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Judgment
Prasenjit Mandal, J.—These two applications are directed against the order Nos. 20 dated May 17, 2007, order No. 2 dated February 16, 2005 and order No. 21 dated May 29, 2007 passed by the learned District Judge, Hooghly in Misc. Case No. 141 of 2004 thereby holding that the misc. case is maintainable and rejecting an application for amendment of the misc. case. The two applications have arisen out of the orders as stated above at the instance of the rival parties - one against the others, and as such, they are disposed of by this common judgment.
For convenience, I am discussing the C.O. No. 3211 of 2007 first.
C.O. No. 3211 of 2007
This application is at the instance of the Petitioner of the Misc. case and is directed against the order No. 21 dated May 29, 2007 thereby rejecting an application for amendment of the petition.
The short fact is that the Petitioner filed an application u/s 11 read with Sections 14 and 15 of the Arbitration and Conciliation Act, 1996 praying for cancellation of the agreement dated November 1, 1998 in between the parties, removal of the opposite party Nos. 2 & 3 as arbitrators in respect of the properties described in the schedule of the application and for other reliefs.
The Petitioner and the opposite party No. 1 are full brothers and the dispute amongst the parties to the Misc. Case is over partition of properties, share of crops, etc. A written agreement was held amongst themselves and such agreement lays down the clause of arbitration.
In that misc. case, the Petitioner filed an application for amendment for incorporation of certain paragraphs. For proper appreciation, the proposed amendment is incorporated below:
Paragraph 10(a)-i) only one Arbitrator (opp. Party No. 2) executed his signature upon the Award, and the copy whereof not been issued to the Petitioner.
ii) All Co-Sharers to the Schedule of property not been added in the proceedings.
iii) The Petitioner was forced by opp. Party Nos. 2, 3 to execute signature upon some blank papers.
iv) arbitrators were not impartial and inspite of subsisting order of status-quo passed in Misc. Case No. 3 of 1999, passed Award dated 26.12.2000, for which arose Contempt Proceedings which is pending and etc. The copy whereof is annexed hereto and Marked ''B''.
Upon hearing both the sides, the learned District Judge dismissed the application for amendment of the petition holding that the proposed amendments are irrelevant for adjudication of the dispute. Being aggrieved, this application has been preferred.
Upon hearing the learned Counsel for the parties and on perusal of the materials on record, I find that the above facts are not in dispute. Now, the short question involved is whether the learned District Judge was justified in rejecting the application for amendment of the petition.
From the proposed amendment, it is clear that two arbitrators were appointed to settle the dispute between the parties and the two arbitrators passed an award on December 26, 2000. Thereafter, the Petitioner expressed his grievance. He filed the application for amendment of the petition. If the Petitioner has any grievance against the award, his remedy is to take appropriate steps u/s 34 of the 1996 Act within the stipulated time, that is, within three months from the date of passing the award or one month extra time thereafter and not afterwards. After passing of the award, the question of removal as per Sections 13 and 14 of the Arbitration and Conciliation Act, 1996 does not lie at all.
Mr. Gayen, learned Advocate appearing on behalf of the Petitioner, has referred to the decision of State Bank of Hyderabad v. town Municipal Council (2007) 1 SCC 765, particularly paragraph Nos. 5 and 13 and the decision of Orient Transport Co. Gulabra and Another Vs. Jaya Bharat Credit and Investment Co. Ltd. and Another, particularly paragraph No. 3 in support of his contention that the amendment could be entertained. So far as the decision of State Bank of Hyderabad (supra) is concerned, I find that this relates to a general principles governing amendment of the pleadings. Similarly, the other decision of Orient Transport Co., Gulabra and Anr. (supra) relates to the general principles that a suit challenging the validity of a contract is not barred by Section 32 merely because it contains arbitration clause. A right u/s 9 of the CPC has not been taken away by the provisions of Section 32 of the said Act of 1940.
Similarly, Mr. Gayen has also referred to the decision of Siddhartha Srivastava reported in In Re: Siddharth Srivastava, and thus, he submits that the award passed by an arbitrator is not a decree though it may be enforceable as if it were a decree. This decision, I hold, is not of helpful to the Petitioner in respect of the matter under consideration, that is, amendment of the petition. The said decision deals with an act of insolvency and not an amendment.
On the other hand, Mr. Chakraborty, learned Advocate appearing on behalf of the opposite party has referred to the decisions of Grid Corporation of Orissa Ltd. v. AES Corporation and Ors. (2002) 7 SCC 736, Narayan Prasad Lohia Vs. Nikunj Kumar Lohia and Others, and Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, . The decision of Grid Corporation of Orissa Ltd. (supra) relates to appointment of an arbitrator and in failure or impossibility to act u/s 11(6) and 14 respectively of the 1996 Act. According to the decision of Narayan Prasad Lohia (supra) an objection relating to composition of arbitral tribunal is to be made before the arbitral tribunal itself or within time prescribed under Sections 16(2). If no objection is raised within the time limit u/s 16(2) of the 1996 Act, there will be a deemed waiver of objection u/s 4 of the 1996 Act. When award is passed by the arbitral tribunal after the composition of the tribunal was in accordance with the agreement between the parties, there is no scope of challenge of the award on the ground that the composition of the arbitral tribunal was in conflict with the provisions of Part I of the said Act. Similarly, the decision of Pirgonda Hongonda Patil (supra) lays down that the amendment taking away right accrued to party by lapse of time should not be permitted. The time to see for amendment as prayed for in the instant case had already expired for the reasons as discussed above and the above decisions. The learned District Judge, I hold, has rightly rejected the application for amendment of the Misc. Case.
Mr. Chakraborty has also referred to the decision of Ashok Kumar Singh and Ors. v. Shanti Devi and Ors. AIR 2010 Pat 1 and thus, he submits that the Arbitration Act is a special statute and provisions of the Act provide for complete machinery for resolution of disputes. The provision of the CPC could not be applied to any proceeding of the Act. It is discussed therein also as to what could be the ''Court'' before which an objection was to be filed u/s 34 of the 1996 Act. It was noted that the ''Court'' could be the principal civil Court of the District for the purpose of Sections 2(e), 34 and 36 of the said Act. Thus, when the remedy of appeal is provided under the Act of 1996, the revision petition under the CPC would not be maintainable. This decision is based on the decision of AIR 2005 SC 1514: 2004 AIR SCW 7500 and other decisions of the Patna High Court.
In view of the facts and circumstances, I am of the view that this application is not maintainable at all. The learned District Judge has, therefore, rightly rejected the application for amendment of the Misc. Case. Accordingly, there is nothing to interfere with the impugned order. The Misc. Case shall proceed in accordance with law.
The revisional application fails to succeed. It is, therefore, dismissed.
Considering the circumstances, there will be no order as to costs.
C.O. No. 2654 of 2007
This application is at the instance of the opposite party No. 1 of the Misc. Case No. 141 of 2004 and is directed against the order No. 20 dated May 17, 2007, order No. 2 dated February 16, 2005 and the order No. 21 dated May 29, 2007. On February 16, 2005 the learned Trial Judge held that the Misc. Case was maintainable. The belated application challenging the same order cannot be entertained.
In view of the above findings, this revisional application is not also maintainable. So, it is also dismissed.
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.