# Municipal Corporation Moradabad v. M/S

- **Citation:** (2023) 6 ILRA 186
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-06-07
- **Case number:** Matters Under Article 227 No. 3243 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/municipal-corporation-moradabad-v-m-s-50444
- **Pages:** 7

## Headnote

(A) Constitution of India - Article 227 -
The Code of Civil Procedure, 1908 - Rule
27 of Order XLI - Production of additional
evidence in Appellate Court , The
Arbitration and Conciliation Act 1996 -
Section 16 - Amendments to the Code of
Civil Procedure, 1908 in its application to
commercial
disputes
,
Section
19
-
Determination of rules of procedure,
Section 34 - Application for setting aside
arbitral awards, Section 37 - Appealable
orders, Section 45 - Power of judicial
authority to refer parties to arbitration -
conditions contained in an Arbitration
Agreement are not binding on a person
who is not a party to the Agreement.(Para
-17)

Application by petitioner-applicant before commercial
court - for impleading Hydroair Pvt. Ltd. as a
respondent - Arbitration Case - not a party to
arbitration agreement - rejected by Commercial court
- validity of an order under challenge - Commercial
Court rejected application for additional evidence -
citing Section 34 of the Arbitration and Conciliation
Act - an Arbitration Award can only be set aside if the
applicant proves the Arbitral Tribunal's record - that
Award is liable to be set aside - on ground mentioned
in Section 34. (Para - 2,11)

HELD:-Rightly
rejected
application
for
impleadment by Commercial Court, Accord
Hydroair Pvt. Ltd., not party to Arbitration
Agreement, indicating no illegality. Order passed
by Commercial Court in Arbitration Case so far
as it rejects the prayer made by the petitioner
for adducing additional evidence in the form of
copies
of
Arbitration
Awards,
quashed.
Application for submission of additional evidence
in the form of the five arbitration awards, which
have already been filed by the petitioner,
allowed. Commercial Court to expeditiously
decide
Section
34
arbitration
application,
considering additional evidence and allowing
respondents to rebutte it . (Para -18,28)

Petition Partly allowed. (E-7)

List of Cases cited:

## Text

186 INDIAN LAW REPORTS ALLAHABAD SERIES
aforesaid Writ Petition is dismissed for the
reason that the service rendered by the
petitioner as seasonal collection was not on
any temporary or permanent post, in
furtherance of an appointment made in
accordance with any Rules framed by the
Government.

54. The Special Appeal (D) No. 307
of 2022 is allowed and the judgment and
order dated 23.09.2022 passed in Writ A
No. 6005 of 2022 is also set aside and the
aforesaid Writ Petition is dismissed.

55. Review Petition No. 117 of 2022
is dismissed.

56. The Special Appeal (D) No. 84 of
2023 is hereby allowed and the judgment
and order dated 13.09.2022 passed in Writ
A No. 4305 of 2021 is also set aside and the
aforesaid Writ Petition is dismissed.

57. There will be no order as to costs.
----------
(2023) 6 ILRA 186
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.06.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matters Under Article 227 No. 3243 of 2023

Municipal Corporation Moradabad
 ...Petitioner
Versus
M/S
A
2
Z
Waste
Management
(Moradabad) Ltd. & Anr. ...Respondents

Counsel for the Petitioner:
Santosh Srivastava

Counsel for the Respondents:
Suyash Gupta, Indu Prakash Singh
(A) Constitution of India - Article 227 -
The Code of Civil Procedure, 1908 - Rule
27 of Order XLI - Production of additional
evidence in Appellate Court , The
Arbitration and Conciliation Act 1996 -
Section 16 - Amendments to the Code of
Civil Procedure, 1908 in its application to
commercial
disputes
,
Section
19
-
Determination of rules of procedure,
Section 34 - Application for setting aside
arbitral awards, Section 37 - Appealable
orders, Section 45 - Power of judicial
authority to refer parties to arbitration -
conditions contained in an Arbitration
Agreement are not binding on a person
who is not a party to the Agreement.(Para
-17)

