IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.56001 OF 2014 (GM-RES) BETWEEN:
M/S SREE KRISHNA GARDENIA BUILDERS & DEVELOPERS, REGISTERED OFFICE AT NO.559, R.M.V. 2ND STAGE, NEW BEL ROAD, BANGALORE-560 094.
REPTD. BY ITS PROPRIETOR, DR. K. BALARAMAN.
(BY MR.SANJAY H SETHIYA, ADV.) AND:
1. M/S SPECTRA SHELTERS PVT LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, HAVING ITS OFICE AT NO.5, 1ST FLOOR, 9TH CROSS, INDIRANAGAR, 1ST STAGE, BANGALROE-560038, REPTD. BY ITS MANAGING DIRECTOR, MR.C. CHANDRASHEKAR.
2. K.S. ANANTHRAMAIAH MAJOR, RETIRED CHIEF ENGINEER, PWD, GOVT. OF KARANATAKA, PRESIDING ARBITRATOR, NO.985, 13TH MAIN, BANASHANKARI 1ST STAGE, 1ST BLOCK, BANGALORE-560 050.
… PETITIONER 3. SRI. M. SHIVANANDA MAJOR, RETIRED ENGINEER IN CHIEF, PWD, GOVT. OF KARNATAKA, ARBITRATOR, NO.345, "SIRI" 2ND STAGE, I BLOCK, 15TH MAIN, 3RD STAGE, BASAVESHWARANAGAR, BANGALORE-560 079.
4. SRI. L.V. SREERANGARAJU MAJOR, RETIRED GENERAL MANAGER, KARNATAKA POWER CORPORATION LTD., ARBITRATOR, NO.537, "JYESHTA"
3RD MAIN, HOSAKEREHALLI CROSS, BSK III STAGE, III MAIN, BANGALORE-560 085.
… RESPONDENTS (BY SMT. NIDISHREE B V, ADV, FOR C/R1 (CP NO.6839/14) V/O DTD 05/08/15 NOTICE TO R2 & R4 ARE DISPENSED WITH SRI. ASWIN PRABHU S D, ADV. FOR R3) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH OR SET ASIDE THE IMPUGNED ORDER DT.21.11.2014 PASSED IN A.S.No.22/2008 ON I.A.No.II FILED BY THE PETITIONER AT ANNX-A & ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri. Sanjay H Sethiya, learned counsel for Petitioner.
Sri. Nidhishree.B.V., learned counsel for Respondent No. 1.
Sri. Aswin Prabhu.S.D., learned counsel for Respondent No.3.
2. The writ petition is admitted for hearing.
With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 227 of Constitution of India the petitioner has assailed the validity of the order dated 21.11.2014 by which application filed by the petitioner under Section 151 of the Code of Civil Procedure, 1908 to raise additional grounds assailing the arbitral award has been dismissed. In order to appreciate the petitioner’s challenge to the impugned order, which are stated hereinafter:
The petitioner had entered into a Joint Development agreement dated 07.06.2004 with Srinivasa Murthy and had agreed to construct 172 Residential Apartments. The dispute between the parties had arisen in relation to the aforesaid agreement. Thereupon the petitioner filed an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’ for short). The arbitral tribunal passed a unanimous award on 14.04.2008 by which the petitioner herein was directed to pay a sum of Rs.4,53,14,327/- along with interest. Being aggrieved the petitioner filed a petition under Section 34 of the Act. It is the case of the petitioner that during the pendency of the proceeding, the petitioner learnt that one of the Arbitrator’s viz., Sri.M.Shivananda-respondent No.3 had failed to disclose the fact that Government of Karnataka had conducted an enquiry in respect of a serious charge against him and had appointed one man fact finding committee for investigation into various irregularities committed by him as Managing Director of Karnataka State Construction Corporation Limited. However, it is the case of the petitioner that the aforesaid fact was not disclosed to the petitioner. The petitioner thereupon filed an application on 17.08.2012 under Section 151 of the Code on which additional grounds were sought to be incorporated with regard to challenge of the award passed by the arbitral tribunal. The Trial Court by an order dated 21.11.2014 rejected the aforesaid application on the ground that the same is belated and the petitioner cannot be permitted to raise additional grounds beyond the period mentioned under Section 34(3) of the Act.
