Delhi District Court
Union Of India vs M/S. Ved Prakash Mittal & Sons on 30 May, 2017
Page 1 of 9
IN THE COURT OF DR. NEERA BHARIHOKE, ADJ01 (SOUTH),
SAKET COURTS, NEW DELHI
ARBT. No.20636/16
Union of India
.............Petitioner
Versus
M/s. Ved Prakash Mittal & Sons
............Respondent
O R D E R:
1. Vide this order, I shall dispose of the issue of limitation in respect of filing the present petition under Sec.34 of Arbitration & Conciliation Act.
2. For determination of issue of limitation, it is relevant to note the following dates:
(a) Date of Award : 30.10.2015
(b) Date of receipt of Award : 07.11.2015
(c) Date of filing of application under
Sec.33 of Arbitration & Conciliation
Act by the petitioner : 16.11.2015
(d) Date of filing of application under
Sec.33 of Arbitration & Conciliation
Act by the respondent : 08.12.2015
ARBT. No.20636/16
Union of India
Vs.
M/s. Ved Prakash Mittal & Sons
Page 2 of 9
(e) Date of rejection of applications
of petitioner as well as respondent
filed under Sec.33 of Arbitration &
Conciliation Act : 14.12.2015
(f) Date of filing of present petition : 15.03.2016
3. Petitioner has argued that since the applications of petitioner as well as respondent filed under Sec.33 of Arbitration & Conciliation Act have been rejected on 14.12.2015 and the present petition having been filed on 15.03.2016, the same has been filed within limitation as it has been filed within three months of disposal of applications of petitioner as well as respondent filed under Sec.33 of Arbitration & Conciliation Act.
Petitioner has relied on the phraseology of Sec.34(3) which reads as "An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or if a request have been made under Sec.33, from the date on which that request had been DISPOSED OF by the arbitral tribunal" and petitioner has argued that since the petition has been filed within three months of disposal of the application under Sec.33 of Arbitration & Conciliation Act, the present petition has been filed within the period of limitation.
4. Petitioner has filed written submissions in support of its submissions. ARBT. No.20636/16 Union of India Vs. M/s. Ved Prakash Mittal & Sons Page 3 of 9 Petitioner has relied on the observations of Hon'ble High Court of Delhi in the matter titled Vindhya Telelinks Ltd. Vs. BSNL & Anr., 2003 (68) DRJ 50 where vide order dated 31.01.2003 while disposing Ex. No.144/2002, it was held that statutory period of three months as contemplated under Sec.34(3) will not start running till the application under Sec.33 is disposed of by the Arbitrator. Petitioner has also relied on observations of Hon'ble High Court of Delhi in the matter titled as Union of India & Anr. Vs. Saboo Minerals Pvt. Ltd., 2003 (17) DRJ 166 where it was observed while deciding FAO No. 240/2008 and C.M. No. 409/2001 on 18.07.2003 that: If the application under Sec.33 had been filed within time, the appellant will have been entitled to the exclusion of the time taken on pursuing the said application. In view of these submissions, Ld. Counsel for petitioner has argued that the present petition has been filed within period of limitation as it has been filed within three months of disposal of application under Sec.33 of Arbitration & Conciliation Act.
5. Ld. Counsel for respondent has argued that the present petition is time barred and has relied on law laid down in State of Arunachal Pradesh Vs. Damini Construction Co. (2007) 10 SCC 742 where it has been held that: "When the award dated 12.10.2003 was passed, the only ARBT. No.20636/16 Union of India Vs. M/s. Ved Prakash Mittal & Sons Page 4 of 9 option with the appellant was either to have moved an application under Sec.33 within three months as required under subSection 3 of Sec.34 or within the extended period of another 30 days. But instead of that a totally misconceived application was filed and there two the prayer was for review and with regard to mode of payment. The question of review was totally misconceived as there is no such provision in the Act for review of the award by the arbitrator and the clarifications sought for as to the mode of payment is not contemplated under Sec.33 of the Act. Therefore in this background the application was totally misconceived and the reply sent by the Arbitrator does not entitle the appellant a fresh cause of action so as to file an application under Sec.34(3) of the Act, taking it as the starting point of limitation from the date of reply given by the Arbitrator i.e. 10.04.2004."
