Manipur High Court
The Chief Engineer vs M/S Keystone Infra Private Limited on 16 January, 2025
Author: Ahanthem Bimol Singh
Bench: Ahanthem Bimol Singh
[1]
Digitally signed by
SHOUGRAKPAM SHOUGRAKPAM DEVANANDA
DEVANANDA SINGH
Date: 2025.01.16 13:26:34
IN THE HIGH COURT OF MANIPUR
SINGH +05'30'
AT IMPHAL
CRP(CRP Art. 227) No. 36 of 2024
(Ref:- Judl. Misc. Case No. 32 of 2024)
The Chief Engineer, Public Works Department (including NH
& NEC) Imphal, Ground Floor, North Block, PWD Complex,
Khoyathong, Imphal, Manipur - 795001.
... Petitioner
-Versus-
M/s Keystone Infra Private Limited, No. 8-2-338/6, Road
No. 3, Panchavati Colony, Banjara Hills, Hyderabad-500034,
Telengana
... Respondent
B E F O R E
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the petitioner :: Mr. M. Rarry, Senior Advocate assisted
by Ms. Brizet, Advocate
For the respondent :: Mr. H.S. Paonam, Senior Advocate
asstd. by Mr. Purvesh Buttan, Advocate
Date of hearing :: 04-11-2024
Date of judgment :: 16-01-2025
J U D G M E N T
[1] Heard Mr. M. Rarry, learned senior counsel assisted by
Ms. Brizet, learned counsel appearing for the petitioner and
Mr. H.S. Paonam, learned senior counsel assisted by Mr. Purvesh
Buttan, learned counsel appearing for the respondent.
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[2]
The present petition had been filed assailing the order dated
25-07-2024 passed by the learned District Judge, Imphal West, in
Judl. Misc. Case No. 32 of 2024 (Ref:- Judl. Misc. Case No. 37 of 2023).
By the said order, the application filed by the respondent for amendment
of its reply dated 14-08-2023 filed in connection with the Judl. Misc. Case
No. 37 of 2023 had been allowed.
[2] As per the pleadings set out by the parties, the facts of the
present case, in a nutshell, are that the petitioner awarded the contract
for improvement of Bishnupur-Nungba Road and an agreement for the
work was entered into between the petitioner and the respondent on
12-06-2023 for a contract value of Rs. 92,25,04,156.23 p.
[3] Certain disputes arose between the parties during the
execution of the work which could not be settled and the respondent
invoked arbitration clause for adjudication of the disputes through
arbitration. Accordingly, a sole arbitrator was appointed to adjudicate
upon the disputes.
[4] After hearing both the parties, the Tribunal passed an award
dated 20-02-2023 for an amount of Rs. 96,16,28,522/- in favour of the
respondent.
[5] On 17-07-2023, the petitioner filed an Arbitration Petition
before the Court of District Judge, Imphal West, for setting aside the
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[3]
Arbitral Award dated 20-02-2023. An application, registered as Judl.
Misc. Case No. 37 of 2023, was also filed under Section 34(3) of the
Arbitration & Conciliation Act, 1996 (hereinafter referred to as the “Act”,
for short) praying for entertaining the said accompanying arbitration
petition.
The respondent filed its reply dated 14-08-2023 to the said
condonation application and the petitioner filed its rejoinder dated
16-08-2023 to the said reply filed by the respondent.
[6] The original stand taken by the petitioner in its condonation
application, i.e., Judl. Misc. Case No. 37 of 2023, was that the petitioner
received the Arbitral Award on 14-03-2023 and as such, the limitation
period of 120 days as provided under Section 34(3) of the Act expired
on 12-07-2023.
[7] Taking into consideration the original stand of the petitioner
made in its condonation application that the petitioner received the
Arbitral Award on 14-03-2023 and as the arbitration petition was filed
only on 17-07-2023, a preliminary objection about the maintainability
of the said petition was raised by the respondent in its reply dated
14-08-2023 on the ground that the said petition was filed beyond the
prescribed period of limitation of 120 days as provided under Section
34(3) of the Act and the court has no power to condone such delay as
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[4]
the period of limitation is sacrosanct and cannot be condoned beyond
the statutory period as provided under the Act.
[8] Another preliminary objection raised by the respondent in
its reply dated 14-08-2023 was that as the petitioner’s counsel was
apprised about the passing of the award on 20-02-2023 and the signed
copy of the award was also served upon the petitioner, the Arbitration
Petition filed by the petitioner was beyond the statutory period of
limitation prescribed under the Act, hence liable to be rejected/dismissed
on that ground itself.
[9] It is the case of the respondent that it was only after the
argument at length was addressed on behalf of the respondent in
connection with the condonation application and orders on the said
application was reserved, the petitioner filed the following two
applications:-
(a) Judl. Misc. Case No. 45 of 2023 (Ref:- Judl. Misc. Case No.
37 of 2023) with a prayer for permitting the petitioner to
amend the condonation application (Judl. Misc. Case No. 37
of 2023) as proposed in the said application. The proposed
amendments are as under:-
“7. That, this application is bonafidely filed with a prayer for permission
to amend Para No. 3, 4 and Prayer Clause of the Judicial Misc. Case
No. 37 of 2023 by way of substitution, addition and deletion in the
manner submitted below:
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[5]
“7.1. In Para no. 3, the following portion of the said para may be
permitted to be amended by way of addition and substitution of
pleadings, as under:
UNAMENDED PLEA:
“That, the Arbitral Award was sent by the Arbitrator through post
to Shri. S. Jasobanta Singh, Advocate representing the
Petitioner in the Arbitration Proceeding. The said Counsel
received the Award on 13.03.2023 in the afternoon and the
same was forwarded to the Applicant on 14.03.2023. Hence, the
period of 120 days expires on 12.07.2023”
PROPOSED AMENDMENT:
“That, the Arbitral Award dated 20.02.2023 was sent by the
Arbitrator on 10.03.2023 through DTDC Courier, Nehru Place,
Delhi, to Shri. S. Jasobanta Singh, Advocate who represented
the Applicant in the Arbitration Proceeding. The said Counsel is
said to have received the Award on 13.03.2023 and vide letter
dated 14.03.2023, the said Award was delivered to and received
by the Applicant on 05.04.2023 vide R.R. no. 29/CE of Receipt
Register of Chief Engineer Office, PWD, Manipur. Hence, the
extendable period of 30 days after the expiry of 3 months from
the receipt of Arbitral Award expires on 04.08.2023”.
“7.2. In Para no. 4, the following portion/ words of the said para may
be permitted to be amended by way of addition and substitution
of pleadings, as under:
(A) In Sub-Para 5, the word appearing as “from the receipt of
the Arbitral award on 14.03.2023” may be permitted to be
substituted by “from the receipt of Arbitral award on
05.04.2023”.
B) In Sub-Para 6, the words appearing as “by the Applicant on
14.03.2023” may be permitted to be substituted as “by the
Applicant on 05.04.2023.
(C) Before the beginning of the last Sub-Para 8 and end of Sub-
Para 7, the following may be permitted to be added:”
“An unintentional delay of 11 days in filing the accompanying
Arbitration Petition has occurred after the expiry of 3 (three)
months limitation period as prescribed under Section 34 (3) of
the Act. The said bonafide delay of 11 days was not willful or
deliberate, as the Applicant representing the Public Work
Department, Manipur, was required to take several steps
involving procedural compliance in the decision making
process of the Government to file the accompanying Arbitration
Petition and also in view of the sudden onset of law and order
problems of unprecedented nature, as stated above. However,
the present Arbitration Petition has been filed on 17.07.2023
within the extendible period of 30 days expiring on 04.08.2023
and for which the Humble Applicant has furnished sufficient and
reasonable cause for the delay of 11 days”.
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[6]
“7.3. In the Prayer Clause, the following portion/ words of the said
clause may be permitted to be amended by way of addition and
substitution of pleadings, as under:
The words originally appearing as filed by the Applicant within
120 days of receiving the Arbitral Award by the Applicant
(received on 14.03.2023 and expiring on 12.07.2023 (during
Civil Court Summer Vacation)”
IS NOW PRAYED TO BE AMENDED BY WAY OF
SUBSTITUTION as “filed by the Applicant within 120 days of
receiving the Arbitral Award by the Applicant, by condoning a
delay of 11 days, in the condonable period of 30 days, after
expiry of 3 months limitation, as prescribed in Section 34 (3) of
the Arbitration and Conciliation Act, 1996 (award is received on
05.04.2023 and the condonable period of 30 days expires on
04.08.2023)”.
The said amendment application was allowed by the District
Judge, Imphal West, by an order dated 08-01-2024 subject to payment
of cost of Rs. 10,000/- and directing the petitioner to file a recast
application after due incorporation.
(b) Judl. Misc. Case No. 46 of 2023 (Ref:- Judl. Misc. Case No.
37 of 2023) with a prayer for permitting the petitioner to file the
following two documents:-
(i) The original letter dated 14-03-2023 of Shri S. Jasobanta
Singh, Advocate; and
(ii) The certified to be True Copy of the relevant pages
(5 pages) of the Receipt Register of Chief Engineer Office,
PWD, Manipur, showing RR No. 29/CE dated 05-04-2023
(including cover page, first page, relevant page, last RR
entry and last page of the RR Book).
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[7]
The said application was allowed by the learned District Judge,
Imphal West, by an order dated 16-10-2023 by permitting the petitioner
to file the enclosed documents and by observing that the original
documents of the documents listed at Sl. No. 2 of the application may be
produced before the court, if the circumstances called for.
[10] It is also the case of the respondent that only after the
respondent raised specific objections regarding maintainability of the
amendment application, i.e., Judl. Misc. Case No. 45 of 2023, on the
ground that as per law of estoppel, the petitioner is estopped from going
back from his earlier written submissions as submitted in the rejoinder
dated 16-08-2023 filed by the petitioner in connection with the
condonation application (Judl. Misc. Case No. 37 of 2023), the petitioner
filed the following application:-
Judl. Misc. Case No. 58 of 2023 with a prayer for permitting
the petitioner to amend the pleadings made in the rejoinder.
The proposed amendments are as under:-
“11. That, there is a bonafide necessity by the Applicant to also amend
the pleadings in in “Paras no. 1.4, 1.6, 1.7., 1.7.(a) & 1.7.(b) and 5 of
Rejoinder Reply dated 16.08.2023 of the Applicant filed in reply to
Respondent response to pending Judicial Misc. Case no. 37 of
2023” in the manner proposed and provided below:
PROPOSED AMENDMENT
“11.1. In Para no. 1.4, the following portion of the said para may be
permitted to be amended by way of addition and substitution of
pleadings, as under:
UNAMENDED PLEA:
“1.4. ……….. The date of receipt of the original signed Award by
the Applicant is 14.03.2023 in terms of Section 34(3) of the Act.
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[8]
………….. Hence, the starting period for calculating limitation
would be from 14.03.2023 and the 3 months period for filing
Application under Section 34 would expire on 14.06.2023. The
present Application could not be filed within the said 3 months
period but has been filed within the extended period of 30 days
after the expiry of the 3 months periods which expired on
14.05.2023″.
PROPOSED AMENDMENT:
“1.4. ……….. The date of receipt of the original signed Award by
the Applicant is 05.04.2023 in terms of Section 34 (3) of the Act.
………. Hence, the starting period for calculating limitation
would be from 05.04.2023 and the 3 months period for filing
Application under Section 34 would expire on 05.07.2023. The
present Application could not be filed within the said 3 months
period but has been filed within the extended period of 30
days, after the expiry of the 3 months periods, and which
finally expire on 04.08.2023″.”
“11.2. In Para no. 1.6., the following portion/ words of the said para may
be permitted to be amended by way of deletion and substitution of
pleadings, as under:
UNAMENDED PLEA:
“1.6. …………. of receiving the Arbitral Award by the Applicant on
14.03.2023. The period of the extended 30 days consequent
upon the expiry of 3 months from the date of receipt of the
Award would expire on 12.07.2023 (during the Summer Vacation
of the Courts from 08.07.2023 till its opening on 17.07.2023)
PROPOSED AMENDMENT
“1.6. ……………. of receiving the Arbitral Award by the Applicant on
05.04.2023. The period of the extended 30 days consequent
upon the expiry of 3 months from the date of receipt of the
Award would expire on 04.08.2023.”
