C.R. No.54 of 2006 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH
C.R. No.54 of 2006 (O&M)
Date of Decision: 18.01.2010
State of Haryana through Executive Engineer, Construction Division No.19, Rohtak ....Petitioner Versus
Shri Satish Bhatia and others ....Respondents Present: Mr. Ravi Dutt Sharma, DAG Haryana
for the petitioner.
None for the respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes ` -.-
K. KANNAN J.(ORAL)
1. The application filed under Section 34 of the Arbitration and Conciliation Act, 1996 to set aside the award dated 10.12.2001 that stood corrected on 21.08.2002 was dismissed. The application under Section 34 had been filed on 18.10.2002, that is, more than four months from the date when the original award was made but within a period of four months from the date when the correction of award was made.
2. The Lower Court, which dismissed the application rejecting the plea for condonation of delay, was on the basis that the provisions of the Arbitration and Conciliation Act provided for a specific period of limitation and when the extension of the C.R. No.54 of 2006 (O&M) -2- period could be made to the extent to which the said Act made provision and there was no scope for applicability of the Limitation Act. The Court below relied on a decision of the Hon'ble Supreme Court in Union of India Vs. M/s Popular Construction Company AIR 2001 SC 4010 that the limitation started only from the date of the original award and Section 5 could not be invoked for condonation of delay.
3. Learned counsel appearing for the State, Sh. Sharma contends that when the award was passed on 10.12.2001, it contained an error with reference to the amount of security deposit as Rs.1,75,000/- when it should have stated only Rs.1,65,000/-. An application for correction was made on 09.07.2002 and it was allowed on consent of the other side. The awad was consequently corrected by order dated 21.08.2002. The contention of the learned counsel for the State is that after the award was corrected on 21.08.2002 and that too, a consent without any objection emanating from the respondent, that the application for correction was beyond the period of limitation prescribed under Section 33, was immaterial and the respondent could not raise the issue of limitation after the award was corrected. According to him Section 34(3) that deals with an extension for the period of limitation must be considered only in the context when a request for correction was made and when it was allowed. Section 34(3) with its proviso reads as follows:- C.R. No.54 of 2006 (O&M) -3- "(3) 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 had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter."
4. Since there is a reference to Section 33 as regards the request for correction and the period of limitation as commencing from the time when the request was disposed of, it becomes necessary also to refer to Section 33 of the Act. The relevant Section is reproduced as under:
"33. Correction and interpretation of award, additional award. - (1) Within thirty days from the receipt of the arbitral award, unless another period of time has been agreed upon by the parties-
(a) a party, which notice to the other party, may request the arbitral tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature occurring in the award;
(b) if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.
C.R. No.54 of 2006 (O&M) -4- (2) if the arbitral tribunal considers the request made under sub-section (1) to be justified, it shall make the correction or give the interpretation within thirty days from the receipt of the request and the interpretation shall form part of the arbitral award.
(3) The arbitral tribunal may correct any error of the type referred to in clause (a) of sub-section (1), on its own initiative, within thirty days from the date of the arbitral award.
(4) Unless otherwise agreed by the parties, a party with notice to the other party, may request, within thirty days from the receipt of the arbitral award, the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award. (5) If the arbitral tribunal considers the request made under sub-section (4) to be justified, it shall make the additional arbitral award within sixty days from the receipt of such request.
(6) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, give an interpretation or make an additional arbitral award under sub-section (2) or sub-section (5).
(7) Section 31 shall apply to a correction or interpretation of the arbitral award or to an additional arbitral award made under this
Section 33(1) requires an application for correction to be made within 30 days from the date of receipt of the arbitral award. This delimitation of 30 days may not apply in a case where another period of time had been agreed upon by the parties. If it is so agreed, then on notice to the other party, the Tribunal may give an interpretation of a specific point or part of the award. If there was no such other period agreed upon, the award could be modified C.R. No.54 of 2006 (O&M) -5- for any computation errors, clerical or typographical errors only within a period of 30 days. Clause (2) talks about the time within which the arbitral tribunal itself shall pass order under Section 33 (1), which limits it to a period of 30 days from the date of receipt of the request. Sub-clause (3) operates for consideration of a request for correction of any error of the type mentioned in Section 33(1)(a) and that it should be done within 30 days from the date of the arbitral award. Sub-clause (4) operates in a case where Section 33(1)(b) is invoked and when there is an agreement between the parties for computation of a period beyond 30 days by virtue of a specific period of time agreed upon by the parties. Sub-clause (5) could be invoked only in cases where sub-clause (4) itself operates. As regards the arbitral tribunal's power to extend the period of time within which it could make a correction, that is within 30 days, as contemplated in sub-clause (2) and 60 days, as contemplated in sub-clause (5), that extention is possible under sub-clause (6) only to the extension of time that the Court may make once an application was within time. If the application itself is not filed within a period of 30 days as contemplated under Section 33(1), the question of grant of extension under sub-clause (6) does not arise.
4. In this case, the application for correction has been made beyond a period of 30 days and hence, the question of grant of extension for passing of the award by the Arbitral Tribunal C.R. No.54 of 2006 (O&M) -6- under Section 33(6) does not operate. The contention that the respondent has consented to the modification cannot avail to the petitioner since there cannot be an estoppel against statute. A concession that the respondents could have given to allow for a modification or a correction of error cannot extend the period of limitation, which the statute sets out. Learned counsel appearing for the petitioner also relies on a judgment of the Hon'ble Supreme Court in Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department and others (2008) 7 SCC 169. The three member Bench of the Hon'ble Supreme Court was referring to an application under Section 14 of the Limitation Act by virtue of Section 43 of the Arbitration and Conciliation Act, which through clause (1) states that "Limitation Act, 1963 shall apply to the proceedings in the arbitration as it applies to proceedings of a suit in the Court." The Hon'ble Supreme Court interpreted the interplay of Section 34 with Section 43 of the Arbitration and Conciliation Act, 1996 in the context of applicability of Section 14 of the Limitation Act and held that such provision would apply only in so far as it does not come into conflict with Section 34(3) of the said Act. If Section 34(3), stipulates a period of time and also allows for an extension of time to a particular period, such an extension excludes the operation of Section 5 of the Limitation Act. This judgment, in my view, answers the point against the petitioner and re-affirms C.R. No.54 of 2006 (O&M) -7- the law, which was set out earlier in Union of India Vs. Popular Construction Company's case. The Hon'ble Supreme Court held in Consolidated Engineering that the Court would have no jurisdiction to extend limitation beyond 30 days' period prescribed under the proviso of Section 34(3), even if sufficient cause is shown for it. Applying the maxim generalia specialibus non derogant, the Hon'ble Supreme Court excluded the applicability of Section 5 by virtue of a specific proviso under Section 34(3) while still applying Section 14 of the Limitation Act to a prosecution in a wrong forum under bona fide mistake for an application under the Arbitration and Conciliation Act.
5. The decision taken by the District Court rejecting the application to condone the delay, sets out the law correctly and it is not amenable for any modification or variation in revision. The revision petition is dismissed. There shall be, however, no direction as to costs.
January 18, 2010