Delhi High Court
National Technical Research ... vs Telecommunications ... on 26 October, 2018
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th October, 2018
+ O.M.P. (COMM) 191/2016
NATIONAL TECHNICAL RESEARCH ORGANIZATION (NTRO)
..... Petitioner
Through: Mr.Ruchir Mishra & Mr.Mukesh Kr.
Tiwari, Advs.
versus
TELECOMMUNICATIONS CONSULTANTES INDIA LIMITED
(TCIL) ..... Respondent
Through: Mr.P.K. Bansal & Ms.Anjali Bablani,
Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
1. This petition under Section 34 of the Arbitration and Conciliation Act,
1996 (hereinafter referred to as the 'Act') has been filed by the
petitioner challenging the Arbitral Award dated 06.03.2014 and the
order dated 22.01.2015 passed by the Sole Arbitrator on an
application filed by the petitioner under Section 33 of the Arbitration
and Conciliation Act, 1996.
2. The learned counsel for the respondent has raised a primary objection
on the maintainability of the present petition on the ground of it being
barred by Law of Limitation as provided in Section 34(3) of the Act.
He submits that the period of delay being beyond thirty days from the
expiry of three months of the receipt of the Award, cannot be
condoned by this Court.
O.M.P. (COMM) 191/2016 Page 1
3. On the other hand, the learned counsel for the petitioner submits that
the Arbitral Award dated 06.03.2014 (received on 10.03.2014) had
been challenged by the petitioner by filing a petition under Section 34
of the Act being OMP 974/2014. The said petition was filed on
01.07.2014, which was within the period of limitation as provided
under Section 34(3) of the Act. In the meantime, the petitioner has
also filed an application under Section 33 of the Act before the
Arbitrator seeking clarification of the interest awarded by the
Arbitrator in the Impugned Award. Such application was filed on
19.05.2014. As the said application was pending adjudication before
the Arbitrator, on 20.08.2014 the counsel appearing for the petitioner
prayed for permission to withdraw the petition under Section 34 of the
Act with liberty to challenge the Award after the disposal of the
application under Section 33 of the Act by the Arbitrator. This Court
by its order dated 20.08.2014 granted permission to the petitioner to
withdraw the said petition with liberty as prayed for. The application
under Section 33 of the Act was disposed of by the Arbitrator vide
order dated 22.01.2015 and the present petition was filed on
11.05.2015, that is, within the period of limitation as prescribed under
Section 34(3) of the Act. He submits that in view of the above
chronology of events, the present petition was within the period of
limitation.
4. Learned counsel for the respondent placing reliance on the judgments
of this Court in Union of India v. Saboo Minerals Pvt. Ltd., 2003(3)
R.A.J. 354(Del) and S.P.S. Rana v. MTNL & Ors., 2010(5) R.A.J.
66(Del), submits that the application filed by the petitioner under
O.M.P. (COMM) 191/2016 Page 2
Section 33 of the Act was infact no application in the eyes of law
inasmuch as it had been filed beyond the period of thirty days from
the receipt of the Arbitral Award. He submits that the petitioner would
therefore, not be entitled to claim the extension of period of limitation
on the basis of the pendency of the said application. As far as the
order dated 20.08.2014 is concerned, the learned counsel for the
respondent submits that the said order has been passed on the
submissions of the counsel appearing for the petitioner and therefore,
the petitioner cannot take any advantage of the same.
5. I have considered the submissions made by the counsels for the
parties. Section 33 of the Act provides for either party to the
arbitration proceedings to file an application before the Arbitral
Tribunal seeking correction of any computation errors, any clerical or
typographical errors or for interpretation of the Arbitral Award on a
specific point. Such application, however, has to be filed within a
period of thirty days from the receipt of the Arbitral Award.
6. Section 34(3) of the Act prescribes the period of limitation for filing
of a petition under Section 34 of the Act challenging the Arbitral
Award and reads as under:-
"34(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
O.M.P. (COMM) 191/2016 Page 3
thereafter."
