Whether new case or new defence can be raised before court if it was not raised before arbitrator?

The Supreme Court in the case of MSK Projects (I) (JV) Ltd. (supra) has held that a new case or a defence not raised before the Arbitrator, cannot be considered by the Court under Section 34 or Section 37 of the Act. In that case, a claim was made by a concessionaire, under the toll agreement. It was contended that the concessionaire had suffered loss on account of delay in issuance and implementation of notification by the State, barring the use of the old route. The award of the Arbitrator was set aside by the Courts, on the ground that there was no clause in the agreement for State to issue such a notification. The Supreme Court held that the award could not have been set aside, as such a plea about absence of a clause in the agreement, was not raised before the Arbitrator.

IN THE HIGH COURT OF BOMBAY AT GOA

Appeal Under Arbitration Act No. 8 of 2016

Decided On: 10.04.2018

Titagarh Wagons Limited Vs. Chowgule and Company Private Limited

Hon'ble Judges/Coram:

C.V. Bhadang, J.

Citation: 2018(4) MHLJ 638

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Whether party can be permitted to set up new case or new cause of action by amendment of plaint?

The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred: Weldon v. Neale. 19 Q.B.D. 394 But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: see Charan Das v. Amir Khan L.R. 47 IndAp 255 and L. J. Leach and Company Ltd. v. Jardine Skinner and Co. MANU/SC/0009/1957 : [1957]1SCR438

8. The Principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes [Cropper v. Smith] and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended Kisandas Rupchand v. Rachappa Vithoba approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil.

9. The expression cause of action in the present context does not mean very fact which it is material to be proved to entitle the plaintiff to succeed as was said in Cooke v. Gill in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property corporation Ltd. and it seems to us to be the only possible view to take. Any other view would make the rule futile.

The words new case have been under stood to mean new set of ideas : Dornan v. J. W. Ellis and Co. Ltd. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 18 of 1963

Decided On: 10.09.1965

A.K. Gupta and Sons Vs. Damodar Valley Corporation

Hon'ble Judges/Coram:

A.K. Sarkar, Raghubar Dayal and V. Ramaswami, JJ.

Citation: AIR 1967 SC 96.

The Judgment of Sarkar and Ramaswami JJ. was delivered by Sarkar J. Raghubar Dayal J. delivered a dissenting Opinion.

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Whether a party can be allowed to set up a new case by amendment of pleading?

A  party is not allowed to set up a new case or a new  cause
of action by amendment, but it is well recognised that where
the  amendment does not constitute the addition  of  a  new
cause of action or raise a new case,, but amounts to no more
than a different or additional approach to the facts already
on the record, the amendment will be allowed even after  the
expiry  of  the  statutory  period  of   limitation.  The
expression  "new cause of action" in this context  means,  a
new claim made on a new basis constituted by new facts,  and
"new case" means a new set of ideas.

Supreme Court of India

A. K. Gupta And Sons vs Damodar Valley Corporation 

on 10 September, 1965

Equivalent citations: 1967 AIR 96, 1966 SCR (1) 796

BENCH:
SARKAR, A.K.
DAYAL, RAGHUBAR
RAMASWAMI, V.


Code  of Civil Procedure (Act V of 1908), s. 153 0. 2  r.  2
and 0. 6, r.   17--Amendment of plaint-When may be allowed.

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