“11.3. In Para no. 1.7., the following portion/ words of the said clause may
be permitted to be amended by way of addition and substitution of
pleadings, as under:
UNAMENDED PLEA:
“1.7. ………….Hence, the present Application is filed within 30 days
of the receipt of the Arbitral Award on 14.03.2023 by the
Applicant.
PROPOSED AMENDMENT
“1.7. …………… Hence, the present Application is filed within the
condonable period of 30 days of the receipt of the Arbitral
Award on 05.04.2023 by the Applicant.”
“11.4. In Para no. 1.7., the following portion/ words of the said clause may
be permitted to be amended by way of addition and substitution of
pleadings, as under:
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[9]
(i) AFTER Para no. 1.7., there is mistake in the numbering of para
with repetition of Para no.1.7. and same is prayed to be corrected
as under.
UNAMENDED PLEA :
“1.7………………….”
PROPOSED AMENDMENT
“1.8. …………………”
(ii) In the un-corrected para no. 1.7. now proposed to be correctly
re-numbered as para 1.8., the following amendment is prayed for.
UNAMENDED PLEA:
“1.7. ………… Hence, the present Application is filed within 30 days
of the receipt of the Arbitral Award on 14.03.2023 by the
Applicant”.
PROPOSED AMENDMENT
“1.8. …………… Hence, the present Application is filed within
condonable period of 30 days of the receipt of the Arbitral
Award on 05.04.2023 by the Applicant”.
(iii) In the un-corrected para no. 1.7. (a) now proposed to be correctly
re-numbered as para 1.8. (a), the following amendment is prayed
for.
UNAMENDED PLEA:
“1.7.(a) After receipt of the Award by the Applicant on 14.03.2023, the
Applicant perused the Award and felt it necessary to seek
legal opinion from S. Jasobanta Singh, Advocate
……………..”
PROPOSED AMENDMENT
“1.8.(a) After receipt of the Award by the Applicant on 05.04.2023, the
Applicant perused the Award and the forwarding letter dated
14.03.2023 and felt it necessary to see the legal opinion
received from S. Jasobanta Singh, Advocate ……………..”
(iv) In the un-corrected para no. 1.7. (b) now proposed to be correctly
re-numbered as para 1.8. (b), the following amendment is prayed
for.
UNAMENDED PLEA:
“1.7.(b) The Counsel Shri S. Jasobanta Singh, Advocate reverted
back to the Applicant on 03.04.2023 opining that there are
good grounds for filing an Application for setting aside the
Award under Section 34 of the Act, as the Ld. Sole Arbitrator
has never considered the grounds/pleas taken in the
Statement of Defense and the Counter Claim and the award
suffers from patent illegality”.
PROPOSED AMENDMENT
“1.8.(b) The Counsel Shri S. Jasobanta Singh, Advocate in the letter
dated 14.03.2023 opined that there are good grounds for
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[10]
filing an Application for setting aside the Award under
Section 34 of the Act, as the Ld. Sole Arbitrator has never
considered the grounds/pleas taken in the Statement of
Defense and the Counter Claim and the award suffers from
patent illegality, as seen from contents of said letter dated
14.03.2023″.
“11.5. In Para no. 5, the following portion/ words of the said clause may be
permitted to be amended by way of addition and substitution of
pleadings, as under:
UNAMENDED PLEA :
“5. ……………… as the Award was received by the Applicant through
post only on 14.3.2023, as stated above.”
PROPOSED AMENDMENT
“5 …………. as the Award was received by the Applicant’s Counsel
through post only on 13.3.2023, as stated above.”
The said application was allowed by the learned District Judge,
Imphal West, by an order dated 08-01-2024 subject to payment of cost
of Rs. 10,000/- and directing the petitioner to file a recast rejoinder after
due incorporation.
[11] After payment of cost and filing of recast application/ rejoinder,
the respondent filed a new reply dated 02-03-2024. In response, the
petitioner filed an application registered as Judl. Misc. Case No. 26 of
2024 dated 08-03-2024 with a prayer for rejecting the said new reply filed
by the respondent on the ground that the respondent illegally amended
para E and J and adding additional pleadings as para L, M and N as well
as in para 2, 3 and 4 of the parawise reply and a new case has been set
up by the respondent in the guise of replying to the amendment made
by the petitioner by raising a totally new plea, case and claims
inconsistent with the previous pleadings.
CRP(CRP Art. 227) No. 36 of 2024 Contd.../- [11] [12] Subsequently, the respondent filed the following two
applications – one, for allowing amendment of his reply dated
14-08-2023 filed in connection with the condonation application (Judl.
Misc. Case No. 37 of 2023) and another, for allowing to file two additional
documents:-
(a) Judl. Misc. Case No. 32 of 2024 (Ref:- Judl. Misc. Case No.
37 of 2023) with a prayer, inter alia, for permitting the
respondent to amend the pleadings in the reply dated
14-08-2023 filed in connection with the condonation
application as proposed in the said application. The proposed
amendments are as under:-
“7. That there is bonafide necessity by the applicant/ respondent to
further clarify/add or amend the pleadings in “Para nos. E, J, L, M,
N of the preliminary submissions and Para nos. 2 and 3 of reply on
merits” of the reply dated 14.08.2023 (filed with changes as reply
dated 02.03.2024) to the unamended application U/s. 34(3) of the
non-applicant/ petitioner and which finds mentioned in reply dated
02.03.2024 filed by the applicant/ respondent to the amended
application U/s. 34(3) of the petitioner/opposite party in Judl. Misc.
Case No. 37 of 2023 in the manner as proposed and provided
hereinbelow:
PROPOSED AMENDMENT
“7.1. In para no. E of the preliminary submissions of the reply dated
14.08.2023; the following portion of the said para may kindly be
permitted to be amended by way of an addition and substitution
of pleadings, as under:
UNAMENDED PARAGRAPH E OF THE PRELIMINARY SUBMISSIONS:
“E. That in the case of Simplex Infrastructure Limited vs. Union of
India 2019 (2) SCC 455, the Apex Court, relying on the judgment
in the case of Popular Construction (Supra) interpreted the
words “but not thereafter” occurring in Section 34(3) of the Act,
and emphasized the importance of limitation in filing an
application under Section 34 and held that not a day beyond 120
days from the date of receipt of the Award can be condoned by
the Court. A reading of these judgments is a pointer to the fact
that while in condonation of delay, the Courts have beenCRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[12]
generally liberal, but when it comes to Section 34(3) of the Act,
the limitation period is inelastic and meant to be strictly
followed. Therefore, under this jurisdiction, the applicant would
have to pass a higher threshold of showing that his conduct was
of due diligence and dispatch and a casual explanation for delay
cannot and should not be accepted. The applicant has to show
not only due diligence in filing within the 30 days period, but
more importantly, “sufficient cause” has to be shown, which
prevented the applicant for 3 months in filing the petition.
Whereas, in the present case the applicant has no tenable
reasons much less to say any justifiable reason as the objection
petition itself has been filed by the applicant after a period of
more than 8 months approximately, which can for by no reasons
be said to be reasonable and by no means can be condoned by
the Hon’ble Court as the period of limitation is sacrosanct and
cannot be condoned beyond the statutory period as provided in
the Act. ”
PROPOSED AMENDMENT
At the end of paragraph no. E of the preliminary submissions of the
reply dated 14.08.2023, the following lines be added i.e.,
“That the application is not maintainable and liable to be
dismissed as the application under reply is gross abuse of the
process of law and thus liable to be dismissed as applicant for
no purposes could be allowed to take any advantage of its own
wrongs and mischief’s. The applicant has not approached this
Hon’ble Court with clean hands and honest intention; therefore,
applicant is guilty of SUPPRESSIO VERI, SUGGESTIO FALSI.
The Applicant has suppressed material facts and relevant
information from this Hon’ble Court and has formulated a /flimsy
and concocted story mentioning false incidents and frivolous
grounds hence, the application is liable to be dismissed with
costs.”
“7.2. In Para no. J of the preliminary submissions of reply dated
14.08.2023; the following portion of the said para may kindly be
permitted to be amended by way of an addition and substitution of
pleadings, as under:
Unamended Para no. J of the preliminary submission of reply
dated 14.08.2023;
J. That the application is further not maintainable and liable to be
rejected as applicants counsel was apprised about the passing
of the award on 20.02.2023 and the signed copy of the award
was also served upon the applicant, meaning thereby that the
objection as filed by the applicant is beyond the statutory
period as prescribed under the Act, hence liable to be rejected/
dismissed on this ground itself.
PROPOSED AMENDMENT
In paragraph no. E of the preliminary submissions of the reply dated
14.08.2023, the following lines be added i.e.,CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[13]
“J. ………. On 20.2.2023 by way of an e-mail from the Arbitral
Tribunal with signed copy of the award duly attached as
annexure ……”
“7.3 The following paragraphs no. L, M and N may kindly be allowed to
be added and be read as part of the preliminary submissions of
the reply dated 14.08.2023 i.e.,
L. EFFECTIVE DATE OF SERVICE
That the respondent respectfully submits that the Hon’ble
Arbitral Tribunal vide e-mail dated 20.02.2023 had sent the
signed scanned copy of the award to both the petitioner and
the respondent on their e-mail id’s and as per the settled catena
of Judgment it is now to be deemed to be an effective date of
service of the award for the purpose of computation of the
period as stipulated U/s. 34(3) of the Act, hence for all purposes
the entire controversy as created by the petitioner to be the
date of effective service to be 14.03.2023 or 05.04.2023 is of no
consequence and significance in view of the settled principle
of law as laid down by catena of judgments. It is now the settled
principle of law that the intent and purpose of Section 31(5) of
the Act is to make the party aware of the passing of the award
and the non-receipt of the physical signed copy of the award is
of no significance as it has come to the knowledge of the
parties that the award has been passed and the copy of the
award has been served by way of e-mail. Therefore, the date on
which the parties are put to the knowledge of the award and its
content, which in the present case is on 20.02.2023 by way of
an e-mail of AT, then that would be the date of effective service
i.e., 20.02.2023 for the purpose of calculation of statutory
period of filing Section 34 objection to the Award. Hence, in the
present scenario and settled proposition of law the period to
be computed is to be from 20.02.2023 and admittedly the
objection under section 34 of the Act has been filed on
17.07.2023 which is hopelessly time barred and cannot be
considered to be proper and within limitation as prescribed
under law.
The respondent submits that the Hon’ble Arbitral Tribunal (AT)
had sent the signed copy of the Award dated 20.02.2023 by way
of an e-mail dated 20.02.2023 itself which fact could clearly be
established from the attachment to the e-mail. The respondent
seeks the liberty to place on record the screen shots of the e-
mail and also random pages of the attachment i.e., the signed
copy of the award dated 20.02.2023 which would clearly show
that the copy as sent by e-mail by the AT was a signed copy of
the Award. The said screen shots are attached as Annexure R-
1. The respondent also seeks to place on record the entire copy
of the award dated 20.02.2023 which was received through e-
mail dated 20.02.2023 for the ready and kind perusal of the
Hon’ble Court as Annexure R-2. The respondent submits that
the respondent is ready and willing to share the e-mail and the
attachment with the court on the official e-mail id of the Court
or if permitted to show the e-mail and the attachment in theCRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[14]
court. The petitioner now in view of settled proposition of law
has no mouth to say that the objection as filed under section
34 of the Act is filed within the statutory period as provided
under the Act.
The controversy ends with the said fact that the signed copy of
the Award dated 20.02.2023 was served on 20.02.2023 itself.
Hence, it does not come to the rescue of the petitioner to now
allege that the petitioner was served on 05.04.2023 and that
therefore, three months and thirty days as envisaged U/s. 34(3)
would commence from 05.04.2023. It is reiterated that, as per
the settled proposition of law as laid down vide several
judgments, the date of commencement/ start of limitation to
Rile petition U/s. 34 of The Arbitration and Conciliation Act,
1996 (as amended up to date) would be 20.02.2023, hence the
commencement of limitation in the present case would
commence from 20.02.2023 and accordingly the statutory
period as prescribed U/s. 34(3) of the Act (i.e., three months and
extended period of 30 days) would end on 20.06.2023, whereas
the application U/s. 34 of the Act was Riled only on 17.07.2023,
hence hopelessly time barred under law and the recast
application under reply is liable to be dismissed with exemplary
cost.
M. That the application is further not maintainable more specially
when as per the Judgments of the Hon’ble Apex Courts the
application U/s. 34(3) of the Act is liable to be dismissed as the
objection petition U/s. 34 of the Act has been filed much after the
statutory period as provided in the Act.
