Geojit Financial Services Ltd vs Sandeep Gurav
2021 Latest Caselaw 2869 Bom

         Digitally                                                        23-appp-67-2019.doc
         signed by
         Trupti
Trupti   Bhamne
Bhamne   Date:
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
         2021.02.15
         22:10:19
         +0530              ORDINARY ORIGINAL CIVIL JURISDICTION
                                    APPEAL NO. 67 OF 2019

               Geojit Financial Services Limited              )
               having its registered office at                )
               34/ 659- P, Civil Lane Road,                   )
               Padivattom, Kochi 682 024                      )    ...Appellant
                     Versus
               Sandeep Gurav                                  )
               A 004, New Star Apartment CHS Ltd.             )
               Behind GCC Club, Mira Bhayander Road           )
               Mira Road, Thane                               )     ...Respondent
                                               ......
               Mr.Anoshak Daver a/w. Mr. Gaurav Jangle, Mr.Digant Bhatt and Ms.
               Juhi Shah i/b. M/s. I.V. Merchant for the Appellant.
               Mr.Aliabbas Delhiwala a/w. Mr. Gouresh C. Mogre for the
               Respondent.
                                        CORAM : R.D. DHANUKA &
                                                   V.G.BISHT, JJ.

DATE : 12th February, 2021

ORAL JUDGMENT (PER : R.D.DHANUKA, J.)

1. Admit. The learned Counsel for the respondent waives

service.

2. By this Appeal filed under Section 37 of the Arbitration and

Conciliation Act, 1996 (for short, "the said Act"), the appellant

(original petitioner) has impugned the order dated 31 st August, 2017

passed by a learned Single Judge of this Court in Arbitration Petition

No. 161 of 2017 filed under Section 34 of the said Act and also

disposing of the Chamber Summons No. 448 of 2017 filed by the

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appellant inter alia praying for amendment of the Arbitration Petition.

3. By consent of the parties, the Appeal is heard finally at the

admission stage.

4. A signed copy of the award was received by the appellant on

13th July, 2016 whereby rejecting the counter claim filed by the

appellant. On 8th August, 2016, the appellant made an application

purportedly under Section 33 of the said Act for correction of the

award dated 8th July, 2016 and for an additional award on various

grounds. On 26th August, 2016, the Appellate Tribunal rejected the

said application under Section 33 of the said Act filed by the

appellant. On 29th August, 2016, the appellant received a copy of

the said order dated 26th August, 2016.

5. On 15th November, 2016, the appellant filed a Notice of Motion

bearing lodging No. 3244 of 2016 inter alia praying for condonation

of delay in filing the Arbitration Petition. On 10 th February, 2017, the

learned Single Judge of this Court allowed the appellant to withdraw

the said Notice of Motion on the ground that the Petition was not in

time. On 26th August, 2017, the appellant filed Chamber Summons

bearing lodging No. 448 of 2017 seeking liberty to amend the

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Arbitration Petition by incorporating additional facts and grounds. On

31st August, 2017, the learned Single Judge dismissed the said

Arbitration Petition and also the Chamber Summons filed by the

appellant on the ground that the application filed by the appellant on

8th August, 2016 was in the nature of the Review Petition and thus

was not contemplated under Section 33 of the said Act. The

learned Single Judge held that the Arbitration Petition was clearly

barred by limitation prescribed under Section 34 (3) read with

proviso thereto of the said Act. The said order of the learned Single

Judge is impugned by the appellant in this Appeal filed under

Section 37 of the said Act.

6. Mr. Daver, learned Counsel for the appellant, submits that the

application filed by his client on 8th August, 2016 was within the time

prescribed under Section 33 (1) of the said Act. The said

application was disposed of by the Appellate Bench on 26 th August,

2016. The appellant was entitled to file Arbitration Petition under

Section 34 of the said Act within a period of three months from the

date of disposal of the said application filed by the appellant under

Section 33 (1) of the said Act.

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7. Learned Counsel for the appellant invited our attention to the

application filed by his client before the Appellate Bench of the

Arbitral Tribunal and also the order passed by the Appellate Bench

thereon and would submit that the said application was not in the

nature of any Review Application and thus the period of limitation for

filing the Petition under Section 34 of the said Act would commence

from the date of disposal of the application filed by under Section 33

(1) of the said Act. The Petition thus filed by the appellant under

Section 34 (1) of the said Act was within the time prescribed under

Section 34 (3) of the said Act.

8. The learned Counsel for the respondent, on the other hand ,

strongly placed reliance on the judgment of the Supreme Court in

the case of State of Arunachal Pradesh Versus Damini

Construction Co.1 and the judgment delivered by one of us (Shri

R.D. Dhanuka, J.) in the case of Dr. Writer's Food Products Pvt.

Ltd v. Cosmos Co-operative Bank Limited2 in support of his

submission that the application filed by the appellant purportedly

under Section 33 of the said Act was for seeking review of the

Arbitral award rendered by the Appellate Bench on 13 th July, 2016

1 (2007) 10 SCC 742 2 2019 SCC OnLine Bom 2140

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and was not within the parameters of Section 33 (1) of the said Act.

The learned Single Judge thus was right in dismissing the

Arbitration Petition filed by the appellant on the ground of the

Arbitration Petition being barred by limitation prescribed under

Section 34 (3) of the said Act.