Application by petitioner-applicant before commercial
court - for impleading Hydroair Pvt. Ltd. as a
respondent - Arbitration Case - not a party to
arbitration agreement - rejected by Commercial court
- validity of an order under challenge - Commercial
Court rejected application for additional evidence -
citing Section 34 of the Arbitration and Conciliation
Act - an Arbitration Award can only be set aside if the
applicant proves the Arbitral Tribunal's record - that
Award is liable to be set aside - on ground mentioned
in Section 34. (Para - 2,11)

HELD:-Rightly
rejected
application
for
impleadment by Commercial Court, Accord
Hydroair Pvt. Ltd., not party to Arbitration
Agreement, indicating no illegality. Order passed
by Commercial Court in Arbitration Case so far
as it rejects the prayer made by the petitioner
for adducing additional evidence in the form of
copies
of
Arbitration
Awards,
quashed.
Application for submission of additional evidence
in the form of the five arbitration awards, which
have already been filed by the petitioner,
allowed. Commercial Court to expeditiously
decide
Section
34
arbitration
application,
considering additional evidence and allowing
respondents to rebutte it . (Para -18,28)

Petition Partly allowed. (E-7)

List of Cases cited:

1. Chloro Controls (I) P. Ltd. Vs Severn Trent
Water Purification Inc. & ors. , AIR 2012 SC
(Supp.) 1017
6 All. Municipal Corporation Moradabad Vs. M/S A2Z Waste Management (Moradabad) Ltd. &
 Anr.
187
2. Panipat-Jalandhar NH-1 Tollway Pvt. Ltd. Vs
N.H.A.I., Arbitration Petition No. 820 of 2021

3. A.P. Transco Vs Sai Renewable Power Pvt.
Ltd., (2011) 11 SCC 34

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1.
The
petitioner
has
filed
a
supplementary affidavit, which is taken on
record.

2. Heard Sri Pankaj Srivastava and Sri
Santosh Srivastava, Advocates for the
petitioner, Sri Suyash Gupta and Sri Arun
Gaur, Advocates for the respondent no. 1
and Sri Indu Prakash Singh, learned
counsel for the respondent no. 2, and
perused the records.

3. By means of the instant petition
filed under Article 227 of the Constitution
of India the petitioner has challenged the
validity of the order dated 23.05.2023
passed by the Commercial Court No. 2,
Lucknow, in Arbitration Case No. 923 of
2019,
whereby
an
application
for
impleadment of M/s Accord Hydroair Pvt.
Ltd. as a respondent to the case, filed by the
petitioner-applicant before the Commercial
Court, has been rejected.

4. Briefly stated, facts of the case are
that the petitioner had entered into a
Tripartite-Agreement dated 28.04.2010
with the respondent no. 1 and respondent
no. 2 to ensure scientific disposal of solid
waste for a period of 30 years. It was a
specific condition in the Agreement that
the concessionaire shall not assign in
favour of any person the Agreement or
rights, benefits and obligations thereunder,
save and except with prior consent of
U.L.B. (Urban Local Body), i.e. Municipal
Corporation, Moradabad. However, the
concessionaire
entered
into
a
memorandum of understanding dated
02.07.2013 with M/s Accord Hydroair Pvt.
Ltd. and in violation of the conditions of
the
Tripartite
Agreement
dated
28.04.2010, it assigned its obligations
under the Agreement dated 28.04.2010 to
M/s Accord Hydroair Pvt. Ltd. The
memorandum of understanding dated
02.07.2013 entered into between the
respondent no. 1 and M/s Accord Hydroair
Pvt. Ltd. makes a reference to the
Tripartite Agreement dated 28.04.2010
executed between the parties to the present
case and the scope of work makes a
reference to the Concession Agreement in
question.

5. It appears that the Memorandum of
Understanding dated 02.07.2013 has been
issued in execution of works, which were
to be performed under the Tripartite
Agreement dated 28.04.2010. It is one of
the conditions of the Agreement dated
02.07.2013 that M/s Accord Hydroair Pvt.
Ltd. shall be entitled to receive payments
from the respondent no. 2 against the
works done by respondent no. 1 under the
Tripartite Agreement dated 28.04.2010.