N. That the award passed by the Hon’ble Arbitral Tribunal is a well-
reasoned and speaking award and has deals with all the issues
hence, the applicant has no mouth to say that the award as
pronounced by the competent Arbitral Tribunal is erred or bad
in the eyes of law and it is respectfully submitted that the
impugned award do not warrant any interference from the
Hon’ble Court. It is imperative to mention that despite being
served with the award by the competent tribunal the petitioner
did not file any objections as mandated and required under the
provisions of Arbitration and Conciliation Act, 1996, within the
statutory period as prescribed in the Act and since Section 5 of
the Limitation Act is not applicable to Arbitration and
Conciliation Act, 1996, thereby making the statutory period as
sacrosanct. Since, no objections have been filed within the
prescribed period; hence the award has attained finality and has
become enforceable.”
“7.4 In Para no. 2 of the reply on merits in reply dated 14.08.2023; the
following portion of the said para may kindly be permitted to be
amended by way of an addition and substitution of pleadings, as
under:
Unamended Para no. 2 of the reply on merits in reply dated
14.08.2023;
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[15]
2. That the contents of paragraph no. 2 of the application under reply
need no reply but nothing shall be construed as admission for
and on behalf of the respondent.
PROPOSED AMENDMENT
In paragraph no. 2 of the reply on merits in the reply dated 14.08.2023,
the following lines be added at the end of the paragraph i.e.,
“2. ………. The award passed by the Hon’ble Arbitral Tribunal is a
well-reasoned and speaking award and deals with all the issues
hence, the applicant has no mouth to say that the award as
pronounced by the competent Arbitral Tribunal is erred or bad in
the eyes of law and it is respectfully submitted that the impugned
award do not warrants any interference from the Hon’ble Court. It
is imperative to mention that despite being served with the award
by the competent tribunal as early as 20.02.2023 the petitioner did
not file any objections as mandated and required under the
provisions of Arbitration and Conciliation Act, 1996, within the
statutory period as prescribed in the Act and since Section 5 of
the Limitation Act is not applicable to Arbitration and Conciliation
Act, 1996, thereby making the statutory period as sacrosanct.
Since, no objections have been filed within the prescribed period;
hence the award has attained finality and has become
enforceable.”
“7.5 In Para no. 3 of the reply on merits in reply dated 14.08.2023; the
following portion of the said para may kindly be permitted to be
amended by way of an addition and substitution of pleadings, as
under:
PROPOSED AMENDMENT
In paragraph no. 3 of the reply on merits in the reply dated
14.08.2023, the following lines be added at the end of the paragraph
i.e.,
“………It is further wrong and incorrect to say hence vehemently
denied that the present accompanying Arbitration Petition was
ready to be filed on 10.7.2023 or that due to summer vacation of the
Subordinate Civil Courts in Manipur starting from 10.7.2023 till
15.7.2023, the same could not be filed during the said period till
today, as alleged. It is further wrong and incorrect to say hence
vehemently denied that the accompanying Arbitration Petition is
filed today i.e., 17.7.2023, immediately on the reopening of this
Hon’ble Court, after Summer Vacation holiday or that without any
delay or that the accompanying Arbitration Petition has been filed
within the time stipulated in proviso to Section 34(3) of the
Arbitration and Conciliation Act, 1996, as alleged. It is respectfully
submitted that it is now the settled principle of law that the intent
and purpose of Section 31(5) of the Act is to make the party aware
of the passing of the award and the non-receipt of the physical
signed copy of the award is of no significance as it has come to the
knowledge of the parties that the award has been passed and in the
present case the copy of the arbitral award has been served by the
Ld. Arbitral Tribunal by way of an email on 20.02.2023. Therefore,CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[16]
the date on which the parties are put to the knowledge of the award
and its content, which in the present case is on 20.02.2023 by way
of an e-mail of AT, then that would be the date of effective service,
as per settled proposition of law, i.e., 20.02.2023 would be the date
for the purpose of calculation of statutory period of filing Section 34
objection to the Award. Hence, in the present scenario and settled
proposition of law the period to be computed is to be from
20.02.2023 and admittedly the objection under section 34 of the Act
has been filed on 17.07.2023 which is hopelessly time barred and
cannot be considered to be proper and within limitation as
prescribed under law. The contents of SUPRA paragraphs may
kindly be read as part and parcel of the present paragraph under
reply as the contents of the same have not been reported herein for
the sake of brevity and to avoid repetition.”
(b) Judl. Misc. Case No. 38 of 2024 (Ref:- Judl. Misc. Case No.
37 of 2023) with a prayer for allowing the respondent to file the
following two documents:-
(i) the screen shots taken of random pages of the attachment
which was attached with the e-mail dated 20-02-2023 as
signed by the sole arbitrator which was none other than the
signed copy of the Arbitral Award dated 20-02-2023; and
(ii) the print out attachment of e-mail dated 20-02-2023, i.e.,
the signed Arbitral Award dated 20-02-2023.
[13] Judl. Misc. Case No. 38 of 2024 was allowed by the learned
District Judge, Imphal West, by an order dated 25-07-2024. Judl. Misc.
Case No. 32 of 2024 was also allowed by the learned District Judge,
Imphal West, by passing a separate order dated 25-07-2024 subject to
payment of cost of Rs. 10,000/- with a direction to file a new recast reply
after incorporating the proposed amendments. The said order is being
impugned herein. The operative portion of the observations and findings
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[17]
given by the learned District Judge, Imphal West, in the impugned order
are reproduced hereunder for ready reference:-
“4. One of the issues upon which the fate of the application of petitioner
filed under S, 34(3) of the Arbitration and Conciliation Act, 1996 hinges
is what is the date of service of the arbitral award upon the petitioner.
The main purpose of this amendment application is also to incorporate
facts as regards the question when and how the copy of the arbitral
award was first sent. It will, therefore, be necessary to first take note of
the respective versions of the parties on this issue as per their
pleadings. The following paragraph of the recast application of the
petitioner explains his side of the story on this point:
1. That, the Arbitral Award dated 20.02.2023 was sent by the Arbitrator
on 10.03.2023 through DTDC Courier, Nehru Place, Delhi, to Shri S.
Jasobanta Singh, Advocate who represented the Applicant in the
Arbitration Proceeding. The said Counsel is said to have received
the Award on 13.03.2023 and vide letter dated 14.03.2023, the said
Award was delivered to and received by the Applicant on 05.04.2023
vide R.R. no. 29/CE of Receipt Register of Chief Engineer Office,
PWD, Manipur. Hence, the extendable period of 30 days after the
expiry of 3 months from the receipt of Arbitral Award expires on
04.08.2023.”
“5. The position taken by the respondent against this claim of the petitioner
can be gathered from paragraph J at page 6 and paragraph 3 at page 7
of its reply dt. 14.08.2023 which are reproduced as under:
J. That, the application is further not maintainable and liable to be
rejected as applicants counsel was apprised about the passing of the
award on 20.02.2023 and the signed copy of the award was also
served upon the applicant, meaning thereby that the objection as filed
by the applicant is beyond the statutory period as prescribed under
the Act, hence liable to be rejected/dismissed on this ground itself.
3. That the contents of paragraph no. 3 of the application under reply to
the extent that the award was sent through post is not denied but it
is denied that the same was served upon the applicant on 14.03.2023
as alleged. Moreover, the counsel for the applicant was informed
about the award on the date of passing of the award itself. The period
is three months as prescribed under the Act and not 120 days as
stated by the applicant while computing the period of limitation for
filing the objection petition. The respondent reserves its right to
address all the points during the course of arguments. It is further
wrong and incorrect to say that the Arbitration Petitioner was ready
to be filed on 10.07.2023, as alleged or that it is because of the
holidays of the subordinate Civil Courts in Manipur starting from
10.07.2023 till 15.07.2023, the same could not be filed during the said
period till today, as alleged….”
“6. The present amendment application also seeks to incorporate many
other averments. However, much of the proposed additions are in nature
of arguments and reiterated the contention that the application of the
petitioner is time barred and the delay cannot be condoned in law. ToCRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[18]
give a brief description of the proposed amendment, it seeks to add
additional lines to existing paragraph no. E and J and also new
paragraphs L, M and N to its reply dated 14.08.2023 as part of its
preliminary submissions. Further, after paragraph no.2 and paragraph
no.3 of the reply on merits, additional lines are sought to be added.”
“7. As stated earlier, the most crucial issue is the date of service of the
award on the petitioner determination of which is necessary in order
to answer the question of limitation. In this respect, the most
consequential part of the proposed amendment will be the following
paragraph which is sought to be added:
L. EFFECTIVE DATE OF SERVICE
That the respondent respectfully submits that the Hon’ble Arbitral
Tribunal vide e-mail dated 20.02.2023 had sent the signed scanned
copy of the award to both the petitioner and the respondent on their
e-mail id’s and as per the settled catena of judgment it is now to be
deemed to be an effective date of service of the award for the purpose
of computation of the period as stipulated U/s. 34(3) of the Act, hence
for all purposes the entire controversy as created by the petitioner to
be the date of effective service to be 14.03.2023 or 05.04.2023 is of no
consequence and significance in view of the settled principle of law
that the intent and purpose of Section 31(5) of the Act is to make the
party aware of the passing of the award and the non-receipt of the
physical signed copy of the award is of no significance as it has come
to the knowledge of the parties that the award has been passed and
the copy of the award has been served by way of e-mail. Therefore,
the date on which the parties are put to the knowledge of the award
and its content, which in the present case is on 20.02.2023 by way of
an e-mail of AT, then that would be the date of effective service i.e.,
20.02.2023 for the purpose of calculation of statutory period of filing
Section 34 objection to the Award. Hence, in the present scenario and
settled proposition of law the period to be computed is from
20.02.2023 and admittedly the objection under section 34 of the Act
has been filed on 17.07.2023 which is hopelessly time barred and
cannot be considered to be proper and within limitation as prescribed
under law.
The respondent submits that the Hon’ble Tribunal (AT) had sent the
signed copy of the Award dated 20.02.2023 by way of an e-mail dated
20.02.2023 itself which fact could clearly be established from the
attachment to the e-mail. The respondent seeks liberty to place on
record the screen shots of the e-mail and also random pages of the
attachment i.e., the signed copy of the award dated 20.02.2023 which
would clearly show that the copy as sent by e-mail by the AT was a
signed copy of the Award. The said screen shots are attached as
Annexure R-1. The respondent also seeks to place on record the entire
copy of the award dated 20.02.2023 which was received through e-mail
dated 20.02.2023 for ready and kind perusal of the Hon’ble Court as
Annexure R-2. The respondent submits that the respondent is ready
and willing to share the e-mail and the attachment with the court on the
official e-mail id of the Court or if permitted to show the e-mail and the
attachment in the court. The petitioner now in view of the settled
proposition of law has no mouth to say that the objection as filed under
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[19]
Section 34 of the Act is filed within the statutory period as provided
under the Act.”
“15. I have given my consideration to rival contentions and submissions. The
proposed amendment is seeking to incorporate an important assertion
to the effect the signed scanned copy of the Arbitral Award was sent to
both the parties by e-mail on 20.02.2023. At the outset, it may be
observed that this averment is vitally relevant to the question as to when
the petitioner can be said to have first received copy of the award and
what should be the starting point of the period of limitation as provided
under S. 34(3) of the Arbitration & Conciliation Act.”
“16. It is a fact that the respondent in its reply dated 14.08.2023 does not
mention of any communication of the copy of the arbitral award by
e-mail on 20.02.2023. However, there is also no statement or fact averred
in the said reply dt. 14.08.2023 that would make incorporation of these
new facts inconsistent with the original stance taken by the respondent.
To admit that the award was sent through post and at the same time to
say that scanned copy of the award was also sent on 20.02.2023 are not
incompatible statements. Both can be true, i.e., copy could have been
sent both by e-mail as well as by post. It is not a situation where only
one of the two can possibly be true.”
“17. There is no withdrawal of any admission involved in seeking the
changes through this amendment. The proposed amendment is not
seeking to delete or omit its admission that the award was sent through
post to petitioner. The said statement will continue to remain even after
the amendment. But, there is no admission by the respondent in the first
place anywhere in its pleading that the copy of the award was served on
the petitioner only on 14.03.2023. Para No.3 of the reply may be
reproduced to highlight this fact –
“3. That the contents of paragraph no.3 of the application under reply to
the extent that the award was sent through post is not denied but it
is denied that the same was served upon the applicant on 14.03.2023
as alleged, moreover, the counsel for the applicant was informed
about the award on the date of passing of the award itself…”
“18. The fact that sending of the award by post has been admitted cannot
lead to the inference that the respondent has admittedly ruled out any
other possible mode of communication of the award.”