9. A perusal of the application dated 8 th August, 2016 filed by the

appellant before the Appellate Bench of the Arbitral Tribunal

indicates that the appellant relied upon various documents which

were submitted, according to the appellant before the Arbitral Panel

of the Exchange but not considered. It was contended in the said

application that the Arbitral Panel had considered the wrong

document for computing the counter claim of the respondent. The

reliance was also placed on the ledger statement showing the debit

balance of Rs. 15,58,198.84 in the respondent's account.

10. It was contended in the said application that the product wise

consolidated ledger with fund transfer entries had been issued to

the respondent herein on quarterly basis and the ledger clearly

shows the net debit in NSE F&O segment. The respondent had

allegedly not raised any dispute on fund transfer entries and debit in

F& O segment.

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11. It was further contended that the respondent herein had read,

understood and acknowledged those documents. Under the rules

and regulations of SEBI circular dated 3 rd December, 2009, the

respondent was under an obligation to point out the discrepancy/

dispute arising from the said statement of account within seven

working days from the date of receipt thereof which was not done by

respondent herein.

12. In the second last paragraph of the said application, the

appellant accordingly prayed that the Arbitral Tribunal may consider

the request of the appellant herein to correct the award and pass

additional award on merits allowing the counter claim of the

appellant herein by upholding the original award of the sole

arbitrator.

13. A perusal of the order passed by Appellate Bench of the

Arbitral Tribunal indicates that the Appellate Bench rejected the said

application on the ground that the appellant herein was trying to

persuade the Arbitral Tribunal to review the order passed by them

by putting forth his argument once again. The Arbitral Tribunal did

not have authority to review its own award. It is held by Arbitral

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Tribunal that the reasoned order did not require any rectification and

accordingly rejected the said application purportedly filed under

Section 33 (1) of the said Act.

14. The learned Single Judge has rightly held that the said

application filed by the appellant was in the nature of review and

thus, the appellant would not get fresh period of limitation from the

date of disposal of the application under Section 33 by the Arbitral

Tribunal.

15. The Hon'ble Supreme Court in the case of State of

Arunachal Pradesh (supra) has dealt with identical issue and has

held that the application seeking review under Section 33 was not

maintainable.

16. The Hon'ble Supreme Court considered that the application

filed by the appellant was by way of seeking review of the award on

merits and therefore, since the said application itself was wholly

misconceived, such application would not come within the scope of

Section 33. When the application does not come within the purview

of Section 33, the application was totally misconceived. This Court

adverted to the said judgments of Hon'ble Supreme Court in the

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case of State of Arunachal Pradesh (supra) and in the case of Dr.

Writer's Food Products Pvt. Ltd. (supra) and has rejected the

Arbitration Petition filed under Section 34 on the ground of limitation.

17. A perusal of the application dated 8 th August, 2016 filed by the

appellant clearly indicates that the appellant placed reliance on

various documents and advanced various arguments on merits in

the said application for seeking relief of an additional amount on

merits.

18. Under Section 33 (1) of the said Act, any party to the

proceedings is entitled to make an application for correction and

interpretation of the award or for an additional amount within 30

days from the receipt of the Arbitral Award, unless another period of

time has been agreed upon the parties to correct the computation

errors or clerical or typographical errors or any other errors of a

similar nature occurring in the award. If both the parties agree, 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.

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19. It is not in dispute that the appellant had filed an application

within 30 days from the date of receipt of the copy of the award from

the Appellate Bench of the Arbitral Tribunal. The question which

arose for consideration of the learned Single Judge and also before

this Court was whether the said application dated 8 th August, 2016

filed by the appellant was within the parameters of Section 33 (1) of

the said Act.

20. In our view, since the said application filed by the appellant

was seeking review of the impugned award rendered by the

Appellate Bench of the Arbitral Tribunal on merits, it was not within

the parameters of Section 33 (1) of the said Act. Such application

under Section 33 (1) could be made only in the event on there being

any computation of errors or clerical or typographical errors or any

other errors of a similar nature occurring in the award. The

application under Section 33 could be also maintained if both the

parties would have agreed for making an additional arbitral award

as to the claims presented in the arbitral proceedings but limited in

the arbitral award. The application filed by the appellant was not for

correction of any such error specifically prescribed in Section 33 (1)

or for an additional award under Section 33 (4) by agreement of

both the parties.

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21. In our view, limitation prescribed under Section 34 (3) of the

said Act prescribing a period of three months from the date on which

a signed copy of the award was received, would apply to the facts of

this case. Since the application filed by the appellant was not

within the parameters of Section 33, the period of limitation would

not commence from the date of disposal of the said application

purportedly filed by the appellant under Section 33 but would

commence from the date of service of signed copy of the award

from the Arbitral Tribunal on 13th July, 2016.

22. Since the Petition was not filed by the appellant within a period

of three months from the date of service of signed copy of the award

dated 13th July, 2016, the learned Single Judge was right in rejecting

the Arbitration Petition and consequently the Chamber Summons on

the ground that the Arbitration Petition itself was barred by limitation

under Section 34 (3) of the said Act.

23. The principles laid down by the Hon'ble Supreme Court in the

case of State of Arunachal Pradesh (supra) is applicable to the

facts of this case. We are respectfully bound by this judgment. We

are not inclined to take a different view than the view taken by

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learned Single Judge of this Court in the case of Dr. Writer's Food

Products Pvt. Ltd (supra).

24. The Appeal is totally devoid of merits and is accordingly

dismissed.

(V.G.BISHT, J.)                            (R.D.DHANUKA, J.)




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