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TMI Blog2022 (3) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... dment in the Counterclaim itself was not relevant for the adjudication, there was no question of proceeding any further in inviting evidence etc. with respect to the reports - The submission is based upon the misreading and misrepresentation of the said paragraph, in isolation bereft of preceding and succeeding paragraphs. The same is accordingly rejected. The application deserves to be rejected and is accordingly rejected. - M.A. Diary No.20972 of 2021 In Civil Appeal No.9847 of 2014 - - - Dated:- 15-3-2022 - VIKRAM NATH And M. M. SUNDRESH , JJ. JUDGMENT VIKRAM NATH , J. 1 Civil Appeal No.9847 of 2014 was allowed vide order dated 17.10.2014 whereby Justice S.S. Nijjar, a former Judge of this Court was appointed as sole Arbitrator to arbitrate upon the disputes between the parties. The said order is reproduced below: Leave granted. Heard Mr. Kapil Sibal, learned senior counsel appearing for the petitioner and Mr. Anupam Lal Das, learned counsel for respondent no.1. In the course of hearing, learned counsel for the parties very fairly submitted that they have no objection if a former Judge of this Court is appointed as a Sole Arbitrator to arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 160 of the award. It is for this reason that the present application has been filed for appointment of Sole Arbitrator. 5. According to the respondent applicant, the learned Arbitrator could not adjudicate upon the MECON report, as it required further evidence to be recorded, and soon after delivering the award, on 15.02.2021, the learned Arbitrator died on 26.03.2021. 6. Learned Counsel for the applicant, ECL during the course of the arguments not only requested for appointment of Arbitrator with respect to the contents of the paragraph 160 of the award but raised a further issue relating to Section 33 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 1996 Act ) for requiring correction in the computation of the rent payable to the applicant ECL for the period March 2016 till October 2016 which was inadvertently left out by the learned Arbitrator while giving the award. Reference was made to paragraphs 126 to 130 and 132 of the award. It is also submitted that although limitation for moving an application under Section 33 is 30 days but in the present case as the limitation has stopped running and stood extended by the orders passed by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is not a whisper in the application for direction regarding the issue raised under Section 33. Such a plea cannot be raised during the course of the arguments by way of oral or written submissions. viii) Even otherwise no correction as raised was required inasmuch as no computation was undertaken by the learned Arbitrator and the amount awarded as rent was the same as claimed by the applicant ECL. Even on merits such plea was not tenable. 8. Having considered the submissions, we now proceed to analyse both the contentions of the applicant. 9. Paragraph 160 of the award cannot be read in isolation. It was a part of the award dealing with the Application for amendment of counter claim filed by respondentECL. The award carried the above subtitle before paragraph 157. Paragraph 160 contains mere submissions advanced on behalf of the appellant/claimant. MECON report was called with respect to the amendment of the counter claim regarding expenses required for putting the plant into running condition. After deliberating upon the said amendment, at the end of paragraph 161, the conclusion was that the application for amendment stood dismissed. Thus, the paragraphs 157 to 161 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession as there was no agreement on the determination of WDV of the Plant. It has come in evidence that in four year's time the Plant and machinery had deteriorated considerably as the Plant was lying idle. In view of the detailed submissions made in this regard, on behalf of the Claimant, which are noted at paragraphs 84 to 99 and the reply thereto on behalf of the Respondent, which are noted in paragraphs 104 till 112, it would not be possible to hold that the Claimant is solely responsible for the delayed delivery of possession to the Respondent. On the one hand Claimant was insisting on the basis of the Clause III(a) for the determination and payment of the WDV simultaneously to delivery of possession. On the other hand, Respondent had demanded delivery of possession much prior to the determination of the WDV. Even when the WDV was determined by the Respondent, it was at such a variance to the amount determined by the Claimant, making it impossible for the parties to reach a consensus on the WDV to be paid. In fact, as noticed earlier the Claimant had filed a Writ Petition No.20948 of 2012. In the Calcutta High Court seeking payment of WDV and handing over possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already filed its objection to the MECON report and also filed a report submitted by M/s AKB Power Consultants Pvt. Ltd. For consideration of these two reports, further evidence will have to be recorded on behalf of both the parties. 161. It is matter of record that the application for amendment was filed at the time when the Respondent was to commence its arguments. In my opinion that the application cannot be allowed at this stage. The amendment must be necessary for the purpose of determining the real question in controversy. As noticed above, the issuance of the NIT clearly demonstrates the intention of the respondent was to replace the old machinery and plant to Stoker Fired Boilers by Fluidised bed Combustion Boilers. Therefore, the condition of the old machinery as well as the question of plant being in a running condition had become irrelevant. For the reasons stated above, the application for amendment is dismissed as it will serve no useful purpose in determining the real questions in controversy between the parties. 10. By means of the said amendment, the ECL had claimed that the power plant should be put into running condition before handing over its posses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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