6. Thus, it was argued by learned Counsel for respondent that filing of application under Sec.33 of Arbitration & Conciliation Act does not prevent the running of the time for filing the application under Sec.34 of Arbitration & Conciliation Act. The petitioner has argued as well as submitted in its written arguments that the said observations do not apply to the facts of the present case as in State of Arunachal Pradesh Vs. Damini Construction Co. (supra), the petitioner had ARBT. No.20636/16 Union of India Vs. M/s. Ved Prakash Mittal & Sons Page 5 of 9 filed review and had sought clarifications and not any application under Sec.33 of Arbitration & Conciliation Act and further the said clarifications were sought after the expiry of three months of passing of award.
7. However, respondent has also relied on law laid down in Prakash Atlanta, JV Vs. National Highways Authority of India, 227 (2016) DLT 691 (DB). Ld. Counsel for respondent has referred to the facts and the decision given by Ld. Single Judge in the matter titled National Highways Authority of India Vs. Prakash Atlanta, JV, while deciding OMP no.186/15 decided on 07.08.2015 against which the appeal was preferred and order was passed in the appeal titled Prakash Atlanta, JV Vs. National Highways Authority of India, 227 (2016) DLT 691 (DB).
8. The chronology of facts of National Highways Authority of India Vs. Prakash Atlanta, JV (supra), is given below:
(i) Date of passing of original Award : 05.08.2014
(ii) Both sides thereafter filed application under section 33 of the Act for correction of the Award.
(iii) Date of disposal of applications by arbitral tribunal : 13.09.2014 (application of petitioner for correction was dismissed and application of respondent for correction was allowed) ARBT. No.20636/16 Union of India Vs. M/s. Ved Prakash Mittal & Sons Page 6 of 9
(iv) Date of receipt of copy of amended Award : 07.11.2014
(v) Date of filing of objection under Sec.34 : 04.02.2015
9. Ld. Single Judge held the objections to have been filed within limitation as objections were filed within three months from date of disposal of application under Sec.33 of the Act and observed that limitation period will start from the date of disposal of the application filed under Sec.33 of the Act and not from date of receiving the corrected copy of the award. This order was challenged before Hon'ble Division Bench of High Court and the citation of the said appeal is Prakash Atlanta, JV Vs. National Highways Authority of India, 227 (2016) DLT 691 (DB). At this stage, it is pertinent to mention that the facts of the present petition are similar to the facts of Prakash Atlanta, JV Vs. National Highways Authority of India, (supra) rather in the present petition, the Ld. Arbitrator had rejected the applications of petitioner as well as respondent which they filed under Sec.33 of Arbitration & Conciliation Act.
10. In the matter of Prakash Atlanta, JV Vs. National Highways Authority of India, (supra), the Hon'ble Division Bench of Hon'ble High Court of Delhi discussed the issue of limitation and after quoting Sec.33 of Arbitration & Conciliation Act observed as: ARBT. No.20636/16
Union of India Vs. M/s. Ved Prakash Mittal & Sons Page 7 of 9 "21. The Ld. Single Judge has reasoned that notwithstanding a situation contemplated by a request made to correct any computation errors, clerical or typographical errors or errors of a similar kind and a request made to make an additional award by pointing to the Arbitration Tribunal that certain claims presented have been omitted from the arbitral award; and the latter making a reference to an additional arbitral award but the former not, the doctrine of merger would necessitate limitation commencing from the date when the additional award or the corrected/amended award is made.
22. The error by the Ld. Single Judge is to overlook the principle of law, that if legislative intention is clear, other provisions of the same enactment have not to be looked into, unless a conflict arises. The rule of harmonious construction would then come into play and the two provisions have to be harmoniously read.