“19. The service of the award through e-mail is a very relevant fact. Whether
service through e-mail is enough to set the period of limitation running
is a question which has to be adjudicated after hearing on merit the
application filed under S.34(3) of the Act. But there is nothing, even
remotely, to suggest any prejudice will be caused to the petitioner if the
proposed amendment is permitted. Therefore, despite the fact that the
proposed amendment is much more than consequential amendment to
the recast application, it ought to be allowed.”
“20. The proviso to order 6 rule 17 CPC provides that no application for
amendment shall be allowed after trial has commenced, unless the court
comes to the conclusion that in spite of due diligence, the party could
not have raised the matter before commencement of the trial. Perusal of
record shows that on 17.08.2023, the Rejoinder Reply of the petitioner toCRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[20]
the reply of the respondent in Judl. Misc Case No. 37 of 2023 was filed.
The proceeding of the said day mentioned that both the Ld. Counsels
were heard. The Court fixed 30.08.2023 for filing of written arguments of
the parties. However, on 07.10.2023, two Judl. Misc cases 45 of 2023 and
58 of 2023 were filed by the petitioner. Vide order dt. 05.02.2024 passed
in Judl. Mise No. 45 of 2023, the application in Judl. Case No. 37 of 2023
was allowed to be amended. So far, after the incorporation was made as
permitted by said order dt. 05.02.2024 passed in Judl. Misc No. 45 of
2023, the hearing on the merit of the application filed under proviso to
S.34(4) of the Act has not yet commenced. In another word, though it
seems from record that on 17.08.2023 hearing on the merit on the Judl.
Misc Case No. 37 of 2023 had taken place, this was followed by
amendment of pleading of the petitioner. Thereafter, hearing on merit
after pleadings of both parties are completed is yet to commence.”
“21. It is worth noting that order dt. 08.01.2024 passed in Judl. Misc Case No.
45 of 2023 while allowing the amendment of the application of the
petitioner has made certain observations on the question if there is bar
in entertaining it. The said order observations at para. no. 3.2, 3.3 and 4
specifically examine this question by making reference to the stage of
proceeding. The Court observed that the application was filed before
conclusion of arguments or hearing and there is no bar in entertaining
it as per law. Principle of Parity demands that similar leniency may be
accorded to the respondent also while considering the present
application.
This application is allowed subject to cost of Rs.10,000/- to be paid
to the opposite party.
A new recast reply shall be filed after incorporating the proposed
amendment.
Disposed of.”
[14] Judl. Misc. Case No. 26 of 2024 filed by the petitioner for
rejecting the new reply filed by the respondent was also disposed of by
the learned District Judge, Imphal West, by an order dated 25-07-2024.
The said order stated that in view of the disposal of the Judl. Misc. Case
No. 32 of 2024 whereby the reply of the respondent was permitted to be
amended, the present application has become infructuous and the court
also clarified that it will not take on record the reply dated 02-03-2024
filed by the respondent.
CRP(CRP Art. 227) No. 36 of 2024 Contd.../- [21] [15] Mr. M. Rarry, learned senior counsel appearing for the
petitioner submitted at length both on fact and law to set up a number of
grounds in challenging the impugned order. It has been strenuously
submitted by the learned senior counsel that it is an undisputed fact on
record that the plea of communication of Arbitral Award by way of e-mail,
as now proposed to be raised, in the guise of a consequential
amendment, by the respondent is nothing but an attempt to discard and
shift away from the original plea of the respondent about the disputed
date of delivery of award by post. It has also been stated that the
proposed amendments of the respondent now seeks to introduce an
entirely new and different case, by raising a new plea of communication
by e-mail, after having sense the inevitable outcome of the condonation
application filed by the petitioner being decided in favour of the petitioner
after the amendment of limited correction in the date of delivery of award
by post was allowed. The learned senior counsel also submitted that if
the proposed amendment is allowed, it will irretrievably prejudice the
petitioner as far as, adjudication of the condonation application is
concerned.
[16] Relying on the judgment rendered by the Hon’ble Supreme
Court in the case of “Gurdial Singh & ors. Vs. Raj Kumar Aneja &
ors.” reported in (2003) 2 SCC 445, the learned senior counsel
submitted that the additional pleadings allowed to be made by the
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[22]
opposite party, subsequent to two amendments of pleadings being
allowed by court, should be confined to answer the amendment made
by other party and that when consequential amendment is prayed for,
the opposite party cannot be permitted to add a new plea or introduce
an entirely different case, which will cause prejudice to the petitioner by
the said opposite party. The learned senior counsel submitted that while
passing the impugned order, the learned District Judge has totally failed
to consider and apply the said legal principle and as such, the impugned
order is liable to be quashed and set aside as being illegal and perverse
order.
[17] The learned senior counsel submitted that the proposed
amendment of para 2 of the reply filed by the respondent in connection
with the condonation application is nothing but a withdrawal of a clear
admission earlier made by the respondent and allowing the respondent
to raise and introduce a totally contradictory new and different case and
as such, the said proposed amendment is ultra vires the principle of law
laid down by the Hon’ble Apex Court and accordingly, the same is liable
to be rejected.
[18] The learned senior counsel lastly submitted that the new plea
of communication of the Arbitral Award by e-mail as proposed in the
amendment application is nothing but an afterthought attempt by the
respondent and if allowed, it will completely and irretrievably prejudice
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[23]
the petitioner, inasmuch as, a meritorious matter of the petitioner
filed under Section 34 of the Arbitration and Conciliation Act, 1996
challenging an illegal award may be defeated and that the respondent’s
entire mala fide attempt from the very beginning is to ensure that the said
arbitration petition is not allowed to be heard on its merit. In support of
his contentions, the learned senior counsel cited the following case
laws:-
(a) (2002) 2 SCC 445 “Gurdial Singh & ors. Vs. Raj Kumar
Aneja & ors.” wherein the Hon’ble Apex Court held as under:-
“13. Before parting we feel inclined to make certain observations about
the loose practice prevalent in the subordinate courts in
entertaining and dealing with applications for amendment of
pleadings. It is a disturbing feature and, if such practice continues,
it is likely to thwart the course of justice. The application moved by
the occupants for amendment in their written statements filed
earlier did not specifically set out which portions of the original
pleadings were sought to be deleted and what were the averments
which were sought to be added or substituted in the original
pleadings. What the amendment applicants did was to give in their
applications a vague idea of the nature of the intended amendment
and then annex a new written statement with the application to be
substituted in place of the original written statement. Such a course
is strange and unknown to the procedure of amendment of
pleadings. A pleading, once filed, is a part of the record of the court
and cannot be touched, modified, substituted, amended or
withdrawn except by the leave of the court. Order 8 Rule 9 CPC
prohibits any pleadings subsequent to the written statement of a
defendant being filed other than by way of defence to a set-off or
counterclaim except by the leave of the court and upon such terms
as the court thinks fit. Section 153 CPC entitled “General power to
amend” provides that the court may at any time, and on such terms
as to costs or otherwise as it may think fit, amend any defect or error
in any proceeding in a suit; and all necessary amendments shall be
made for the purpose of determining the real question or issue
raised by or depending on such proceeding. Order 6 Rule 17 CPC
confers a discretionary jurisdiction on the court exercisable at any
stage of the proceedings to allow either party to alter or amend his
pleadings in such manner and on such terms as may be just. The
Rule goes on to provide that all such amendments shall be made as
may be necessary for the purpose of determining the real questions
in controversy between the parties. Unless and until the court is told
how and in what manner the pleading originally submitted to theCRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[24]
court is proposed to be altered or amended, the court cannot
effectively exercise its power to permit amendment. An amendment
may involve withdrawal of an admission previously made, may
attempt to introduce a plea or claim barred by limitation, or, may be
so devised as to deprive the opposite party of a valuable right
accrued to him by lapse of time and so on. It is, therefore, necessary
for an amendment applicant to set out specifically in his application,
seeking leave of the court for amendment in the pleading, as to what
is proposed to be omitted from or altered or substituted in or added
to the original pleading.”
“14. In Pleadings: Principles and Practice by Jacob and Goldrein (1990
Edn.) it is stated that a party served with a pleading which is
subsequently amended may not amend his own pleading and may
rely on the rule of implied joinder of issue but
“if he does amend his own pleading, he is not entitled to
introduce any amendment that he chooses. He can only make
such amendments as are consequential upon the amendments
made by the opposite party” (at p. 193).
* * *
“In all cases except where amendment is allowed without leave,
the party seeking or requiring the amendment of any pleading
must apply to the court for leave or order to amend. The
proposed amendments should be specified either by stating
them, if short, in the body of the summons, notice or other
application or by referring to them therein. In practice leave to
amend is given only when and to the extent that the proposed
amendments have been properly and exactly formulated, and in
such case, the order giving leave to amend binds the party
making the amendment and he cannot amend generally.” (at pp.
206-07).”
“15. The court may allow or refuse the prayer for amendment in sound
exercise of its discretionary jurisdiction. It would, therefore, be
better if the reasons persuading the applicant to seek an
amendment in the pleadings as also the grounds explaining the
delay, if there be any, in seeking the amendment, are stated in the
application so that the opposite party has an opportunity of meeting
such grounds and none is taken by surprise at the hearing on the
application.”
“16. How an amendment allowed by the court is to be effectuated in the
pleadings? English practice in this regard is stated in Halsbury’s
Laws of England (4th Edn., Vol. 36, para 63, at pp. 48-49) as under:
“63. Mode of amendment.–A pleading may be amended by written
alterations in a copy of the document which has been served,
and by additions on paper to be interleaved with it if necessary.
However, where the amendments are so numerous or of such
nature or length that to make written alterations of the
document so as to give effect to them would make it difficult or
inconvenient to read, a fresh document must be prepared
incorporating the amendments. If such extensive amendment
is required to a writ it must be reissued. An amended writ orCRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[25]
pleading must be indorsed with a statement that it has been
amended, specifying the date on which it was amended, the
name of the Judge, master or registrar by whom any order
authorizing the amendment was made and the date of the
order; or, if no such order was made, the number of the rule in
pursuance of which the amendment was made. The practice is
to indicate any amendment in a different ink or type from the
original, and the colour of the first amendment is usually red.”
“17. Stone and Iyer in Pleadings (2nd Edn.) state the practice in regard
to incorporating amendments in pleading as under (at p. 165):
“In England it often happens that before the case comes into court
and while still the Master is exercising the powers conferred by a
summons for directions, counsel seek leave to amend not once
but several times. The practice is to amend first in red and make
later amendments in different coloured inks. A practice which we
think might, with advantage, be followed would be to place before
the Court, as one places before a Master in England, the
proposed amendments. These may or may not be allowed as
proposed, or may be altered before leave is given. Leave having
been given, a new plaint or written statement showing the old
pleading and with the amendments written or typed in might then
be prepared and taken on the file of the Court. In cases where the
addition is substantial it may be necessary to deliver a copy of
the pleading as amended. If the old matter is scored out, it must
be done in such a manner as to show the original pleading and
the alteration. Under Order VI Rule 7 CPC, a party has apparently
to amend his pleading while it is in court. Under the old Code it
was returned to him for amendment. The Court may even now
have power to return it if it is necessary to do so. Where leave to
amend is asked for, the actual amendment must be formulated
before leave is given. If it is proposed to apply for amendment, it
is desirable to inform the other side so that there can be no
question of surprise and no adjournment may be necessary on
allowing the amendment. Pursuant to the leave granted the
proceedings should be amended before the judgment is
pronounced.”
“18. Thus, once a prayer for amendment is allowed the original pleading
should incorporate the changes in a different ink or an amended
pleading may be filed wherein with the use of a highlighter or by
underlining in red the changes made may be distinctly shown. The
amendments will be incorporated in the pleading by the party with
the leave of the court and within the time limited for that purpose or
else within fourteen days as provided by Order 6 Rule 18 CPC. The
court or an officer authorized by the court in this behalf, may
compare the original and the amended pleading in the light of the
contents of the amendment application and the order of the court
permitting the same and certify whether the amended pleading
conforms to the order of the court permitting the amendment. Such
practice accords with the provisions of the Code of Civil Procedure
and also preserves the sanctity of record of the court. It is also
conducive to the ends of justice inasmuch as by a bare look at theCRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[26]
amended pleading the court would be able to appreciate the shift in
stand, if any, between the original pleading and the amended
pleading. These advantages are in addition to convenience and
achieving maintenance of discipline by the parties before the court.