6. Certain disputes occurred between
M/s Accord Hydroair Pvt. Ltd. and the
respondent
no.
1,
regarding
which
Arbitration proceedings were initiated.
The respondent no. 2 was also made a
party in the Arbitration proceedings. The
respondent
no.
2
challenged
it's
impleadment by filing an application
under Section 37, which was rejected by
the Arbitral Tribunal. The respondent no. 2
challenged the order of rejection by filing
Appeal No. 674 of 2014 under Section 37
of
the
Arbitration
Act
before
the
Commercial Court at Lucknow.
188 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Certain disputes arose between the
parties in execution of the Agreement dated
28.04.2010 also, regarding which separate
Arbitration proceedings were initiated by
the respondent no. 1, which culminated into
an
award
dated
03.09.2019
by
the
Arbitrator. The petitioner has challenged
the Arbitration award dated 03.09.2019 by
filing an application under Section 34 of
the Arbitration and Conciliation Act 1996,
which has been registered as Arbitration
Case No. 923 of 2019 and is pending
before the Commercial Court No. 2,
Lucknow.

8. The petitioner filed an application
for consolidation of the proceedings of the
application under Section 34 filed by it
with the appeal under Section 37, which
was filed against the order of rejection of
the application of respondent no. 2 for
being deleted from the array of parties in
the Arbitration proceedings between the
respondent no. 1 and M/s Accord Hydroair
Pvt. Ltd. The application was rejected by
means of an order dated 20.03.2023. The
petitioner had challenged the order before
this Court by filing petition under Article
227 of the Constitution of India bearing
No. 1551 of 2023, which was dismissed by
means of an order dated 29.03.2023.

9. After dismissal of the earlier
petition
under
Article
227
of
the
Constitution of India by this Court by
means of order dated 29.03.2023, the
petitioner
filed
an
application
for
impleadment of M/s Accord Hydroair Pvt.
Ltd. before the Commercial Court. During
pendency of the application, the petitioner
challenged the order dated 29.03.2023
before the Supreme Court by filing
S.L.P.(Civil) No. 7327 of 2023. The
petitioner
filed
an
application
for
impleadment of M/s Accord Hydroair Pvt.
Ltd. in S.L.P. also, i.e., I.A. No. 72892 of
2023. In the aforesaid application, the
petitioner
filed
an
application
for
impleadment of M/s Accord Hydroair Pvt.
Ltd. as a respondent. The application has
been rejected by means of an order dated
23.05.2023
holding
that
"from
the
Agreement dated 28.04.2010 it is clear
that it was executed between Moradabad
Municipal Corporation (the petitioner),
Construction and Design Services (the
respondent no., 2) and M/s A 2 Z Waste
Management Moradabad Pvt. Ltd. (the
respondent no. 1). M/s Accord Hydroair
Pvt. Ltd. is not a party to this Agreement,
so M/s Accord Hydroair Pvt. Ltd. cannot
be impleaded in the present petition under
Section
34
of
the Arbitration
and
Conciliation Act 1996 for setting aside the
award dated 03.09.2019 passed by the
learned Arbitrator."

10. The aforesaid S.L.P. was dismissed
by means of an order dated 25.04.2023
passed by the Hon'ble Supreme Court and
while dismissing the S.L.P., the pending
applications also stood disposed of. Thus,
the application for impleadment of M/s
Accord Hydroair Pvt. Ltd. filed in the
S.L.P. was not allowed by the Hon'ble
Supreme Court.

11.
The
Commercial
Court
has
rejected the application for filing additional
evidence for the mere reason that Section
34 of the Arbitration and Conciliation Act
provides that an Arbitration Award may be
set aside by the Court only if the party
making the application establishes on the
basis of the record of Arbitral Tribunal that
the Award is liable to be set aside on the
ground mentioned in Section 34.