Meaning thereby, the territory occupied by the two has to be delineated with precision.
23. But the Ld. Single Judge has not brought out any conflict. On the contrary, we find no conflict. Para(a) of SubSection(1) of Section 33 contemplates a request made to an Arbitral Tribunal concerning computation, clerical, typographical and other errors of the kind in an award. Para (b) of the said SubSection contemplates a request made to the Arbitral Tribunal to give an interpretation of a specific point or p art of the award. Subsection (2) vests the Arbitral Tribunal the jurisdiction to consider the request made under Subsection (1) and to make the correction or give interpretation, which as per Subsection (2) Shall form p art of the arbitral award". Thus, the legislator has not contemplated any form part of the award to be made. The legislator has provided for the said decision to be forming part of the arbitral award. SubSection (3) confers a suo moto power on the Arbitral Tribunal to correct an error of the kind contemplated by clause (a) of Subsection (1) to be made. SubSection (4) and (5) deal with a situation where an award has omitted to consider claims presented and empowers the Arbitral Tribunal to make an additional award. Since a time limit prescribed under subSection (7) simply imports the requirement of Section 31 ARBT. No.20636/16 Union of India Vs. M/s. Ved Prakash Mittal & Sons Page 8 of 9 which are applicable to an award to an order correcting or interpreting an arbitral award or making an additional arbitral award. We fail to understand as to in what manner interpretation of subSection (3) of Section 34 of the Act, which has a bearing on the date from which limitation would run to file an application under subSection (1) of Section 34 of the Act, can possibly come into conflict with the provisions of Section 33 of the Act.
24. It is not unknown to law that for different kinds of cause of action accruing a different date wherefrom limitation commences.
25. Conscious of the fact that if after an award is published a request has been made under Section 33 of the Act, a party should be entitled to the benefit of limitation not running against it with reference to the date of the award, the legislator has stipulated the trigger date as the one when the request under Section 33 of the Act is disposed of. This additionally shows the consciousness of the legislator to provide two trigger of dates.
26. The appeal is accordingly allowed. Impugned order dated August 2, 2015 is set aside. Objections filed by the respondent to the award dated August 5, 2014 are declared to be barred by limitation.
27. Notwithstanding the respondent not having filed any application seeking delay to be condoned in filing objections to the award, we have independently considered whether on account of wrong advise given by a counsel, the delay in filing the objections could be condoned. Unfortunately for the respondent the delay cannot be condoned because of the proviso of SubSection (3) of Section 34 of the Act, as per which, the delay of only upto 30 days can be condoned and the law declared by the Supreme Court in the decision reported as VII (2001) SLT 104=(2001) 8 SCC 470, Union of India vs. M/s. Popular Construction Co. has held that Section 5 of the Limitation Act, 1963 is not applicable to the said Act."
11. Without adverting to law laid down in Vindhya Telelinks Ltd. Vs. ARBT. No.20636/16 Union of India Vs. M/s. Ved Prakash Mittal & Sons Page 9 of 9 BSNL & Anr., (supra) and Union of India & Anr. Vs. Saboo Minerals Pvt. Ltd., suffice it to say that these judgments are of 2003 and have been delivered by Ld. Single Judge whereas the judgment of Prakash Atlanta, JV Vs. National Highways Authority of India, (supra) is of Hon'ble Division Bench and is of year 2013 and squarely applies to the facts of the case and in view of law laid down in Prakash Atlanta, JV Vs. National Highways Authority of India, 227 (2016) DLT 691 (DB), it is held that the present petition is time barred and is accordingly dismissed.
(Announced in open
Court on 30.05.2017) (Dr. Neera Bharihoke)
ADJ01, South District
Saket Courts, New Delhi
ARBT. No.20636/16
Union of India
Vs.
M/s. Ved Prakash Mittal & Sons