Amendments and consequential amendments, allowed by the court
and incorporated in the original pleadings, would enable only one
set of pleadings being available on record and that would avoid
confusion and delay at the trial. Most of the High Courts in the
country follow this practice, if necessary by making provisions in
the Rules framed by the High Court for governing the subordinate
courts and their original side, if there be one. In fact, in the State of
Punjab and Haryana and the Union Territory of Chandigarh, there is
a local amendment whereby the text of Rule 17 in Order 6 CPC has
been renumbered as sub-rule (1) and the following sub-rule (2)
added:
“17. (2) Every application for amendments shall be in writing and
shall state the specific amendments which are sought to be
made indicating the words or paragraphs to be added, omitted
or substituted in the original pleading.”
The abovesaid Rule appears to have been completely
overlooked while moving the application for amendment. It is
expected that the courts in Punjab, Haryana and Chandigarh
would follow the Rule in letter and spirit.”
“19. When one of the parties has been permitted to amend his pleading,
an opportunity has to be given to the opposite party to amend his
pleading. The opposite party shall also have to make an application
under Order 6 Rule 17 CPC which, of course, would ordinarily and
liberally be allowed. Such amendments are known as consequential
amendments. The phrase “consequential amendment” finds
mention in the decision of this Court in Bikram Singh v. Ram Babo1.
The expression is judicially recognized. While granting leave to
amend a pleading by way of consequential amendment the court
shall see that the plea sought to be introduced is by way of an
answer to the plea previously permitted to be incorporated by way
of an amendment by the opposite party. A new plea cannot be
permitted to be added in the garb of a consequential amendment,
though it can be applied by way of an independent or primary
amendment.”
“20. Some of the High Courts permit, as a matter of practice, an
additional pleading, by way of response to the amendment made in
the pleadings by opposite party, being filed with the leave of the
court. Where it is permissible to do so, care has to be taken to see
that the additional pleading is confined to an answer to the
amendment made by the opposite party and is not misused for the
purpose of setting up altogether new pleas springing a surprise on
the opposite party and the court. A reference to Order 6 Rule 7 CPC
is apposite which provides that no pleading shall, except by way of
amendment, raise any new ground of claim or contain any allegation
of fact inconsistent with the previous pleadings of the party
pleading the same.”
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[27]
(b) (1976) 4 SCC 320 “M/S Modi Spinning and Weaving Mills
Co. Ltd. & anr. Vs. M/S Ladha Ram & Co.” wherein the
Hon’ble Apex Court held as under:-
“10. It is true that inconsistent pleas can be made in pleadings but the
effect of substitution of paragraphs 25 and 26 is not making
inconsistent and alternative pleadings but it is seeking to displace
the plaintiff completely from the admissions made by the
defendants in the written statement. If such amendments are
allowed the plaintiff will be irretrievably prejudiced by being
denied the opportunity of extracting the admission from the
defendants. The High Court rightly rejected the application for
amendment and agreed with the trial Court.”
(c) (1998) 1 SCC 278 “Heeralal Vs. Kalyan Mal & ors.” wherein
the Hon’ble Apex Court held as under:-
“10. Consequently it must be held that when the amendment sought in
the written statement was of such a nature as to displace the
plaintiff’s case it could not be allowed as ruled by a three-member
Bench of this Court. This aspect was unfortunately not considered
by the latter Bench of two learned Judges and to the extent to which
the latter decision took a contrary view qua such admission in
written statement, it must be held that it was per incuriam being
rendered without being given an opportunity to consider the binding
decision of a three-member Bench of this Court taking a
diametrically opposite view.”
(d) (2008) 5 SCC 117 “Chander Kanta Bansal Vs. Rajinder
Singh Anand” wherein the Hon’ble Apex Court held as
under:-
“11. In order to find out whether the application of the defendant under
Order 6 Rule 17 for amendment of written statement is bona fide
and sustainable at this stage or not, it is useful to refer to the
relevant provisions of CPC. Order 6 Rule 17 reads thus:
“17. Amendment of pleadings.–The court may at any stage of the
proceedings allow either party to alter or amend his pleading
in such manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the
purpose of determining the real questions in controversy
between the parties:
Provided that no application for amendment shall be allowed
after the trial has commenced, unless the Court comes to the
conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial.”
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[28]
This Rule was omitted by the Code of Civil Procedure (Amendment)
Act, 1999. However, before the enforcement of the Code of Civil
Procedure (Amendment) Act, 1999, the original rule was
substituted and restored with an additional proviso. The proviso
limits the power to allow amendment after the commencement of
trial but grants discretion to the court to allow amendment if it feels
that the party could not have raised the matter before the
commencement of trial in spite of due diligence. It is true that the
power to allow amendment should be liberally exercised. The
liberal principles which guide the exercise of discretion in allowing
the amendment are that multiplicity of proceedings should be
avoided, that amendments which do not totally alter the character
of an action should be granted, while care should be taken to see
that injustice and prejudice of an irremediable character are not
inflicted upon the opposite party under pretence of amendment.”
“19. As observed earlier, the suit filed in the year 1986 is for a right of
passage between two portions of the same property dragged
for a period of 21 years. In spite of long delay, if acceptable
material/materials placed before the court show that the delay was
beyond their control or diligence, it would be possible for the court
to consider the same by compensating the other side by awarding
costs. As pointed out earlier, when she gave evidence as DW 1,
there was no whisper about the written document/partition between
the parties. On the other hand, she asserted that partition was oral.
Now by filing the said application, she wants to retract what she
pleaded in the written statement, undoubtedly it would deprive the
claim of the plaintiff. We are also satisfied that she failed to
substantiate inordinate delay in filing the application that too after
closing of evidence and arguments. All these aspects have been
considered by the High Court. We do not find any ground for
interference in the order of the High Court, on the other hand, we
are in entire agreement with the same.”
(e) (2009) 10 SCC 84 “Revajeetu Builders and Developers Vs.
Narayanaswamy and Sons & ors.” wherein the Hon’ble
Apex Court held as under:-
“58. The first condition which must be satisfied before the amendment
can be allowed by the court is whether such amendment is
necessary for the determination of the real question in controversy.
If that condition is not satisfied, the amendment cannot be allowed.
This is the basic test which should govern the courts’ discretion in
grant or refusal of the amendment.”
No prejudice or injustice to other party
“59. The other important condition which should govern the discretion
of the court is the potentiality of prejudice or injustice which is
likely to be caused to the other side. Ordinarily, if the other side is
compensated by costs, then there is no injustice but in practice
hardly any court grants actual costs to the opposite side. The
courts have very wide discretion in the matter of amendment of
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[29]
pleadings but court’s powers must be exercised judiciously and
with great care.”
“60. In Ganga Bai case this Court has rightly observed: (SCC p. 399,
para 22)
“22. … The power to allow an amendment is undoubtedly wide and
may at any stage be appropriately exercised in the interest of
justice, the law of limitation notwithstanding. But the exercise
of such far-reaching discretionary powers is governed by
judicial considerations and wider the discretion, greater ought
to be the care and circumspection on the part of the court.”
Costs
“61. The courts have consistently laid down that for unnecessary delay
and inconvenience, the opposite party must be compensated with
costs. The imposition of costs is an important judicial exercise
particularly when the courts deal with the cases of amendment. The
costs cannot and should not be imposed arbitrarily. In our view,
the following parameters must be taken into consideration while
imposing the costs. These factors are illustrative in nature and not
exhaustive:
(i) At what stage the amendment was sought.
(ii) While imposing the costs, it should be taken into consideration
whether the amendment has been sought at a pre-trial or post-
trial stage.
(iii) The financial benefit derived by one party at the cost of other
party should be properly calculated in terms of money and the
costs be awarded accordingly.
(iv) The imposition of costs should not be symbolic but realistic.
(v) The delay and inconvenience caused to the opposite side must
be clearly evaluated in terms of additional and extra court
hearings compelling the opposite party to bear the extra costs.
(vi) In case of appeal to higher courts, the victim of the amendment
is compelled to bear considerable additional costs.
All these aspects must be carefully taken into consideration while
awarding the costs.”
“62. The purpose of imposing costs is to:
(a) discourage mala fide amendments designed to delay the legal
proceedings;
(b) compensate the other party for the delay and the inconvenience
caused;
(c) compensate the other party for avoidable expenses on the
litigation which had to be incurred by the opposite party for
opposing the amendment; and
(d) to send a clear message that the parties have to be careful while
drafting the original pleadings.”
Factors to be taken into consideration while dealing with
applications for amendments
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[30]
“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.”
“64. The decision on an application made under Order 6 Rule 17 is a
very serious judicial exercise and the said exercise should never
be undertaken in a casual manner. We can conclude our
discussion by observing that while deciding applications for
amendments the courts must not refuse bona fide, legitimate,
honest and necessary amendments and should never permit mala
fide, worthless and/or dishonest amendments.”
“65. When we apply these parameters to the present case, then the
application for amendment deserves to be dismissed with costs of
Rs. 1,00,000 (Rupees one lakh) because the respondents were
compelled to oppose the amendment application before different
courts. This appeal being devoid of any merit is accordingly
dismissed with costs.”
(f) (2013) 9 SCC 485 “Mashyak Grihnirman Sahakari Sanstha
Maryadit Vs. Usman Habib Dhuka & ors.” wherein the
Hon’ble Apex Court held as under:-
“7. We have heard the learned counsel appearing for both sides and
have minutely gone through the pleadings of the parties and the
amendment petition. From a perusal of the amendment petition, it
reveals that the main ground for seeking relief is that Respondents
1 to 3-plaintiffs were allegedly not aware of the conveyance deed
dated 8-2-1989. For better appreciation, Para 32(b) of the
amendment petition is reproduced hereinbelow:
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[31]
“The plaintiffs say that all documents were applied under RTI
and some of the same were received by the plaintiffs on 2-3-2009.
The plaintiffs further say that prior thereto the plaintiffs were
unaware of any such conveyance dated 8-2-1989. The plaintiffs
further say that for the first time after going through the certified
copies received under the RTI Act the plaintiffs came to know
about such manipulation and forgery in the registered
conveyance dated 8-2-1989. The plaintiffs further say that the
signatures of the deceased Jamal Gani Khorajia have been got
forged and documents executed and registered and a signature
got manipulated through some fake persons, who must have
impersonated deceased Mr Jamal Gani Khorajia. The plaintiffs
say that it is the matter of common sense that when Jamal Gani
Khorajia had expired on 14-8-1984 then how could he execute
the said conveyance dated 8-2-1989 after 5 years from the date
of his death.”
Prima facie the aforesaid statement made in the amendment petition
is not correct.”
“8. Indisputably, Respondent 1-plaintiff was the office-bearer of the
Society at the relevant time and by resolution taken by the Society
Respondent 1 was authorised to complete the transaction. Hence, it
is incorrect to allege that Respondent 1-plaintiff was not aware
about the transaction of 1989. Moreover, before the institution of the
suit in the year 2010, the plaintiffs allegedly came to know about the
conveyance deed dated 8-2-1989, sometime in the year 2009, but
relief was not sought for in the plaint which was filed much later i.e.
14-10-2010. The High Court has not considered these undisputed
facts and passed the impugned order on the general principles of
amendment as contained in Order 6 Rule 17 of the Code of Civil
Procedure. Hence we do not find any ground for allowing the
amendment sought for by the plaintiffs which was not only a belated
one but was clearly an afterthought for the obvious purpose to avert
the inevitable consequence. The High Court has committed serious
error of law in setting aside the order passed by the trial court
whereby the amendment sought for was dismissed. The impugned
order1 of the High Court cannot be sustained in law.”
“9. For the aforesaid reasons, the appeal is allowed, the impugned
order1 passed by the High Court is set aside and the order passed
by the trial court is restored. No order as to costs.”