12. Sri Pankaj Srivastava, the learned
Counsel for the petitioner, has relied on a
6 All. Municipal Corporation Moradabad Vs. M/S A2Z Waste Management (Moradabad) Ltd. &
 Anr.
189
judgment of the Hon'ble Supreme Court in
the case of Chloro Controls (I) P. Ltd. v.
Severn Trent Water Purification Inc. and
others, AIR 2012 SC (Supp.) 1017. This
was a case arising out of International
Commercial Arbitrations, for which the
statutory provisions are contained in Part-2
of the Arbitration and Conciliation Act,
1996, whereas the arbitration in question
falls within the purview of Part-1 of the
Arbitration and Conciliation Act, 1996,
which contains provisions for arbitrations,
other than those dealt with by the
provisions contained in Part-2 of the Act. In
Chloro Control (supra), while dealing with
the provisions contained in Section 45
falling within Part-2 of the Act, the Hon'ble
Supreme Court dealt with the following
questions:

1.1What is the ambit and scope of
Section
45
of
the
Arbitration
and
Conciliation Act, 1996 (for short "the 1996
Act")?

1.2
Whether
the
principles
enunciated in the case of Sukanya Holdings
Pvt. Ltd. v. Jayesh H. Pandya [(2003) 5
SCC 531 : (AIR 2003 SC 2252 : 2003 AIR
SCW 2209)] is the correct exposition of
law?

1.3 Whether in a case where
multiple agreements are signed between
different parties and whether some contain
an arbitration clause and others don't and
further the parties are not identically
common in proceedings before the Court
(in a suit) and the arbitration agreement, a
reference of disputes as a whale or in part
can be made to the arbitral tribunal, more
particularly, where the parties to an action
are claiming under or through a party to
the arbitration agreement?

1.4
Whether
bifurcation
or
splitting of parties of causes of action
would be permissible, in absence of any
specific provision for the same, in the 1996
Act?"

13. The aforesaid questions were
answered by the Hon'ble Supreme Court in
the following manner: -

"167. Section 45 is a provision
falling under Chapter I of Part II of the
1996 act, which Code is a self-contained
Code. The expression 'person claiming
through or under' would mean and take
within its ambit multiple and multi-party
agreements, though in exceptional case.
Even non-signatory parties to some of the
agreements can pray and be referred to
arbitration provided they satisfy the prerequisites under Sections 44 and 45 read
with Schedule I. Reference of non-signatory
parties is neither unknown to arbitration
jurisprudence nor it is impermissible.

168. In the facts of a given case,
the Court is always vested with the power
to delete th name of the parties who are
neither necessary nor proper to the
proceedings before the Court. In the cases
of group companies or where various
agreements
constitute
a
composite
transaction like mother agreement and all
other agreements being ancillary to and for
effective and complete implementation of
the Mother Agreement, the court may have
to make reference to arbitration even of the
disputes existing between signatory or even
non-signatory
parties.
However,
the
discretion of the Court has to be exercised
in exceptional, limiting, befitting and cases
of necessity and very cautiously."

14. It is not the case of the parties that
M/s A 2 Z Waste Management Moradabad
and M/s Accord Hydroair Pvt. Ltd.
constitute a group of companies and it is
not that the Agreement dated 26.04.2010
was executed as the Mother Agreement.
190 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Even in matters governed by
Section 45 of the Arbitration Act the
Hon'ble Supreme Court did not lay down
any principle for impleadment of parties,
who are not parties to the Arbitration
Agreement. Therefore, I am of the
considered view that the judgment in the
case of Chloro Controls (I) Pvt. Ltd. (supra)
does not help the petitioner in any manner.

16. The next judgment placed by the
learned counsel for the petitioner has been
rendered by the Delhi Court in the case of
Panipat-Jalandhar NH-1 Tollway Pvt. Ltd.
v. National Highways Authority of India,
Arbitration Petition No. 820 of 2021,
decided on 17.01.2022. This was a petition
under Section 11(6) of the Arbitration and
Conciliation Act 1996 and the issue of
impleadment of a party, who is not a party
to the Arbitration Agreement, was neither
involved nor decided in the aforesaid case
and, therefore, this judgment also does not
help the petitioner.

