Mohammad Rafiq, J. - (1.) THIS writ petition has been filed by petitioner Rajasthan Rajya Path Parivahan Nigam assailing the order passed by Additional District Judge No. 5, Jaipur Metropolitan, Jaipur dt. 15.12.2012 by which the petitioner's application filed under Order 6 Rule 17 read with Section 151 of the Civil Procedure Code seeking to incorporate by way of amendment three new objections in the petition filed under Sec. 34 of the Arbitration and Conciliation Act, 1996, has been dismissed. Facts leading to present writ petition are that a notice -inviting -tender was issued by petitioner on 27.01.2005 for appointment of sole licensee for transportation of domestic articles/small commercial goods from one place to another through its fleet of 4000 buses. Respondent No. 3 -M/s. Bhagwati Enterprises submitted its tender in prescribed tender form along -with relevant documents. Petitioner sent a letter dt. 31.01.2005 to the respondent No. 3 to accept its offer requiring it to deposit a sum of Rs. 6,66,786/ - towards security amount and bank guarantee of Rs. 40,00,716/ -, in accordance with the conditions No. 4 and 18 of the notice inviting tender so that the agreement can be executed. The respondent No. 3 though deposited the security money and bank guarantee with the petitioner but vide its letter dt. 19,03.2005 conveyed that they have yet not received agreement terms, enabling them to execute it and initiate energizing the centers by providing aforesaid services immediately on allotment of office premises to them at the bus stands. The respondent No. 3 sent another letter dt. 23.03.2005 requesting the Petitioner to delete condition Nos. 29 and 30 from the prescribed proforma of agreement. The respondent No. 3 purchased non -judicial stamp of Rs. 100/ - at Indore and got the agreement in prescribed proforma typed on it and signed the same on 28.03.2005. According to petitioner, it was also signed by two persons of Indore at Indore. The agreement was sent to the petitioner for needful and same was signed by the Chairman of the petitioner -Corporation on 29.03.2005. It is alleged by the petitioner that when the file containing the agreement was received back in the office of the Chairman after his signatures by the Financial Adviser, who too was required to sign the same along -with the Executive Director (Administration) as witness, they noticed that a hand written note reading "valid goods permit is prerequisite and Clause Nos. 29 and 30 are not acceptable" was interpolated on page No. 7 of the agreement of the agreement by respondent No. 3 surreptitiously, which note was not there when the Chairman -cum -Managing Director of the Corporation signed the agreement. The Financial Adviser convened a meeting on 31.03.2005 with the Executive Director (Administration) and Executive Manager (Advertisement). The Proprietor of the respondent No. 3 firm also participated. He was confronted with the hand written note on page No. 7 of the agreement and required to submit fresh agreement in the prescribed proforma as the note was in contradiction to clauses No. 29 and 30 typed on page 6 of the agreement. However he was unwilling to withdraw it and wanted to execute the agreement only as per those terms and conditions. A letter dt. 01.04.2005 was therefore sent by the petitioner to the respondent No. 3 for submitting fresh agreement in the prescribed proforma within five days, followed by letters dt. 05.04.2005 and 06.04.2005 to the same effect.
(2.) THAT it was thereafter that when the respondents failed to sent fresh agreement in the prescribed proforma, Petitioner, vide its letter dt. 16.04.2005 cancelled the letter and later on forfeited the earnest money and security deposit by order dt. 22.02.2005. Respondent requested the petitioner by his letter dt. 03.05.2005 for appointment of an Arbitrator out of the panel suggested by them for adjudicating the dispute. The reply was sent by the Petitioner to respondent No. 3 on 24.05.2005 contending that in clause 29 of the agreement the Chairman of the petitioner -Corporation was named as Arbitrator, which was not accepted by the respondent who filed an application under Sec. 11 of the Act of 1996 before this Court. Petitioner contested the application on many grounds including on the ground that the contract was yet not concluded between the parties and therefore the application was not maintainable. The said objection was overruled by the Single Judge as nominee of the Chief Justice. Learned Single Bench of this Court vide its order dt. 16.04.2005 appointed respondent No. 2, a retired Judge of this Court, as sole Arbitrator. Petitioner challenged the aforesaid order by filing Special Leave Petition before the Supreme Court, which, on grant of leave, was partly allowed vide order dt. 10.12.2009. The Supreme Court, though upheld the appointment of respondent No. 2 as sole Arbitrator, but directed that the question whether or not the contract was concluded between the parties, could be raised by the Petitioner before the Arbitrator. Learned Sole Arbitrator rendered the award on 18.09.2011 for Rs. 653,20,86,367/ - along -with interest thereon at the rate of 12% per annum with effect from 10.01.2011 till its realization. Petitioner -Corporation filed objections under Sec. 34 of the Act of 1996 on 13.12.2011 before the Court of Additional District Judge No. 5, Jaipur Metropolitan. The respondent No. 3 submitted reply to the said objections to which the Petitioner submitted rejoinder on 15.10.2012. Application under Order 6 Rule 17 read with Section 151 CPC and Section 82 of the Act of 1996 was filed by the petitioner on 11.12.2012 seeking permission of the Court to add three new paras in its objection petition. Learned Additional District Judge, by his order dt. 15.12.2012, dismissed the aforesaid application. Feeling aggrieved thereby, petitioner has approached this Court in the present writ petition. Shri S.K. Bhattacharya, learned senior counsel appearing for Petitioner, has argued that learned Court below has failed to appreciate that the petitioner by application under Order 6 Rule 17 CPC merely wanted to add three more objections in the originally filed petition under Sec. 34 of the Act of 1996. The first objection was that learned sole Arbitrator has misconducted herself by not framing a specific issue on the question whether or not there was concluded contract between the parties and non -framing of such issue despite specific direction by the Hon'ble Supreme Court in its order dt. 10.12.2009 was a serious infirmity in the award. Another objection that the Petitioner wanted to incorporate by way of amendment was whether the award was not liable to be declared illegal and set aside for failure of the learned sole Arbitrator to decide the counter -claim on merits. Third and last objection which the Petitioner wanted to insert by way of amendment was whether adverse inference drawn by the learned sole Arbitrator against the Petitioner for not taking action against erring officials of the petitioner without the evidence of the concerned officers was not unjust and improper, because the Petitioner has taken disciplinary action against its employees and also made a complaint against concerned Advocate.
(3.) SHRI S.K. Bhattacharya, learned senior counsel, argued that the facts on which aforesaid three objections were founded were fully known to the respondent -claimant especially the objection about there being no concluded contract between the parties, which was the bone of the contention between the parties even before the learned Single Judge of this Court in proceedings under Sec. 11 of the Act of 1996. Learned Single Judge dismissed the said objection raised by the petitioner, who thereupon challenged the order of the learned Single Judge before the Supreme Court. The Supreme Court, while allowing the Civil Appeal against the judgment of learned Single kept this issue open by observing the question whether or not there was a concluded contract between the parties, can be raised before the Arbitrator. Learned senior counsel submitted that no prejudice would be caused to respondent -claimant even if the amendment as prayed for is allowed to be incorporated now. The Courts have been liberal in allowing the amendment wherever such amendment is necessary to decide the real controversy. No prejudice or injustice would be caused to the respondent if amendments are allowed. At the maximum, the respondents can be compensated by award of reasonable amount of money as costs, if at all it is shown that any inconvenience is caused to them due to delay.;