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4. Mr. Acharya, learned counsel submits that the Petitioner- Supplier, pursuant to the agreement, supplied materials to National Small Industries Corporation (NSIC). Since the payment was not made within the stipulated time, MSEFC Case No.02 of 2012 was initiated. The MSEFC, vide its award dated 26th March, 2014 (Annexure-4), held that the NSIC Ltd., Kolkata-Opposite Party No.2 is liable to pay the principal and interest amount to the Petitioner- Supplier. After the award under Annexure-4 was passed, Opposite Party No.2, vide its Letter dated 16th May, 2014, requested the Secretary, Department of MSME, Government of Odisha to recall the award passed in MSEFC No.02 of 2012, so also in other five cases and to withhold the proceeding in all twenty five cases filed by the Petitioner-Supplier against the NSIC till the hearing of the cases by IFC. Pursuant to the said letter, the Additional Secretary to Government of Odisha in the Department of MSME, vide its Letter No.2913 dated 22nd May, 2014, requested the MSEFC to reconsider the issues raised by the Director (Finance), NSIC Ltd. in its letter dated 16th May, 2014 and review the award dated 26th March, 2014 passed in all the MSEFC Case Nos.2 to 4 of 2012 and 21 to 23 of 2012, which include the instant case.

5. Mr. Acharya, learned counsel for the Petitioner further submits that in view of Section 32 of the Arbitration and Conciliation Act, 1996 (for brevity 'the Arbitration Act'), arbitral proceeding stands terminated by passing final arbitral award. In the instant case, Designation: JUNIOR STENOGRAPHER Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-May-2024 15:02:09 the final arbitral award was passed under Annexure-4. After passing the final award, the arbitral tribunal becomes functus officio in entertaining any objection raised subject to Section 33 of the Arbitration Act. Section 33 of the Arbitration Act provides that within thirty days of receipt of the arbitral award, a party with notice to the other party may request the arbitral tribunal to correct any computation, clerical or typographical error or any other error of a similar nature occurring in the award. In the instant case, neither the letter dated 16th May, 2014 of the NSIC Ltd. nor Letter No. 2913 dated 22nd May, 2014 spelt out any clerical, computation or typographical error. However, entertaining aforesaid letters, the MSEFC passed the impugned order dated 17th June, 2014 reviewing the award itself by making the final award dated 26th March, 2014 (Annexure-4) a contingent one directing that the NSIC shall pay the outstanding principal and interest amount to the Petitioner-Supplier after realization of the same from the concerned Electricity Board. The aforesaid direction varies the nature of the final award and amounts to passing a fresh award on the reference made under Section 18 of the MSMED Act. Section 33 of the Arbitration Act does not permit the MSEFC to pass a subsequent award by modifying, reviewing or amending the original award passed under Annexure-4. He also relies upon the case of Gyan Prakash Arya -v- Titan Industries Limited, reported in (2023) 1 SCC 153, wherein it is held as under:-

7. Mr. Pattanaik, learned Senior Advocate appearing for NSIC-Opposite Party No.2 submits that Section 32 (3) of the Arbitration Act makes it clear that the after passing of the final award the Arbitrator does not become functus officio, as alleged. The mandate of the arbitral tribunal terminates subject to Section 33 of the Arbitration Act. Section 33(4) of the Arbitration Act provides that unless and otherwise agreed upon by the parties, a party with a notice to the other party may request, within thirty days from the receipt of the arbitral award to make an additional arbitral award as to the claims presented in the arbitral proceedings, but omitted from Designation: JUNIOR STENOGRAPHER Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-May-2024 15:02:09 the arbitral award. In the instant case, the agreement between the Petitioner and NSIC dated 18th August, 1994 clearly indicates that both the parties have agreed that NSIC shall make the payment after receipt of the same from the Electricity Boards. The NSIC is a facilitator. NSIC can never be treated to be a Purchaser. It only facilitates the small entrepreneurs to participate in the tender process, which they could not have done individually. It also provides financial assistance to the small entrepreneurs to participate in the tender process. While passing the final award, the same was omitted to be reflected in the arbitral award. Thus, by making an application NSIC requested the MSEFC to add the clause of mode of payment of the awarded amount. Thus, the award became contingent in terms of agreement executed between the Petitioner and NSIC. The request made by NSIC squarely comes under the provision of Section 33 of the Arbitration Act. He further submits that although it is reflected so, the MSEFC did not act upon the letter of the State Government while passing the impugned order under Annexure-5. The impugned order was passed pursuant to the letter issued by the NSIC on 14th May, 2016. As such, there is no infirmity in the impugned order under Annexure-5. He, therefore, submits that the writ petition is liable to be dismissed being devoid of any merit.

9. Heard learned counsel for the parties.

10. Perused the documents, case law and materials placed before this Court.

11. The short question that arises for consideration is whether the order passed under Annexure-5 can be clothed under Section 33 of the Arbitration Act. Section 19 of the Arbitration Act makes it clear that the provision of CPC is not applicable to the instant case. It is, however, submitted by Mr. Kumar, learned Senior Advocate that the provision under Section 33 of the Arbitration Act is made in the light of Section 152 of CPC. Thus, the principles of Section 152 CPC may be taken into consideration while entertaining the application under Section 33 of the Arbitration. In the instant case, no application under Section 33 of the Arbitration Act has been made to the MSEFC as would be apparent from the case record. Only a letter was issued by the NSIC to the Secretary, MSME, Government of Odisha on 16th May, 2014 for review of the final award. On the Designation: JUNIOR STENOGRAPHER Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-May-2024 15:02:09 basis of the said letter, Government in the Department of MSME wrote a letter to the MSEFC on 22nd May, 2014 to reconsider the issue raised by the Director (Finance, NSIC) in its letter dated 16th May, 2014 and review the award dated 26th March, 2014. Admittedly, Government of Odisha is not a party to the arbitral proceeding. Thus, no cognizance of letter dated 22nd May, 2014 could have been taken by the MSEFC to pass an order after the final award under Annexure-4 was passed. The letter issued by the NSIC to MSME Department, Government of Odisha was certainly not to the MSEFC.