17. In A.P. Transco v. Sai Renewable
Power Pvt. Ltd., (2011) 11 SCC 34, the
Hon'ble Supreme Court held that the
conditions contained in an Arbitration
Agreement are not binding on a person who
is not a party to the Agreement.

18. As M/s Accord Hydroair Pvt. Ltd.
is not a party to the Arbitration Agreement,
the Commercial Court has rightly rejected
the application for impleadment of M/s
Accord Hydroair Pvt. Ltd. and I find no
illegality in the order dated 23.05.2023,
which may warrant interference of this
Court.

19. Another prayer made by the
petitioner in the same application was for
taking on record some documents as
additional evidence. The documents sought to
be placed in additional evidence are copies of
Arbitration Awards in five Arbitration cases
between the respondent no. 1 and respondent
no. 2, both of whom are already parties to the
proceedings. Since the petitioner was not a
party to those Arbitration proceedings, it
claims that the Awards were not in its
knowledge.

20. Rule 27 of Order XLI of the Code of
Civil Procedure, as it applies to the State of
Uttar Pradesh, provides as follows: -

"27. Production of additional
evidence in Appellate Court.-(1) The
parties to an appeal shall not be entitled to
produce additional evidence, whether oral
or documentary, in the Appellate Court. But
if-

(a) the Court from whose decree
the appeal is preferred has refused to admit
evidence which ought to have been
admitted, or

(aa) the party seeking to produce
additional
evidence,
establishes
that
notwithstanding
the
exercise
of
due
diligence, such evidence was not within his
knowledge or could not, after the exercise
of due diligence, be produced by him at the
time when the decree appealed against was
passed, or]

(b) the evidence sought to be
adduced by a party to the appeal is
evidence, which after exercise of due
diligence, was not within his knowledge or
could not be produced by him at the time
when the decree under appeal was passed
or made, or; and

(c) the Appellate Court requires
any document to be produced or any
witness to be examined to enable it to
pronounce judgment, or for any other
substantial cause,
6 All. Municipal Corporation Moradabad Vs. M/S A2Z Waste Management (Moradabad) Ltd. &
 Anr.
191

the Appellate Court may allow
such evidence or document to be produced
or witness to be examined.

(2) Whenever additional evidence
is allowed to be produced by an Appellate
Court, the Court shall record the reason for
its admission."

21. Although the application under
Section 34 of Arbitration and Conciliation
Act, 1996 is not an "Appeal" in the strict
sense of the term, in effect the proceedings
under the aforesaid provision are in the
nature of and are akin to an Appeal.

22. The provisions of the Code of
Civil Procedure are applicable to the
proceedings before the Commercial Courts
and come of the provisions of the Code
applicable to the Commercial Courts have
been amended for their application to the
Commercial Courts Act only. The relevant
provision in this regard is contained in
Section 16 of the Commercial Courts Act,
2015, which provides that: -

"16. Amendments to the Code of
Civil Procedure, 1908 in its application to
commercial disputes.-

(1) The provisions of the Code of
Civil Procedure, 1908 (5 of 1908) shall, in
their application to any suit in respect of a
commercial dispute of a Specified Value,
stand amended in the manner as specified in
the Schedule.

(2) The Commercial Division and
Commercial Court shall follow the provisions
of the Code of Civil Procedure, 1908 (5 of
1908), as amended by this Act, in the trial of
a suit in respect of a commercial dispute of a
specified value.

(3) Where any provision of any
Rule of the jurisdictional High Court or any
amendment to the Code of Civil Procedure,
1908 (5 of 1908), by the State Government is
in conflict with the provisions of the Code of
Civil Procedure, 1908 (5 of 1908), as
amended by this Act, the provisions of the
Code of Civil Procedure as amended by this
Act shall prevail."

