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2014 DIGILAW 361 (ALL)

M/S Dharampal Satyapal Ltd. v. M/S Dinesh Enamelled Wire Industries (P) Ltd.

2014-01-31

PANKAJ MITHAL

body2014
Pankaj Mithal,J.:- Heard Sri Shiv Sagar Singh, learned counsel for the petitioner. Sri H.N. Singh, Senior Advocate, assisted by Sri V.K. Singh appears for the respondent. 2. Petitioner has invoked the writ jurisdiction of this court against the order dated 10.9.2013 passed by the District Judge in Arbitration Case No.58 of 2011, M/s Dharmpal Satyapal Ltd. Vs. M/s Dinesh Enamelled Wire Industries (P) Ltd., filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Arbitration Act). 3. The District Judge by the impugned order has rejected the petitioner's application paper No.107-C for the amendment of the claim which the petitioner had preferred before the arbitrator. 4. It appears that the respondent had agreed to sell some land to the petitioner. The said agreement provided that in case of any dispute relating to the agreement it shall be referred and settled by an arbitrator. 5. In view of the arbitration clause contained in the agreement the dispute between the parties relating to the specific performance of the said agreement was referred to the arbitral tribunal. 6. The petitioner before the arbitral tribunal specifically claimed enforcement of the agreement to sell dated 6.12.2002? and? damages of Rs.7,50,00,000/-. In the relief claimed before the arbitration, the petitioner had not asked for refund of the earnest money if any paid. 7. The arbitral tribunal on 9.5.2011 made an award and all claims raised by the petitioner were dismissed. 8. It is against the aforesaid award that the petitioner has taken recourse under Section 34 of the? Arbitration Act before the Court for setting aside the said award. 9. In proceedings under Section 34 of the Arbitration Act, petitioner applied for amending the claim which was raised by him before the arbitrator so as to add the relief of refund of earnest money on the ground that Section 22 of the Specific Relief Act, 1963 (hereinafter referred to as the Act) specifically permits the plaintiff to a suit for decree of specific performance to get the plaint amended so as to add the relief which has not been claimed. 10. The aforesaid application has been rejected by the District Judge holding that there is no provision for amendment of the claim petition after the arbitral proceedings have come to an end and the proceedings under Section 34 of the? 10. The aforesaid application has been rejected by the District Judge holding that there is no provision for amendment of the claim petition after the arbitral proceedings have come to an end and the proceedings under Section 34 of the? Arbitration Act for setting aside the award is not a continuation of the arbitral proceedings. 11. It is true that in a suit for specific performance of an agreement to sell the plaintiff is entitle to amend the plaint at any stage and claim the relief which he has failed to claim in the plaint but the proceedings for arbitration is not by way of a suit for specific performance though the relief claimed before the arbitral tribunal may be of the same nature. Therefore, Section 22 of the Specific Relief Act which is applicable to suits cannot be applied to arbitral proceedings. 12. Learned counsel for the petitioner has cited two decisions of the Supreme Court namely 2005 (2) AWC 1685 (SC) Surinder Singh Vs. Kapoor Singh (D) through L.Rs. and others and 1982 (1) SCC 525 Babu Lal Vs. M/s Hazari Lal Kishori Lal and others. 13. Both the above decisions are in respect of suits for specific relief before the civil court and are not related to the amendment of claim petition preferred before the arbitral tribunal that to after the culmination of the arbitration proceedings. 14. The provisions of the Civil Procedure Code are not strictly applicable to proceedings before the arbitral tribunal until and unless in view of Section 19 of the Act the parties agree and bound themselves to the procedure as prescribed by the Civil Procedure Code. 15. There is nothing on record to show that the parties while entering the arbitration have agreed for applying the C.P.C. or the provisions of amendment of the plaint as contemplated by Order 6 Rule 17 C.P.C. 16. This apart Section 23 of the Act gives an opportunity to the parties to the arbitral proceedings to amend and supplement their claims or their defence during the course of the arbitral proceedings. The petitioner failed to avail the above opportunity before the arbitral tribunal. The said liberty available to the parties is only during the pending of the arbitral proceedings before the arbitral tribunal and cannot be availed when the arbitral proceedings have come to an end. 17. The petitioner failed to avail the above opportunity before the arbitral tribunal. The said liberty available to the parties is only during the pending of the arbitral proceedings before the arbitral tribunal and cannot be availed when the arbitral proceedings have come to an end. 17. The arbitral tribunal on making the award becomes functus officio and ceases to have any jurisdiction to allow the parties to amend the claim or the defence inasmuch as in view of Section 32 of the Act, the arbitration proceedings stand terminated with the pronouncement of the award except where proceedings under Section 33 of the Arbitration Act for correction of the award have been initiated or the court under Section 34(4) of the Arbitration Act gives an arbitral tribunal an opportunity? to eliminate the grounds for setting aside the award. 18. Sri H.N. Singh, pointed out that once an award has been made by the arbitral tribunal, the only remedy available to the parties is to request the arbitral tribunal to make an additional award in respect of the claims which may have been omitted during the arbitral proceedings. 19. Section 33(4) of the Arbitration Act gives liberty to the parties to request the arbitral tribunal to make an additional award in respect of any claim which may have been left out from the award. The said remedy to the parties is available before the arbitral tribunal and that too for a limited period of 30 days from the receipt of arbitral award. It cannot be invoked after the termination of arbitral proceedings and the expiry of 30 days of the receipt of the award meaning thereby, that it is not available in proceedings under Section 34 of the Arbitration Act. 20. Moreover, request for additional award can be made only in respect of claims which were made before the arbitral tribunal but omitted from the award. A request of additional award can not be made in respect of claims which were not even presented before the arbitral tribunal. 21. The claim for refund of earnest money was not contained in the claim petition. Therefore, an additional award in respect of it is not permissible under Section 33(4) of the Arbitration Act. 22. A request of additional award can not be made in respect of claims which were not even presented before the arbitral tribunal. 21. The claim for refund of earnest money was not contained in the claim petition. Therefore, an additional award in respect of it is not permissible under Section 33(4) of the Arbitration Act. 22. In this view of the matter, it cannot be said the petitioner was entitle to get the pleadings or the claim petition amended in accordance with the provisions of the C.P.C. 23. The order impugned is otherwise also an interlocutory order and the parties are free to attack it after the decision of the proceedings under Section 34 of the Arbitration Act in case an occasion arises to file an appeal under Section 37 of the Act. 24. In view all the above reasons, I do not consider it that any ground for my interference in exercise of writ jurisdiction has been made out in this writ petition.? 25. The District Judge may proceed with the decision of the case most expeditiously. 26. The petition is accordingly dismissed. _________