abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1064 OF 2008 IN ARBITRATION PETITION NO. 424 OF 2006 Union of India .. Petitioner V/s Tolani Shipping Co. Ltd. .. Respondent And M/s Shaw Wallace Co. .. Proposed Respondent Ms.S.I. Shah for the petitioner, in support. Mr.M.S. Doctor with Mr.Pritesh Rajgor i/b DSK Legal for the proposed respondent. CORAM : D.G. KARNIK, J. DATE : 9TH APRIL 2009 P.C. P.C. P.C. : 1. This chamber summons is taken out by the petitioner for amending the original petition filed by it on 14th July 2006 under section 34 of the Arbitration and Conciliation Act, 1996 (for short "the Arbitration - 2 - Act"). By this chamber summons, the petitioner seeks to add "M/s Shaw Wallace Co." (not "M/s Shaw Wallace & Co. Ltd.") as a party respondent and also to add certain grounds for challenging the award dated 10/16th March 2006. 2. A charter party contract was entered into between the petitioner and the respondent on 19th April 1995. Under the contract, the respondent claimed certain sums of money which claim was disputed by the petitioner. The dispute between the petitioner and the respondent was referred to arbitration. An award was passed on 15th April 1999 which was challenged by the petitioner by filing Arbitration Petition No.340 of 1999. The petition was allowed and the award was set aside on a technical ground. The matter was again referred for fresh arbitration and a fresh award was passed by the Arbitral Tribunal on 10/16th March 2006. That award is impugned by the petitioner in this petition wherein the present chamber summons is taken out for amendment. 3. Learned counsel for the petitioner submitted that the petitioner had appointed "Shaw Wallace Co." (hereinafter referred to as "the proposed respondent") as an handling agent and the proposed respondent, as the handling agent was responsible for discharge and taking - 3 - delivery of the cargo from the respondent. This fact was known to the respondent and, therefore, the respondent ought to have joined the proposed respondent as a party to the arbitration petition. The petitioner further submitted that the respondent had joined the proposed respondent as a party in the earlier arbitration proceedings, but had failed to join it as a party respondent in the present arbitration proceedings. The proposed respondent was a necessary party before the Arbitral Tribunal and as it was not joined as a party before the Arbitral Tribunal, the petitioner was seeking to join the proposed respondent as respondent no.2 in the present petition by an amendment. 4. Per contra, learned counsel for the respondent submitted that the proposed respondent was not a party to the earlier arbitration proceedings and the contention that it was a party to the earlier arbitration proceedings was false to the knowledge of the respondent. He further submitted that assuming that the proposed respondent was a party to the earlier arbitration proceedings, that did not make it obligatory for the respondent to join the proposed respondent as party respondent no.2 in the present arbitration proceedings. He submitted that since the proposed respondent was not a party to the arbitration proceedings before the Arbitral Tribunal, he cannot be - 4 - joined as a party respondent in the application under section 34 of the Arbitration Act. He further submitted that the petitioner itself had filed the arbitration petition under section 34 of the Arbitration Act without joining the proposed respondent as a party respondent no.2 and rightly so. He further submitted that the proposed amendment cannot be allowed in view of the decision of a Division Bench of this Court in Vastu Invest & Holdings Pvt. Ltd. v. Gujarat Lease Financing Ltd. - 2001 Vol.103(2) Bom.L.R. 156. 5. As regards the first contention of the petitioner that the proposed respondent is a necessary party, the same is based upon the contention that the proposed respondent acted as an handling agent of the petitioner. In other words, the petitioner was the principal and the proposed respondent was its agent. Section 230 of the Indian Contract Act, 1872 says that in the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. If the proposed respondent was an agent of the petitioner, it cannot personally enforce the contract nor is it personally liable under the contract. In the circumstances, the respondent could not have made any claim against the proposed respondent in the arbitration proceedings. As such the proposed respondent was - 5 - neither a necessary nor a proper party to the arbitration proceedings. The contention of the petitioner that the proposed respondent was a necessary party to the arbitration proceedings is therefore rejected. 6. The contention of the petitioner that the proposed respondent was a party to the first arbitration proceedings is not factually correct. Learned counsel for the respondent invited my attention to the statement of claim filed by it in the first arbitration proceedings, a copy of which is at Exhibit-B to the affidavit in reply. It shows that the respondent had joined only the petitioner as the party respondent before the first Arbitral Tribunal. In its reply, however, the petitioner showed the name of the proposed respondent as respondent no.2 by hand and some employee of the proposed respondent also signed the reply as an agent of the petitioner herein in addition to the signature of the officer of the petitioner. By doing so, the proposed respondent did not become party to the first arbitration proceedings. Assuming that this conclusion is incorrect and the proposed respondent was a party to the first arbitration proceedings, that cannot compel him to join the proposed respondent as a party to the second arbitration proceedings. He could omit to join it as a party at its own risk. - 6 - 7. The impugned award is passed on 10/16th March 2006 and the present chamber summons is taken out on 21st July 2008 long after the expiry of the period of 3 months of limitation provided under sub-section (3) of section 34 of the Arbitration Act for challenging an award. Even the additional period of 30 days, which can be granted by the Court under the proviso to sub-section (3) of section 34 of the Arbitration Act, has expired. The petitioner could not have filed the petition under section 34 of the Arbitration Act on 21st July 2008 when it filed the chamber summons for joining the proposed respondent as a party, as such challenge would be barred by limitation under section 34 of the Arbitration Act. By the proposed amendment, the petitioner not only seeks to add the proposed respondent as a party respondent but also seeks to add additional grounds of challenge and that too after expiry of period of limitation for challenging the award. The said additional grounds of challenge cannot be allowed to be raised after the expiry of period of limitation. Without the additional grounds, no useful purpose would be served by merely joining the proposed respondent as an additional respondent. Further more, the petition against the additional respondent would also be barred by limitation as provided under section 34 of the Arbitration Act. In Vastu Invest & Holdings Pvt. Ltd. v. Gujarat Lease - 7 - Financing Ltd. (supra). a Division Bench in similar circumstances has held that an order passed by a Single Judge dismissing the chamber summons taken out after the expiry of the period provided under section 34(3) of the Arbitration Act was valid and proper. The Division Bench held that the appellant could not have been allowed to amend the arbitration petition after the expiry of the period for challenge provided under section 34(3) of the Arbitration Act. 8. Before I part, I must also refer to the casual manner in which the chamber summons has been drafted. The record discloses that "Shaw Wallace & Co. Ltd.", that is a company incorporated (or deemed to be incorporated) under the Companies Act, 1956 was acting as an agent for the petitioner. Who is proposed to be joined is not "Shaw Wallace & Co. Ltd." but "M/s Shaw Wallace Co." without stating whether the proposed respondent is a company or a firm or any other entity. In the body of the proposed amendment, also the same name "Shaw Wallace Co." is repeated at several places without mentioning its correct name, viz. "Shaw Wallace & Co. Ltd.". Though that is not a ground for rejecting the chamber summons, it is one of the circumstances I am inclined to take into consideration while awarding costs. - 8 - 9. In the circumstances, the chamber summons is dismissed with costs quantified at Rs.2,000/-. (D.G. KARNIK, J.)