On the other hand, the petitioner submits that disallowing the amendments has caused serious prejudice to the petitioner, who would be compelled to initiate fresh arbitral proceedings in respect of the illegal deductions made by respondent No. 1 from the final bill.

20. Mr. Chaturvedi however argues, that by way of the impugned order, the learned Arbitrator has observed that the petitioner‟s entitlement to the additional amounts claimed, can be looked into even without amendment of the statement of claims; and has only declined amendment insofar as introduction of certain additional paras is concerned.

21. It is also argued that the petitioner has not acted bona-fidé in seeking amendments to the statement of claims, inasmuch as amendments have been sought after the petitioner learned of the stand taken by respondent No. 1 in another arbitral proceeding between the same parties, in relation to construction of staff quarters at Hari Nagar; and the petitioner‟s intention is to fill-up lacunae in its statement of claims by seeking to add additional paras. Discussion & Conclusions

22. This court has considered the averments made in the petition and the submissions made, in the light of the position of law as enunciated in the decisions cited above.

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: “8. Apart from the above amendment, the statement of claim has been sought to be amended after para 126 and 127, wherein certain new pleadings have been incorporated. I have seen the same. Except for fact of Completion certificates and final bill, there are no subsequent developments and other events which were not existing at the time of filing of Statement of Claims. The amounts as well as the description of the claims as per the prayer clause have been changed. * * * * * * “13. Contention of the Claimant that it found necessary to amend the statement of claims after the direction by the Arbitrator & final bill placement on 29.12.2020 is not correct as Claimant had already filed the final bill on 03.02.2020. (refer para 10 above). “14. I have gone through the documents submitted as well as the judgements cited by both the parties in favour of their arguments. I am also aware that I cannot go beyond the terms & reference of the contract agreement. The main dispute relates to levy of LD and the deductions by Respondent. So far as Final Bill and the amounts passed and entitlement of Claimant is concerned, the same can be looked into by me, even without the amendment in Statement of Claim, though there is some merit in the argument of Respondent on the point that the amount of Claims cannot be changed as per Clause 25(8) of Contract. The manner of passing of the same, can always be looked into by me, without amendment of Statement of Claim.

“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.”

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.

26. In the above view of the matter, the present petition is not maintainable; and is accordingly dismissed, taking note of the aforesaid observations made by the learned Arbitrator that he would consider the quantum of claims sought to be raised by the petitioner arising from final bill dated 03.02.2020.

27. The petition stands dismissed in the above terms.

28. Other pending applications, if any, also stand disposed of.

ANUP JAIRAM BHAMBHANI, J OCTOBER 14, 2022 ds/uj

MBL Infrastructures Ltd. v. Rites Limited & Anr.

AI Summary

Full Text

JUDGMENT

Contact Us for a Free Consultation