Bombay High Court
M/S. Blue Prime Aluminum Ltd. And 2 ... vs M/S. L And T Finance Ltd on 30 March, 2016
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1733 OF 2015
IN
ARBITRATION PETITION (L) NO.1854 OF 2015
ALONG WITH
ARBITRATION PETITION (L) NO.1854 OF 2015
1. Blue Prime Aluminum Ltd. )
A Company incorporated under the )
provisions of the Companies Act, 1956)
and having its Registered office at )
Plot No.145A, Sector 59, HSIIDC, )
Faridabad, Haryana - 121 004. )
2. Mr.Pritam Mantri
aged 45, Adult Inhabitant,
ig )
)
Managing Director of petitioner no.1, )
S/o. Mr.Rambilas Asaram Mantri, )
Residing at H. No.993, Sector 15, )
Faridabad, Haryana - 121 007. )
3. Mr.Rambilas Mantri )
aged 70, Adult Inhabitant, )
Managing Director of petitioner no.1, )
S/o. Mr.Rambilas Asaram Mantri, )
Residing at H. No.993, Sector 15, )
Faridabad, Haryana - 121 007. ) .. Applicants/Petitioners
Versus
L & T Finance Ltd. )
A Company incorporated under the )
provisions of the Companies Act, 1956)
and having its registered office at )
L & T House, Ballard Estate, )
Mumbai - 400 001 and its Corporate )
Office at the Metropolitan, 8th Floor, )
C-25/C-26, E-Block, Bandra, )
Bandra Kurla Complex, Bandra (East),)
Mumbai - 400 051. ) .. Respondent
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ppn 2 3.nms-1733.15.doc
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Mr.Ashish Mehta a/w Ms.Sarbari Chatterjee a/w Ms.Avani Rathod i/by
M/s.Ashish Mehta for the applicants/petitioners.
Mr.Anand Poojary a/w Ms.Nikita Pawar i/by M/s.S.I. Joshi & Co. for the
respondent.
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CORAM : R.D. DHANUKA, J.
DATE : 30th March 2016
Judgment :-
. By this notice of motion, the applicants seek condonation of
delay of 24 days in filing the present arbitration petition.
2.
Mr.Poojary, learned counsel appearing for the respondent
submits that the petition is not filed within the period of 3 months from
the date of receipt of the signed award by the applicants from the learned
arbitrator. He submits that delay is not of 24 days but much more than
30 days and thus this Court has no power to condone the delay of more
than 30 days.
3. Mr.Mehta, learned counsel appearing for the applicants
submits that the papers in the arbitral proceedings were not served upon
the applicants. He submits that the copy of the impugned award was
received by the applicants in the first week of December 2014. He
submits that the applicants, thereafter, made an application on 20 th
January 2015 through their advocate to the learned arbitrator requesting
the learned arbitrator to set aside the impugned award by correcting
various mistakes. He submits that the said application made by the
applicants was actually filed under Section 33 of the Arbitration and
Conciliation Act, 1996 (for short "the said Act"). He submits that the said
application, however, is not decided by the learned arbitrator.
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4. It is the case of the applicants that some time in the month
of June 2015, the applicants were served with the Chamber Summons
No.788 of 2015 in Execution Application (L) No.1124 of 2015 filed
by the respondent, inter alia, praying for the execution of the impugned
award dated 11th November 2014. The applicants, thereafter, were advised
to challenge the impugned award and not to wait for the outcome of the
application purportedly under Section 33 of the said Act. He submits that
the petition is admittedly lodged on 22nd September 2015 and thus there
is a delay of 24 days in filing the present arbitration petition. He submits
that the applicants were under a genuine and bonafide belief that the
learned arbitrator would decide the said application under Section 33 of
the said Act filed by the applicants. Since such application was pending,
the applicants did not file an arbitration petition immediately.
5. It is submitted by the learned counsel for the applicants that
though the applicants have made the payment of Rs.60,000/-, the learned
arbitrator did not give credit of the said amount.
6. My attention is also invited to the application dated 20 th
January 2015 filed by the applicants before the learned arbitrator. Learned
counsel for the applicants submits that as the learned arbitrator did not
give credit of the amount paid by the applicants, the said application
filed by the applicants would fall under Section 33(1)(a) of the said Act.
He submits that he has no objection if the matter is remanded back to the
learned arbitrator and fair opportunity is given to the applicants to present
their case before the learned arbitrator.
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7. Mr.Poojary, learned counsel appearing for the respondent
opposes this notice of motion on the ground that the petition is filed
beyond the period of 30 days after expiry of three months prescribed
under Section 34(3) of the said Act and thus this Court has no power to
condone the delay beyond 30 days.
8. It is not in dispute that even according to the applicants,
copy of the signed award was received by the applicants from the learned
arbitrator in the first week of December 2014. The application filed by
the applicants purportedly under Section 33 of the said Act is dated 20 th
January 2015. Even if such application is considered as an application
under Section 33 of the said Act, admittedly, the said application is
made beyond the period of 30 days from the date of receipt of the copy
of the signed award by the applicants from the learned arbitrator.
9. Under Section 33(1) of the said Act, an application can be
made by a party with notice to the other party to correct any computation
errors, any clerical or typographical errors or any other errors of a similar
nature occurring in the award unless another period of time is agreed by
the parties. Admittedly, the parties in this case have not agreed for any
other period for making such application under Section 33(1) of the said
Act. In my view, even if such application is considered as an application
under Section 33 of the said Act since the same was not made within 30
days from the date of receipt of the copy of the signed award, the learned
arbitrator was not bound to pass any order on such application. I am
thus not inclined to accept the submission of the learned counsel for the
applicants that the applicants could not have filed the arbitration petition
till such application purportedly made by the applicants under Section 33
ppn 5 3.nms-1733.15.doc
was disposed of by the learned arbitrator. Be that as it may, a perusal of
the application dated 20th January 2015 filed by the applicants
purportedly under Section 33 of the said Act clearly indicates that the said
application is not within the parameters of Section 33(1)(a) of the said
Act.
10. A perusal of the application indicates that the applicants
had alleged that they had not received a copy of the petition along with
enclosures and thus the applicants could not submit their written
submission before the learned arbitrator. It is further alleged that the
interest awarded by the learned arbitrator was not genuine and thus the
learned arbitrator shall waive the interest in the impugned award. It is
also alleged that the amount claimed by the claimants was not correct
and some of the amounts which has been paid by the applicants through
RTGS/cheques had not been brought in the calculation of the claim
amount. The applicants accordingly applied for setting aside the award
before the learned arbitrator in the said application with costs.
11. In my view, since the application made by the applicants
was not within the parameters of Section 33(1)(a) of the said Act, the
time provided for filing an arbitration petition under Section 34(3) of the
said Act was not extended till the date of disposal of such application
filed by the applicants under Section 33(1)(a) of the said Act. It is thus
clear beyond reasonable doubt that the arbitration petition which is
admittedly lodged on 22nd September 2015 is beyond the period of 30
days after expiry of three months from the date of receipt of the signed
award by the applicants from the learned arbitrator and thus the petition
is ex-facie barred by law of limitation provided under Section 34(3) of
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the said Act. This Court has no power to condone the delay of more than
30 days under Section 34(3) of the said Act.
12. Notice of motion is accordingly dismissed. In view of
dismissal of the notice of motion, arbitration petition is also dismissed.
No order as to costs.
R.D. DHANUKA, J.