(g) (2019) 4 SCC 332 “M. Revanna Vs. Anjanamma” wherein
the Hon’ble Apex Court held as under:-
“7. Leave to amend may be refused if it introduces a totally different,
new and inconsistent case, or challenges the fundamental
character of the suit. The proviso to Order 6 Rule 17 CPC virtually
prevents an application for amendment of pleadings from being
allowed after the trial has commenced, unless the court comes to
the conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of the trial. TheCRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[32]
proviso, to an extent, curtails absolute discretion to allow
amendment at any stage. Therefore, the burden is on the person
who seeks an amendment after commencement of the trial to show
that in spite of due diligence, such an amendment could not have
been sought earlier. There cannot be any dispute that an
amendment cannot be claimed as a matter of right, and under all
circumstances. Though normally amendments are allowed in the
pleadings to avoid multiplicity of litigation, the court needs to take
into consideration whether the application for amendment is bona
fide or mala fide and whether the amendment causes such
prejudice to the other side which cannot be compensated
adequately in terms of money.”
“9. Having regard to the totality of the facts and circumstances of the
case, we are of the considered opinion that the application for
amendment of the plaint is not only belated but also not bona fide,
and if allowed, would change the nature and character of the suit.
If the application for amendment is allowed, the same would lead
to a travesty of justice, inasmuch as the Court would be allowing
Plaintiffs 1 to 5 to withdraw their admission made in the plaint that
the partition had not taken place earlier. Hence, to grant permission
for amendment of the plaint at this stage would cause serious
prejudice to Plaintiff 6 Respondent 1 herein.”
“10. Accordingly, the order of the High Court quashing the order of the
trial court dated 14-11-2008, which had allowed the application for
amendment of the plaint, is hereby confirmed. The appeal fails and
is hereby dismissed.”
[19] Mr. H.S. Paonam, learned senior counsel appearing for the
respondent submitted that in the arbitration proceedings, the sole
arbitrator passed a Procedural Order No. 1 dated 07-10-2021 in the
presence of the representatives of both the parties and the said order
was circulated by the sole arbitrator to both the parties and that the said
order was never challenged and the procedure as prescribed in the said
procedural order dated 07-10-2021 was duly followed during the entire
arbitration proceedings. At para IV of the said procedural order, the
mode of communication by the arbitrator is provided. The same are
reproduced hereunder for ready reference:-
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[33]
“Communications by the Arbitrator:-
1. All orders and communications shall be signed by the Arbitrator.
2. Communications by the Arbitrator to the parties and their counsel shall
be made by way of e-mail on the following e-addresses :-
For the Claimant:-
Mr. B. Sunil Shetty, Advocate,
385/386, Devam,
Amarjyothi Layout, Domlur,
Bangalore-560071, Karnataka
([email protected])Representatives of the Claimant:-
(i) Mr. P. Pratap
([email protected])
(ii) Mr. Vijayan R.P. Nair
[email protected])For the Respondent:-
Mr. Sagolsem Jasobanta Singh, Advocate
([email protected])Representatives of the Respondent:-
Mr. T. Rabindrakumar Singh, Chief Engineer (NH&NEC)
(Email- [email protected]
[email protected]
[email protected])
Communication on the addresses as above shall be treated as effective
communication to that side.”
[20] The learned senior counsel submitted that the learned sole
arbitrator passed the Arbitral Award on 20-02-2023 and on the same day
itself, the learned sole arbitrator sent an e-mail to the petitioner and its
counsel at their e-mail addresses mentioned above as well as to the
respondent. It has been submitted that both the parties and their
counsels were informed about the passing of the Arbitral Award dated
20-02-2023 and the signed scanned copy of the Arbitral Award was also
served upon the petitioner and the respondent as attachment to the
e-mail dated 20-02-2023, meaning thereby that the parties to the present
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[34]
petition were firstly put to notice about the passing of the Arbitral Award
and secondly, the signed scanned copy of the award was also provided
to the parties on 20-02-2023 itself.
[21] Mr. H.S. Paonam, learned senior counsel also submitted that
in the reply filed by the respondent in connection with condonation
application filed by the petitioner, a preliminary objection was raised
about the maintainability of the arbitration petition since it was filed
beyond the period of limitation of 120 days as prescribed under Section
34(3) of the Act. Additionally, the respondent also raised another
preliminary objection at para J of the reply filed by the respondent by
stating that the petitioner’s counsel was apprised about passing of the
Arbitral Award on 20-02-2023 and the signed copy of the award was also
served upon the petitioner and as such, the arbitration petition filed by
the petitioner is beyond the statutory period of limitation prescribed under
the Act, hence liable to be rejected/dismissed on that ground itself.
[22] The learned senior counsel further submitted that the most
crucial issue to be decided is the date on which the petitioner received a
signed copy of the Arbitral Award for the purpose of determining the
period of limitation for filing the arbitration petition as provided under
Section 34(3) of the Act. It has been submitted that the petitioner sought
for amendment of the said crucial date of receipt of the said Arbitral
Award by the petitioner from 14-03-2023 to 05-04-2023 in both the
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[35]
condonation application as well as the rejoinder filed by the petitioner
and such drastic changes were allowed by the learned District Judge. It
has also been submitted that the original stand taken by the respondent
about the date of serving a signed copy of the Arbitral Award to the
petitioner is on 20-02-2023 and in the amendments sought for by the
respondent, the said crucial date of service of the Arbitral Award to the
petitioner remain unchanged and the respondent only elaborated the
mode of service by inserting a few words that the same was served by
way of an e-mail from the Arbitral Tribunal.
The learned senior counsel strenuously submitted that by the
proposed amendments of the pleadings made in the reply filed by the
respondent, the respondent neither seeks to introduce an entirely new
and different case by raising new pleas nor does it attempt to discard
and shift away from the plea made by the respondent in its reply. The
learned senior counsel submitted that the objection raised by the
petitioner to the amendments is misconceived and without any merit and
as such, the same is liable to be rejected.
[23] It has been submitted by the learned senior counsel that
the petitioner, having twice, sought and obtained amendments to his
pleadings, thereby fundamentally altering their original position, cannot
justly contest the respondent’s analogous request. The respondent’s
application which merely sought to provide the detailed elucidations of
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[36]
existing contention without altering their core substance aligns with the
principle of parity and that granting such amendments to the respondent
is both equitable and necessary to maintain procedural fairness as it
embodies the fair application of the law and upholds the principle of
justice and equality before the court.
[24] The learned senior counsel further submitted that granting the
proposed amendments was crucial for the effective adjudication of the
central issue and it will significantly contribute to the fair administration
of justice and that the amendments are imperative for accurately
determining the date of proper service of the Arbitral Award and the
amendments does not alter the essence or nature of original pleadings
but seeks to address the pivotal question of the commencement date for
the limitation period prescribed under Section 34(3) of the Act. It has
been submitted that by permitting the amendments, the court will be in a
better position to deliver a just and informed judgment, ensuring that the
limitation period is correctly applied and justice is unequivocally served.
[25] The learned senior counsel cited the following case laws in
support of his contentions:-
(a) (2017) 8 SCC 567 “State of Bihar & ors. Vs. Modern Tent House
& anr.” wherein the Hon’ble Apex Court held as under:-
“8. We have perused the amendment application filed by the appellants.
We find that firstly, the proposed amendment is on facts and the
appellants in substance seek to elaborate the facts originally
pleaded in the written statement; secondly and in other words, it is
in the nature of amplification of the defence already taken; thirdly,CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[37]
it does not introduce any new defence compared to what has
originally been pleaded in the written statement; fourthly, if allowed,
it would neither result in changing the defence already taken nor
will result in withdrawing any kind of admission, if made in the
written statement; fifthly, there is no prejudice to the plaintiffs, if
such amendment is allowed because notwithstanding the defence
or/and the proposed amendment, the initial burden to prove the
case continues to remain on the plaintiffs; and lastly, since the trial
is not yet completed, it is in the interest of justice that the proposed
amendment of the defendants should have been allowed by the
courts below rather than to allow the defendants to raise such plea
at the appellate stage, if occasion so arises.”
“9. In view of the foregoing discussion, the appeal succeeds and is
allowed. The impugned order1 is set aside. The application (MA No.
28 of 2002) dated 7-4-2005 (Annexure P-4) filed by the appellants
under Order 6 Rule 17 of the Code is allowed. The appellants
(defendants) are permitted to amend their written statement and
incorporate the amendment as prayed for in their application.”
(b) 2022 SCC Online SC 1128 “Life Insurance Corporation of
India Vs. Sanjeev Builders Private Limited & anr.” wherein
the Hon’ble Apex Court held as under:-
“25. The principles applicable to the amendments of the plaint are
equally applicable to the amendments of the written statements.
The courts are more generous in allowing the amendment of the
written statement as question of prejudice is less likely to operate
in that event. The defendant has a right to take alternative plea in
defence which, however, is subject to an exception that by the
proposed amendment other side should not be subjected to
injustice and that any admission made in favour of the plaintiff is
not withdrawn. All amendments of the pleadings should be
allowed which are necessary for determination of the real
controversies in the suit provided the proposed amendment does
not alter or substitute a new cause of action on the basis of which
the original lis was raised or defence taken. Inconsistent and
contradictory allegations in negation to the admitted position of
facts or mutually destructive allegations of facts should not be
allowed to be incorporated by means of amendment to the
pleadings. The proposed amendment should not cause such
prejudice to the other side which cannot be compensated by
costs. No amendment should be allowed which amounts to or
relates in defeating a legal right accruing to the opposite party on
account of lapse of time. The delay in filing the application for
amendment of the pleadings should be properly compensated by
costs and error or mistake which, if not fraudulent, should
not be made a ground for rejecting the application for amendment
of plaint or written statement. (See South Konkan
Distilleries v. Prabhakar Gajanan Naik.)CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[38]
“26. But undoubtedly, every case and every application for amendment
has to be tested in the applicable facts and circumstances of the
case. As the proposed amendment of the pleadings amounts to
only a different or an additional approach to the same facts, this
Court has repeatedly laid down the principle that such an
amendment would be allowed even after the expiry of statutory
period of limitation.”
“27. In this behalf, in A.K. Gupta & Sons Ltd. v. Damodar Valley Corpn,
this Court held thus:
“7. … a new case or a new cause of action particularly when a suit
on the new case or cause of action is barred : Weldon v. Neal.
But it is also well recognised that where the amendment does
not constitute the addition of a new cause of action or raise a
different case, but amounts to no more than a different or
additional approach to the same facts, the amendment will be
allowed even after the expiry of the statutory period of
limitation:”
(c) 2023 SCC Online SC 256 “Ganesh Prasad Vs. Rajeshwari
Prasad & ors.” wherein the Hon’ble Apex Court held as
under:-
“33. There cannot be any doubt or dispute that the courts should be
liberal in allowing applications for leave to amend pleadings but it
is also well settled that the courts must bear in mind the statutory
limitations brought about by reason of the Code of Civil Procedure
(Amendment) Acts; the proviso appended to Order VI Rule 17
being one of them. In North Eastern Railway Administration,
Gorakhpur v. Bhagwan Das reported in (2008) 8 SCC 511, the law
has been laid down by this Court in the following terms: (SCC p.
517, para 16)
“16. Insofar as the principles which govern the question of granting
or disallowing amendments under Order 6 Rule 17 CPC (as it
stood at the relevant time) are concerned, these are also
well settled. Order 6 Rule 17 CPC postulates amendment of
pleadings at any stage of the proceedings. In Pirgonda
Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363]
which still holds the field, it was held that all amendments
ought to be allowed which satisfy the two conditions: (a) of
not working injustice to the other side, and (b) of being
necessary for the purpose of determining the real questions in
controversy between the parties. Amendments should be
refused only where the other party cannot be placed in the
same position as if the pleading had been originally correct,
but the amendment would cause him an injury which could
not be compensated in costs. (Also see Gajanan Jaikishan
Joshi v. Prabhakar Mohanlal Kalwar [(1990) 1 SCC 166].)”
“36. In one of the recent pronouncements of this Court, in the case
of Life Insurance Corporation of India v. Sanjeev Builders PrivateCRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[39]
Limited, Civil Appeal No. 5909 of 2022 dated 01.09.2022, the position
of law has been explained as under:
“70. ….. (ii) All amendments are to be allowed which are necessary
for determining the real question in controversy provided it
does not cause injustice or prejudice to the other side. This is
mandatory, as is apparent from the use of the word “shall”, in
the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper
adjudication of the controversy between the parties,
and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the
other side,
(b) by the amendment, the parties seeking amendment
does not seek to withdraw any clear admission
made by the party which confers a right on the
other side and
(c) the amendment does not raise a time barred claim,
resulting in divesting of the other side of a valuable
accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be
allowed unless
(i) by the amendment, a time barred claim is sought to
be introduced, in which case the fact that the claim
would be time barred becomes a relevant factor for
consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid
defence.