7. This Court in S.P.S Rana (Supra) considered the effect of an
application under Section 33 of the Act being filed beyond the period
of thirty days on the period of limitation under Section 34(3) of the
Act and held as under:-
"6. The first question which arises for consideration is,
whether the time of 30 days provided under Section 33(1) of
the Act, in the absence of any agreement between the
parties of any other time, is extendable.
xxxxxx
9. Section 33 of the Act does not use the words "but not
thereafter". However, the period of 30 days is subject to
"unless another period of time has been agreed upon by the
parties". In our view the said expression has to be read in
the same manner as the expression "but not thereafter" was
interpreted in M/s Popular Construction Co. (supra).
Also, Section 32 inter alia provides for termination of the
arbitral proceedings by the final award. Section 32 (3)
lays down that the mandate of the Arbitral Tribunal shall
terminate with the termination of the arbitral proceedings,
subject inter alia to Section 33. It will thus be seen that
unless a case is covered by Section 33, the mandate of the
Arbitral Tribunal is terminated. Thus, unless an
application/petition under Section 33(1) of the Act is
preferred within 30 days of the making of the award, the
mandate of the Arbitral Tribunal terminates. Once the
mandate of the Arbitral Tribunal terminates, it is not
possible to file the application / petition under Section 33 of
the Act.
10...... One of the main purposes for the re- enactment of the
arbitration law was to allow adjudication of disputes by
arbitration expeditiously. Seen in this light, it will be found
that the period of 30 days provided for preferring the
application under Section 33 of the Act is not extendable
inasmuch as unless the application is so preferred, there is
O.M.P. (COMM) 191/2016 Page 4
no Arbitrator thereafter. We find that the same conclusion
has been reached in UOI vs. Saboo Minerals Pvt. Ltd., 106
(2003) DLT 92 and in Ircon International Ltd. vs. Budhraja
Mining & Constructions Ltd. MANU/DE/8647/2007 by
Single Judges of this Court.
11. That being the position, the petition purportedly
preferred by the petitioner under Section 33 of the Act was
in fact no petition. Thus the order dated 18th December,
2007 of the Arbitrator holding the petition under Section
33 preferred after 30 days to be not maintainable and the
Arbitrator having become functus officio cannot be said to
have disposed of the said application. The said order has to
be read as an order only intimating that the application did
not lie, the Arbitrator having become functus officio. The
petitioner is thus not entitled to the benefit of the part
of Section 34(3) providing for commencement of the period
of three months for applying for setting aside of the order
from the date of disposal of the application under Section
33; as such disposal has to be on an application preferred
within 30 days provided under Section 33 (1) of the Act. If
the application under Section 33 is preferred after 30 days,
the order of the Arbitral Tribunal to the effect that it cannot
entertain the application, being functus officio, is not a
"disposal" from which a fresh period of limitation would
accrue. If such an interpretation were to be given, it will
easily permit the unscrupulous litigants to, notwithstanding
the expiry of the period of three months prescribed
under Section 34(3) apply for setting aside of the award at
any stage by merely prior thereto filing a application
under Section 33 of the Act."
8. Applying the ratio of the above judgment to the facts of the present
case, it has to be held that the application filed by the petitioner under
Section 33 of the Act, being filed beyond the period of thirty days
from the receipt of the copy of the Award, was no application in the
eyes of law and therefore, the petitioner was not entitled to seek the
O.M.P. (COMM) 191/2016 Page 5
benefit of extension of period of limitation under Section 34(3) of the
Act on the basis of pendency of such application before the Arbitrator.
Once this period is excluded, the delay in filing of the present petition
would be beyond the period of thirty days from the expiry of three
months from the day of receipt of the Arbitral Award by the petitioner
and such delay cannot be condoned by this Court.
9. As far as the order dated 20.08.2014 is concerned, the same was
passed on the basis of submission made by the counsel for the
petitioner that an application under Section 33 of the Act is pending
before the Arbitrator and the petition filed is premature. This clearly
was a submission made in ignorance of the law.
10.This order, however, cannot be read as extending the period of
limitation for filing of the petition, being passed on a self invitation by
the petitioner and without apprising the Court that the application
under Section 33 of the Act had not been filed within thirty days of
receipt of the Arbitral Award.
11.In view of the above, the present petition is dismissed on the ground
of limitation, leaving it open to the petitioner to seek such other
remedy as may be open to it in law.
NAVIN CHAWLA, J
OCTOBER 26, 2018/rv
O.M.P. (COMM) 191/2016 Page 6