4. Learned counsel for the petitioner has submitted that the Trial Court grossly erred in holding that it has no power to permit amendment of an application beyond the time limit prescribed under Section 34(3) of the Act. It is further submitted in view of law laid down by Supreme Court in ‘STATE OF MAHARASHTRA VS. HINDUSTAN CONSTRUCTION COMPANY LTD.,’, 2010 (4) UJ SC 1903, the court has power to allow the application for amendment. However, the aforesaid aspect of the matter has not been appreciated by the Trial Court. On the other hand, learned counsel for the respondent submitted that the order passed by the Trial Court perfectly just and legal.
It is further submitted that the proceeding under Section 34 of the Act is summary in nature and cannot be treated as full fledged regular civil suit. It is also submitted that a party would not be entitled to file an application for amendment in a proceeding under Section 34 of the Act if the same defeats the intent behind Section 34 of the Act. In support of aforesaid submissions, reference has been made to decisions in ‘SATYAM COMPUTER SERVICES LIMITED VS. VENTURE GLOBAL ENGINEERING LLC AND ANR’, MANU/AP/0032/2010, ‘FIZA DEVELOPERS & INTER-TRADE P.LTD. VS. AMCI (I) PVT. LTD. AND ANR’, 2009 (4) ARBLR 176 (SC) and ‘VASTU INVEST & HOLDINGS PVT. LTD. VS. GUJARAT LEASE FINANCING LTD.,’, 2001 (2) ARBLR 315 (BOM).
5. I have considered the submissions made by learned counsel for the parties and have perused the record. The supreme court in the case of State of Maharashtra supra has held that the words “the Court finds that” employed by the legislature in Section 34(2)(b) of the Act enables the Court to grant leave to amend an application filed under Section 34 of the Act within the period of Limitation, if very peculiar circumstances of the case so warrant and if it is so required in the interest of justice. In view of aforesaid enunciation of law, it is axiomatic that a court dealing with an application under Section 34 of the Act has power to allow an application for amendment if very peculiar circumstances of the case so warrants and if it is so required in the interest of justice.
6. In the backdrop of aforesaid legal position, facts of the case in hand may be examined. Admittedly in the instant case, the award was passed on 14.04.2008 and the application for amendment was filed on 17.08.2012 i.e., approximately after a period of four and half years from the date of filing of the petition under Section 34 of the Act. It is pertinent to mention here that admittedly in view of the suggestion made by the petitioner, the respondent No.3 was appointed as petitioner’s nominee Arbitrator. In pursuance of an order dated 16.11.2006 passed in CMP No.84/2006 it is pertinent to mention here that in the aforesaid CMP the respondent No.3 was represented by Mr.B.B.Bajantri, Advocate. The aforesaid Advocate was also respondent No.3’s counsel in the proceeding before the Karnataka Administrative Tribunal filed by respondent No.3 in which challenge was made to the findings of the Lokayukta and the disciplinary proceedings initiated by him. It is also pertinent to mention here that respondent No.3 viz., the nominee Arbitrator of the petitioner about whom by way of proposed amendment the petitioner wanted to incorporate certain allegations has filed an affidavit in this proceeding in which it is stated that he had disclosed the factum of the pendency of the proceeding before Karnataka Administrative Tribunal and the challenge to the Lokayukta enquiry in the first hearing itself. The award passed by the Arbitral Tribunal is unanimous. In the fact situation of the case there appears to be no plausible reason to disbelieve the version of respondent No.3 who was the nominee Arbitrator of the petitioner. The aforesaid facts lead to an irresistible conclusion that the facts sought to be incorporated by way of amendment were within the knowledge of the petitioner. Therefore, in such a case, if the application for amendment is allowed the same would be contrary to the object of the Act. The petitioner in the fact situation of the case has failed to make out any ground for allowing of the application for amendment in the interest of justice. In view of preceding analysis, the impugned order neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record. The order passed by the Trial Court neither suffers from any jurisdictional infirmity nor any error apparent on the face of the record warranting interference of this Court in exercise of its power under Article 227 of the Constitution of India. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423].
7. In the instant case the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution.
In the result, I do not find any merit in the writ petition. The same fails and is hereby dismissed.
Sd/- JUDGE SS