23. An appendix appended to the
Commercial
Courts
Act
contains
the
amended provisions of the Code of Civil
Procedures which will be applicable to
Commercial Courts, but it does not contain
any amendments made in Order XLI Rule 27
of the Civil Procedure Code, 1908. Therefore,
Order XLI Rule 27 of the Code applies to the
proceedings before the Commercial Courts
without any restriction.

24. Although Section 19 of the
Arbitration and Conciliation Act provides that
the Arbitral Tribunal shall not be bound by
the Code of Civil Procedure, but it does not
prohibit applicability of the principles of the
Civil Procedure on the Commercial Courts.

25. The petitioner is seeking to file
copies of the arbitration awards passed in
Arbitration
proceedings
between
the
respondent no. 1 and the respondent no. 2.
The petitioner was not a party to the
arbitration proceedings or the aforesaid
awards passed therein and the petitioner
claims that the awards were not within its
knowledge and, therefore, the same could
not be produced by it before the Arbitrator.

26. The peculiar facts of the present
case appear to be covered by the provision
contained in Sub-Rule (aa) of Rule 1 of
Order XLI of the Code of Civil Procedure
in which the petitioner should be granted to
submit additional evidence.

27.
In
view
of
the
aforesaid
submission, I am of the view that the order
dated
23.05.2023
passed
by
the
192 INDIAN LAW REPORTS ALLAHABAD SERIES
Commercial Court No. 2, so far as it rejects
the prayer made by the petitioner for
adducing additional evidence in the form of
copies of Arbitration Awards, is not
sustainable in law and it is liable to be
quashed.

28. In view of the aforesaid discussion,
the petition is partly allowed. The order
dated 23.05.2023 passed by the Commercial
Court No. 2, Lucknow in Arbitration Case
No. 923 of 2019 so far as it rejects the prayer
made by the petitioner for adducing
additional evidence in the form of copies of
Arbitration Awards, is quashed and the
application for submission of the additional
evidence in the form of the five arbitration
awards, which have already been filed by the
petitioner, is allowed. The Commercial Court
shall proceed to decide the application under
Section 34 of the arbitration and Conciliation
Act expeditiously, in accordance with the law,
after taking into consideration the aforesaid
additional evidence and after giving an
opportunity to the respondents to adduce
evidence in rebuttal of the additional
evidence.
----------
(2023) 6 ILRA 192
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.05.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 No. 4403 of 2023

Siddarth Wardhan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ashish Kumar Singh, Anuj Pandey

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections - 125 & 482 - Domestic
Violence Act, 2005 - Section - 12: -
Application U/s 482 - challenging the order of
Family Court, allowing the application of his wife
moved u/section 125 of Cr.P.C. to pay Rs.
18,000/- per month as maintenance - on the
ground that fixation of such high amount is
causing great hardship to the applicant-husband
- Quantum of maintenance - court finds that,
relation of applicant and his wife became
strange and he was not interested to keep her
wife and he wants to marry with another
woman - moreover, wife filed a case u/section
12 of Domestic Violence Act, wherein Trial court
passed an order granting maintenance of Rs.
42,000/- per month, but said amount is not paid
by the applicant which shows his malafide
intention - Held, the provisions of section 125
Cr.P.C. are beneficial provisions which are
enacted to stop the vagrancy of a destitute wife
and to provide some succour to them, who are
entitled to get the maintenance which has been
wrongly denied - Applicant is serving in a
multinational company and earning Rs. 88 lakh
rupees per annum as salary, thus, the amount
fixed by trial court as maintenance cannot be
said to be excessive or disproportionate -
hence, impugned order does not require any
interference - application is liable to be
dismissed.(Para - 6, 7)

Application u/s 482 Dismissed. (E-11)

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard learned counsel for the
applicant and Shri Diwakar Singh, the
learned A.G.A. for the State.

2. The present application under
Section 482 Cr.P.C. has been filed by the
applicant for quashing of the order dated
12.04.2023 passed by the court of learned
Additional Principal Judge, Family Court
No. 1, Lucknow in Criminal Case No. 1961
of 2022, Smt. Shaleeni Singh Vs. Siddarth