(v) In dealing with a prayer for amendment of
pleadings, the court should avoid a hypertechnical
approach, and is ordinarily required to be liberal
especially where the opposite party can be
compensated by costs.
(vi) Where the amendment would enable the court to
pin-pointedly consider the dispute and would aid in
rendering a more satisfactory decision, the prayer
for amendment should be allowed.
(vii) Where the amendment merely sought to introduce
an additional or a new approach without
introducing a time barred cause of action, the
amendment is liable to be allowed even after expiry
of limitation.
(viii) Amendment may be justifiably allowed where it is
intended to rectify the absence of material
particulars in the plaint.
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[40]
(ix) Delay in applying for amendment alone is not a
ground to disallow the prayer. Where the aspect of
delay is arguable, the prayer for amendment could
be allowed and the issue of limitation framed
separately for decision.
(x) Where the amendment changes the nature of the
suit or the cause of action, so as to set up an
entirely new case, foreign to the case set up in the
plaint, the amendment must be disallowed. Where,
however, the amendment sought is only with
respect to the relief in the plaint, and is predicated
on facts which are already pleaded in the plaint,
ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before
commencement of trial, the court is required to be
liberal in its approach. The court is required to bear
in mind the fact that the opposite party would have
a chance to meet the case set up in amendment. As
such, where the amendment does not result in
irreparable prejudice to the opposite party, or
divest the opposite party of an advantage which it
had secured as a result of an admission by the
party seeking amendment, the amendment is
required to be allowed. Equally, where the
amendment is necessary for the court to effectively
adjudicate on the main issues in controversy
between the parties, the amendment should be
allowed. (See Vijay Gupta v. Gagninder Kr.
Gandhi, 2022 SCC OnLine Del 1897)”
“37. Thus, the Plaintiffs and Defendant are entitled to amend the
plaint, written statement or file an additional written statement.
It is, however, subject to an exception that by the proposed
amendment, an opposite party should not be subject to
injustice and that any admission made in favour of the other
party is not but wrong. All amendments of the pleadings should
be allowed liberally which are necessary for determination of
the real controversies in the suit provided that the proposed
amendment does not alter or substitute a new cause of action
on the basis of which the original lis was raised or defence
taken.”
(d) (2018) 2 SCC 132 “Mohinder Kumar Mehra Vs. Roop Rani
Mehra & ors.” wherein the Hon’ble Apex Court held as under:-
“16. The judgment on which much reliance has been placed by the
learned counsel for the appellant is Rajesh Kumar Aggarwal v. K.K.
Modi. This Court had occasion to consider and interpret Order 6
Rule 17 CPC in paras 15 and 16, in which following has been held:
(SCC pp. 392-93)
“15. The object of the Rule is that the courts should try the merits
of the case that come before them and should, consequently,CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[41]
allow all amendments that may be necessary for determining
the real question in controversy between the parties provided
it does not cause injustice or prejudice to the other side.
16. Order 6 Rule 17 consists of two parts. Whereas the first part is
discretionary (may) and leaves it to the court to order
amendment of pleading. The second part is imperative (shall)
and enjoins the court to allow all amendments which are
necessary for the purpose of determining the real question in
controversy between the parties.”
“22. The proviso to Order 6 Rule 17 CPC prohibited entertainment of
amendment application after commencement of the trial with the
object and purpose that once parties proceed with the leading of
evidence, no new pleading be permitted to be introduced. The
present is a case where actually before parties could lead
evidence, the amendment application has been filed and from the
order dated 14-2-2014, it is clear that the plaintiff’s case is that
parties have led evidence even on the amended pleadings and the
plaintiff’s case was that in view of the fact that the parties led
evidence on amended pleadings, the allowing of the amendment
was a mere formality. The defendant in no manner can be said to
be prejudiced by the amendments since the plaintiff led his
evidence on amended pleadings also as claimed by him.
“28. While considering the prayer of amendment of the pleadings by a
party, this Court in Mahila Ramkali Devi v. Nandram has again
reiterated the basic principles, which are to be kept in mind while
considering such applications in paras 20, 21 and 22, which is
quoted as below: (SCC p. 138)“20. It is well settled that rules of procedure are intended to be a
handmaid to the administration of justice. A party cannot
be refused just relief merely because of some mistake,
negligence, inadvertence or even infraction of rules of
procedure. The court always gives relief to amend the
pleading of the party, unless it is satisfied that the party
applying was acting mala fide or that by his blunder he had
caused injury to his opponent which cannot be compensated
for by an order of cost.
21. In our view, since the appellant sought amendment in Para 3
of the original plaint, the High Court ought not to have
rejected the application.
22. In Jai Jai Ram Manohar Lal v. National Building Material
Supply, this Court held that the power to grant amendment to
pleadings is intended to serve the needs of justice and is not
governed by any such narrow or technical limitations.”
“30. Taking into overall consideration of the facts of the present case
and specially the fact that evidence by the parties was led after the
filing of the amendment application, we are of the view that justice
could have been served in allowing the amendment application.
We, thus, allow the appeal and set aside the order of the High
Court as well as the order of the Additional District Judge. TheCRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[42]
amendment application IA No. 1001 of 2011 stand allowed. Both
the parties have led their evidences and case has already been
fixed for hearing, however, to avoid any prejudice to the parties,
justice will be served in giving a limited opportunity to the parties
to lead additional evidence, if they so desire.
(e) (2021) 20 SCC 210 “Nitaben Dinesh Patel Vs. Dinesh
Dahyabhai Patel” wherein the Hon’ble Apex Court held as
under:-
“8. Order 6 Rule 17 CPC provides for amendment of the pleadings. The
court may at any stage of the proceedings allow either party to alter
or amend his pleadings (including written statement) in such
manner and on such terms as may be just, and all such
amendments shall be made as may be necessary for the purpose
of determining the real questions in controversy between the
parties. Proviso to Order 6 Rule 17 CPC further provides that no
application for amendment shall be allowed after the trial has
commenced, unless the court comes to the conclusion that in spite
of due diligence, the party could not have raised the matter before
the commencement of the trial.”
“9. Relying upon the proviso to Order 6 Rule 17 CPC, the High Court
has refused the amendment sought qua Paras 35 and 36. However,
it is required to be noted that as per the case of the appellant wife,
she actually came to know about the actual marriage between the
respondent and Hinaben Manubhai Panchal on 14-12-2006 only
during the cross-examination of the respondent and when the
marriage certificate was produced on record. It is required to be
noted that right from the very beginning, it was the specific case
on behalf of the appellant that the respondent husband is living in
adultery with Hinaben Manubhai Panchal and in the rejoinder-
affidavit filed by the respondent husband, the respondent husband
denied the allegation of adultery and stated that Hinaben Manubhai
Panchal is manager in the hospital run by him and she is looking
after the hospital and accounts as a job. Though, the respondent
husband had married with Hinaben Manubhai Panchal on 14-12-
2006, he did not disclose the correct and true facts and suppressed
the material facts. Only in the cross-examination, he admitted the
marriage with Hinaben Manubhai Panchal on 14-12-2006 and
produced the marriage certificate. Therefore, in view of the above,
the restrictions as per the proviso to Order 6 Rule 17 CPC shall not
be applicable.”
“11. Therefore, as such, and looking to the case on behalf of the
appellant, so pleaded in the written statement, the learned Family
Court was right and justified in allowing the amendment sought qua
Paras 35 and 36. The High Court has committed an error in
misapplying the proviso to Order 6 Rule 17 CPC and has erred in
rejecting the amendment sought qua Paras 35 and 36 in application
(Ext. 281).”
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[43]
(f) (2004) 13 SCC 40 “Ram Sahai Vs. Ramanand & ors.”
wherein the Hon’ble Apex Court held as under:-
“2. The plaintiff in the original suit filed seeking partition of joint Hindu
properties has challenged the order passed on an application filed
by him praying for amendment of the plaint. The application under
Order 6 Rule 17 CPC was filed by the appellant seeking leave to
amend the plaint and add thereto certain more properties which,
according to the appellant, were also liable to partition. It has
been inter alia averred in the application that only after filing of the
written statement by the adoptive mother of the appellant, did he
come to know that the properties which were sought to be added to
the plaint are ancestral joint Hindu properties. The amendment
application having been dismissed and so also the revision petition
by the High Court, the appellant is before this Court challenging
those orders. The suit is at the initial stage. Issues have not even
been framed. The question whether the properties sought to be
added are the personal properties of the defendant and other third
parties and thus are not liable to be partitioned is not relevant for
considering application for amendment. We are also unable to
sustain the view of the High Court that the scope of the litigation
will stand enlarged by addition of more properties. Adding more
properties would not result in changing the nature and character of
the suit. The effect of those properties standing in the name of the
defendant and other third parties would, of course, be examined on
merit in accordance with law by the trial court and on the facts of
the case when the suit is at the initial stage it cannot be made a
ground to reject the application for amendment, also bearing in view
the settled position that liberal approach is required to be adopted
in considering prayers of amendment of pleadings. We, of course,
express no opinion on the merits of the claim of the respective
parties.”
“3. The order rejecting amendment of the plaint cannot be sustained.”
“4. In view of the aforesaid, we set aside the impugned judgment of the
High Court confirming that of the trial court and allow the
application of the appellant filed under Order 6 Rule 17 CPC.”
(g) (2004) 13 SCC 432 “Pradeep Singhvi & anr. Vs. Heero
Dhankani & ors.” wherein the Hon’ble Apex Court held as
under:-
“4. Of course, by the time the defendants moved an application for
amending the written statement, the trial had commenced but the
proposed amendment, if allowed, would not have irreparably
prejudiced the plaintiffs. At the most, the plaintiff would have been
re-examined. We do not think that the trial court was justified in
refusing the prayer for amendment in written statement which would
have the effect of excluding the defendants from raising a plea
material for their defence.”
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[44]
“5. The impugned order of the trial court dated 6-2-2001 is set aside.
The defendant-respondents’ application for amendment in written
statement which came up for hearing on 15-1-2001 is allowed but
subject to payment of costs of Rs 2500 to be paid by the defendants
to the plaintiffs before the trial court. Needless to say, the plaintiffs
shall have the liberty of incorporating consequential amendment in
the plaint or filing rejoinder to the plea raised by the defendants in
the written statement by way of amendment.”
(h) (2012) 11 SCC 341 “Abdul Rehman & anr. Vs. Mohd. Ruldu &
ors.” wherein the Hon’ble Apex Court held as under:-
“10. Before considering the factual details and the materials placed by
the appellants praying for amendment of their plaint, it is useful to
refer Order 6 Rule 17 which is as under:
“17. Amendment of pleadings.–The court may at any stage of the
proceedings allow either party to alter or amend his pleading
in such manner and on such terms as may be just, and all
such amendments shall be made as may be necessary for the
purpose of determining the real questions in controversy
between the parties:
Provided that no application for amendment shall be allowed
after the trial has commenced, unless the court comes to the
conclusion that in spite of due diligence, the party could not
have raised the matter before the commencement of trial.”
It is clear that parties to the suit are permitted to bring forward
amendment of their pleadings at any stage of the proceeding
for the purpose of determining the real question in
controversy between them. The courts have to be liberal in
accepting the same, if the same is made prior to the
commencement of the trial. If such application is made after
the commencement of the trial, in that event, the court has to
arrive at a conclusion that in spite of due diligence, the party
could not have raised the matter before the commencement
of trial.
“11. The original provision was deleted by Amendment Act 46 of 1999,
however, it has again been restored by Amendment Act 22 of 2002
but with an added proviso to prevent application for amendment
being allowed after the trial has commenced, unless the court
comes to the conclusion that in spite of due diligence, the party
could not have raised the matter before the commencement of
trial. The above proviso, to some extent, curtails absolute
discretion to allow amendment at any stage. At present, if
application is filed after commencement of trial, it has to be shown
that in spite of due diligence, it could not have been sought earlier.
The object of the rule is that courts should try the merits of the
case that come before them and should, consequently, allow all
amendments that may be necessary for determining the real
question in controversy between the parties provided it does not
cause injustice or prejudice to the other side. This Court, in a
series of decisions has held that the power to allow theCRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[45]
amendment is wide and can be exercised at any stage of the
proceeding in the interest of justice. The main purpose of allowing
the amendment is to minimise the litigation and the plea that the
relief sought by way of amendment was barred by time is to be
considered in the light of the facts and circumstances of each
case. The above principles have been reiterated by this Court in J.
