1 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.21 OF 2008 CIVIL APPLICATION NO.21 OF 2008 CIVIL APPLICATION NO.21 OF 2008 in in in ARBITRATION APPEAL NO.6 OF 2007 ARBITRATION APPEAL NO.6 OF 2007 ARBITRATION APPEAL NO.6 OF 2007 in in in ARBITRATION APPLICATION NO.44 OF 2003 ARBITRATION APPLICATION NO.44 OF 2003 ARBITRATION APPLICATION NO.44 OF 2003 The State of Maharashtra .. Applicant Vs. 1. M/s Hindustan Construction ..Respondents & ors Mr.A.A.Kumbhakoni,Sr.Advocate with Ms.G.P.Mule AGP for Applicant Mr.Aspi Chinoy i.b.Harish Joshi & Co for Respondents CORAM : DR.D.Y.CHANDRACHUD, J CORAM : DR.D.Y.CHANDRACHUD, J CORAM : DR.D.Y.CHANDRACHUD, J DATED : 9TH JANUARY, 2009 DATED : 9TH JANUARY, 2009 DATED : 9TH JANUARY, 2009 P.C. P.C. P.C. 1. This Civil Application has been taken out in an Arbitration Appeal under section 37 of the Arbitration and Conciliation Act, 1996. The appeal arises out of an application that was filed for setting aside an arbitral award under section 34. 2. The Arbitral Award is dated 26th June, 2003. The judgment of the learned trial Judge on the application under section 34 was delivered on 29th June, 2006. The appeal before this Court was lodged on 6th December, 2007. The Civil 2 application for amendment of the grounds in the Memo of Appeal has been moved on 23rd June 2008. 3. On behalf of the respondents the maintainability of the application for amendment of the grounds of appeal is sought to be objected to on the ground that the amendment of the grounds could not be made beyond the period prescribed for challenging the Arbitral Award under section 34 of the Act. 4. On the other hand, the contention of the applicant is that in the proposed grounds what is sought to be urged is that the Arbitrator travelled beyond the terms of the contract and it was therefore urged that the arbitrator in that sense acted beyond jurisdiction. It was urged was that the period of limitation prescribed for challenging the Arbitral Award would not apply to an objection on the ground of jurisdiction since the objection as to jursidiction can be raised at any stage. 5. The question that arises before the Court is not res integra but, is covered by a judgment of a Division Bench of this Court consisting of Hon’ble Mr Justice B.N.Srikrishna (as the learned Judge then was) and Hon’ble Smt Justice Ranjana Desai, in (Vastu Invest & Holdings Pvt.Ltd vs Gujrat 3 Lease Financing Ltd) (2001 Vol.103 (2) Bom.L.R.156.) In the proceedings which arose before the Division Bench in appeal the contention was that in view of the provisions of section 41 of the Presidency Small Causes Court Act, 1882 and section 28 of the Bombay Rent Act, a suit for recovery of possession could not form the subject matter of arbitral proceedings and that consequently there was an absence of jurisdiction. The learned Single Judge dismissed the Chamber Summons seeking to raise the aforesaid ground, as and by way of amendment. While noticing that the challenge was to the jurisdiction of the Arbitral Tribunal the Division Bench held that nonetheless a ground which was not initially raised in a petition to challenge the Arbitral award could not be permitted to be raised beyond the period of limitation that is prescribed. This, the Court observed was particularly in view of the fact that the grounds for challenging the Arbitral Award were circumscribed and restricted under the provisions of section 34 and that a specified period of limitation was enunciated. The power of the Court to condone the delay was restricted to a period of 30 days. The Division Bench held thus, in paras 14 and 17 of the judgment : " 14. The law has been well settled even under the Arbitration Act, 1940 that a ground not initially raised in the petition to challenge the award could not 4 be permitted to be subsequently raised by an amendment, if the application for amendment itself was beyond the period of limitation fixed for filing of the petition, challenging the award. 17. The Chamber Summons if it was intended to raise an independent ground of challenge to the arbitral award, could not have been entertained after the period of three months plus the grace period of 30 days as provided in the proviso to sub-section (3) of section 34. If, on the other hand, it was not intended to raise an independent ground on the basis that the petition itself contained the ground, the chamber summons was wholly unnecesary as necessary amplications could be put forward during submissions. Looked at either way, the chamber summons was rightly dismissed. " 6. In fact, it would be necessary to note that the amendment that is sought to be effected in the present case is not even to the grounds contained in an application under section 34 but, to the Memo of Appeal. In view of the Judgment of the Division Bench the application for amendment cannot be allowed. It has not been disputed before this Court that the grounds of appeal which are now sought to be advanced were not originally raised in the Arbitration Petition under section 34 of the Act. Having regard to the bar of limitation, the Civil Application would have to be rejected and it is accordingly rejected. 7. Learned counsel appearing on behalf of the applicants has however, requested the Court to grant an adjournment for a period of six weeks 5 before the appeal is listed for final hearing in order to enable the applicants to canvas the correctness of the view of the Division Bench in appropriate proceedings. The request is not opposed. In the circumstances, the hearing of the appeal shall be posted to 20th February, 2009. { Dr.D.Y.Chandrachud, J } { Dr.D.Y.Chandrachud, J } { Dr.D.Y.Chandrachud, J } .P