Samuel v. Gattu Mahesh and Rameshkumar Agarwal v. Rajmala
Exports (P) Ltd. Keeping the above principles in mind, let us
consider whether the appellants have made out a case for
amendment.
“13. Next, we have to see whether the proposed amendments would
alter the claim/cause of action of the plaintiffs. In view of the same,
we verified the averments in the unamended plaint. As rightly
pointed out by Ms Manmeet Arora, learned counsel for the
appellants that the entire factual matrix for the relief sought for
under the proposed amendment had already been set out in the
unamended plaint. We are satisfied that the challenge to the
voidness of those sale deeds was implicit in the factual matrix set
out in the unamended plaint and, therefore, the relief of
cancellation of sale deeds as sought by the amendment does not
change the nature of the suit as alleged. It is settled law that if
necessary factual basis for amendment is already contained in the
plaint, the relief sought on the said basis would not change the
nature of the suit. In view of the same, the contrary view expressed
by the trial court and the High Court cannot be sustained. It is not
in dispute that the relief sought by way of amendment by the
appellants could also be claimed by them by way of a separate suit
on the date of filing of the application. Considering the date of the
sale deeds and the date on which the application was filed for
amendment of the plaint, we are satisfied that the reliefs claimed
are not barred in law and no prejudice should (sic would) have been
caused to Respondents 1-3 (Defendants 1-3 therein) if the
amendments were allowed and would in fact avoid multiplicity of
litigation.”
“14. The learned counsel for the appellants has also brought to our
notice that the amendments were necessitated due to the
observations made by the High Court in its earlier order dated
19-4-2007 in CR No. 3361 of 2007 to the effect that the appellants’
application for ad interim injunction without seeking cancellation of
the sale deeds is not maintainable. This aspect has not been noticed
by the trial court as well as the High Court while considering the
application filed under Order 6 Rule 17 of the Code.”
“15. It is also brought to our notice that Respondents 2 and 3 herein, the
transferees under the sale deed, are the nephews of the appellants
herein and the transferors and the purchase of the suit land by them
is void to their knowledge as they were equally bound by the
judgment dated 20-12-1971 and compromise deed dated 4-7-1972
declaring that under the applicable customary law of inheritance to
the parties therein, widows and daughters have no right of
inheritance in the presence of the sons. It is the claim of the
appellants that in view of the same, the respondent transferees areCRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[46]
not bona fide purchasers of the suit land. The learned counsel for
the appellants again brought to our notice that these facts were
specifically stated in the unamended plaint and, therefore, the
amendment seeking incorporation of relief of declaration that the
sale deeds are void does not change the nature of the suit. Because
of those allegations in the unamended plaint, the same was denied
by the defendants in their written statement and we are satisfied that
the necessary factual matrix as regards the relief of cancellation
was already on record and the same was an issue arising between
the parties.”
“16. In view of the stand taken by Respondents 1-3 herein/Defendants
1-3 in their written statement and the observation of the High Court
in the application filed for injunction, we are of the view that the
proposed amendment to include a relief of declaration of title, in
addition to the permanent injunction, is to protect their interest and
not to change the basic nature of the suit as alleged.”
“17. In Pankaja v. Yellapa this Court held that if the granting of an
amendment really subserves the ultimate cause of justice and
avoids further litigation, the same should be allowed. In the same
decision, it was further held that an amendment seeking declaration
of title shall not introduce a different relief when the necessary
factual basis had already been laid down in the plaint in regard to
the title.”
“18. We reiterate that all amendments which are necessary for the
purpose of determining the real questions in controversy between
the parties should be allowed if it does not change the basic nature
of the suit. A change in the nature of relief claimed shall not be
considered as a change in the nature of suit and the power of
amendment should be exercised in the larger interests of doing full
and complete justice between the parties.”
“19. In the light of various principles which we have discussed and the
factual matrix as demonstrated by the learned counsel for the
appellants, we are satisfied that the appellants have made out a
case for amendment and by allowing the same, the respondents
herein (Defendants 1-3) are in no way prejudiced and they are also
entitled to file additional written statement if they so desire.
Accordingly, the order of the trial court dated 6-6-2007 dismissing
the application for amendment of plaint in Suit No. 320 of 2003 as
well as the High Court in Abdul Rehman v. Mohd. Ruldu dated
13-11-2007 are set aside. The application for amendment is allowed.
Since the suit is of the year 2003, we direct the trial court to dispose
of the same within a period of six months from the date of receipt of
copy of the judgment after affording opportunity to all the parties
concerned.”
“20. The appeal is allowed. No order as to costs.”
(i) (2021) SCC Online Cal. 2020 “Exide Industries Limited
(formerly known as Chloride India Limited Vs. Urmila
Pasari & ors.” wherein the Hon’ble High Court held as under:-
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[47]
“19. That apart, what clinches the issue in favour of the opposite party
Nos. 1 to 3 is that the first amendment to the plaint, which was
allowed on consent, categorically averred the requirement of the
present plaintiffs and their respective families, having no
reasonable suitable accommodation at Calcutta. Paragraph 6 of the
first amended plaint clearly discloses such pleadings.”
“20. By virtue of the second amendment, the present plaintiffs only
sought to introduce and elaborate further facts within the four
corners of the amended plaint. The amendments sought, let alone
introducing a ‘new’ cause of action, were only in the nature of
elaborating the pleadings already existent after the first
amendment. Since the requirement of the present plaintiffs had
already been pleaded in the first amendment, there cannot be any
scope of perceiving the second amendment as introduction of a
new set of facts, comprising a fresh cause of action. Rather, as
correctly observed by the Trial Court in the impugned order, the
said amendment was merely clarificatory in nature and was
necessary to adjudicate the dispute between the parties
effectively.”
“21. In any event, the petitioner and the other defendants were given the
liberty to file additional written statement, thereby denying the
amended pleadings.”
“22. It is well-settled that, while adjudicating an amendment application,
the merits of the proposed amendment cannot be gone into. In view
of the second amendment to the plaint in the present case falling
squarely within the ambit of the pleadings already on record and are
necessary for a complete determination of the questions in
controversy in the suit, the said amendment was necessary and
rightly allowed by the Trial Court. There arises no question of
substitution of a new cause of action, in view of the above
discussions.”
[26] I have heard at length and considered the rival submissions
advanced by the learned senior counsels appearing for the parties.
In the present case, the real controversy to be decided is
the date on which the petitioner received the Arbitral Award dated
20-02-2023. This date is very crucial for ascertaining the
commencement of the limitation period prescribed for filing an
application for setting aside the Arbitral Award as provided under Section
34(3) of the Act. The resolution of this question is very essential for
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[48]
establishing the correct timeline within which legal recourse must be
sought, thereby ensuring adherence to statutory dateline and fair
administration of justice.
[27] The original plea set up by the respondent in his reply dated
14-08-2023 about the date on which the petitioner received a signed
copy of the Arbitral Award dated 20-02-2023 is on 20-02-2023, i.e., on
the date of passing the said Arbitral Award itself. The amendments
sought for by the respondent is basically about the mode of service of
the said Arbitral Award to the petitioner. By the said amendments, the
respondent only elaborated that the signed scanned copy of the Arbitral
Award dated 20-02-2023 was served upon the petitioner by way of an e-
mail and the date of serving or communicating the said Arbitral Award to
the petitioner remain unchanged even after the amendment. In my
considered view, the core issue or the real controversy to be decided
remain unchanged even after allowing the amendments sought for by
the respondent.
[28] Allowing the proposed amendments, in my considered view,
was crucial for the effective adjudication of the real controversy and it
will significantly contribute to the fair administration of justice. The said
amendment serves to allow for inclusion of all pertinent facts while
maintaining the integrity of the case and to ensure a comprehensive and
accurate presentation of the facts without causing undue prejudice to the
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[49]
petitioner. The said amendment is also imperative for accurately
determining the date on which the petitioner received the said Arbitral
Award and such amendment does not alter the essence or nature of the
original pleadings but seeks to address the pivotal question of the
commencement date of the limitation period prescribed under section
34(3) of the Act. By permitting such amendment, the court will be in a
better position for ensuring a just and thorough adjudication of the
matter, facilitating a clear and accurate determination of the real
controversy.
[29] In my considered view, the introduction of the facts regarding
the service of award by e-mail is not a deviation from the respondent’s
original defense but rather an answer and legitimate clarification. This
expansion does not displace or undermine the original defense but
present a more comprehensive view on how service was executed and
it reflects the respondent’s right to fully disclose and substantiate all
relevant methods of service. The claim of service by e-mail compliments
the original defense by addressing all potential avenues of service and
ensures that the case is adjudicated based on complete factual record.
[30] The said amendment is not an introduction of a new case but
rather a necessary clarification to fully address the complexities of the
case. This is consistent with the respondent’s original plea, which was
focused on the date of delivery. The claim made by the petitioner that
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[50]
the amendment attempts to withdraw from the original position or to
defeat the petitioner’s condonation application is unfounded. The
amendment is a legitimate effort to ensure that all relevant details are
accurately reflected in the pleadings and there is no basis for allegation
of mala fides or procedural impropriety.
[31] The claim that the amendment introduces an entirely new
case is misconceived. The real controversy as to when the Arbitral
Award was served to the petitioner remains the same. The service of the
Arbitral Award by way of an e-mail service does not negate or replace
the original defense but compliments it by adressing all possible
methods of communication and in my considered view, the amendments
does not inflict any irreperable prejudice to the petitoner. The petitioner
can be afforded an opportunity to refute any averments brought on
record by such amendment.
[32] It is well settled principle of law that applications made under
Order VI, Rule 17 of the CPC are to be construed liberally and courts
have consistently upheld the principle that amendments to pleadings
should be permitted where they serve the ends of justice and do not
unduly prejudice the opposing party. This liberal approach underscores
the judiciary’s commitment to ensuring that cases are decided on their
substantive merits rather than procedural technicalities. The Hon’ble
Apex Court have consistently held that Order VI, Rule 17 of the CPC
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[51]
cast an obligation on the litigants to carry out all such amendments as
are necessary for the purpose of determining the real question in
controversy. In the present case, the real question in controversy is the
effective date of service of the Arbitral Award to the petitioner and what
the respondent did by way of seeking amendments was only to
elaborately explain or clarify the mode of service of the said Arbitral
Award.
[33] The Hon’ble Supreme Court have consistently held that court
possesses expansive discretion to permit amendments to pleadings in
such a manner and on such terms as it deems just and equitable and
that a rigid and hyper technical approach should not govern the
consideration of amendment applications. It is settled law that court’s
approach, while considering amendment application, should be liberal
and pragmatic specially when any potential prejudice to the opposing
party can be adequately addressed through imposition of cost and that
court should exercise its discretion liberally in permitting amendments,
more particularly of written statements.
[34] In my considered view, the amendment application filed by the
respondent is consistent with the procedural norms and aims to ensure
a comprehensive and accurate presentation of the case and is just and
necessary for the proper adjudication of the dispute in question, i.e.,
what is the effective date of service of the Arbitral Award to the petitioner.
The learned District Judge’s handling of the matter is both legally sound
CRP(CRP Art. 227) No. 36 of 2024 Contd…/-
[52]
and procedurally correct and the decision to permit the amendment is
well founded and legally tenable. The learned District Judge’s decision
respected the essence of the real controversy test while ensuring that
the amendment did not stray from the core issue but rather provided a
fuller factual context. This is consistent with judicial principles allowing
for amendments which enhance clarity and completeness of the
pleadings. The principle of parity, which ensures that similar leniency is
extended to both the parties, is also appropriately applied by the learned
District Judge in the present case. In my considered view, the impugned
order is not only correct but also align with established legal principles.
[35] I have also carefully perused all the judgments relied on by the
learned senior counsel appearing for the petitioner, however this court is
of the considered view that the said judgments are of no help to the case
of the petitioner in view of the peculiar facts and circumstances of the
present case.
In the result, this court did not find any ground or reason for
interfering with the impugned order. Accordingly, the present petition is
hereby dismissed as being devoid of merit. However, there will be no
order as to cost.
JUDGE
FR / NFR
Devananda
CRP(CRP Art. 227) No. 36 of 2024 Contd.../-
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