Madras High Court
The Tamil Nadu Civil Supplies ... vs M/S.Lakshmi Export on 15 June, 2023
O.P.No.780 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 15.06.2023
CORAM:
THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY
O.P.Nos.780 & 927 of 2017
The Tamil Nadu Civil Supplies Corporation,
rep. by its Managing Director,
No.12, Thambusamy Salai,
Kilpauk, Chennai-600 010. ...Petitioner
Versus
M/s.Lakshmi Export,
No.408, Rangai Gowda Street,
2nd Floor Kandasamy Shopping Centre,
Coimbatore-641 001. ...Respondent in
O.P.No.780/2017
Sree Bhuvaneswari & Co.,
No.206, Govindappa Naicker Street,
Chennai-600 001. ...Respondent in
O.P.No.927/2017
Prayer in O.P.No.780 of 2017:
Original Petition is filed under Section 34 of the Arbitration and
Conciliation Act, 1996, praying to set the award passed by the learned
Arbitrator, dated 29.09.2015 in Arbitration Case No.13 of 2011/SV
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
followed by the additional award dated 20.06.2017 in Arbitration case
No.01/2017 SV.
Prayer in O.P.No.927 of 2017:
Original Petition is filed under Section 34 of the Arbitration and
Conciliation Act, 1996, praying to set the award passed by the learned
Arbitrator, dated 29.09.2015 in Arbitration Case No.04/2011/SV followed
by the additional award dated 28.08.2017 in Arbitration case No.02/2017
SV.
For Petitioners : Mr.J.Ravindran,
Addl.Advocate General
assisted by Mr.K.Raguraman
For Respondents : Mr.G.Karthikeyan, Sr.Counsel
for M/s.C.D.Sugumar
COMMON ORDER
Original petition No.780 of 2017 has been filed by the petitioner
under Section 34 of the Arbitration and Conciliation Act, 1996 (in short,
'the Act'), praying to set aside the award passed by the learned Arbitrator,
dated 29.09.2015 in Arbitration Case No.13 of 2011/SV followed by the
additional award dated 20.06.2017 in Arbtration case No.01/2017 SV.
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
Original petition No.780 of 2017 has been filed by the petitioner,
praying to set aside the award passed by the learned Arbitrator, dated
29.09.2015 in Arbitration Case No.04/2011/SV followed by the additional
award dated 28.08.2017 in Arbitration case No.02/2017 SV.
2. Since the facts, parties and the issues involved in the present
Petitions are common, these Petitions are taken up together and being
disposed of vide this common order.
3. The brief facts, which are necessary for disposal of the present
Original Petitions, can be stated as under:
4. The petitioner is the Tamil Nadu Civil Supplies Corporation,
established and controlled by the State Government of Tamil Nadu, for
procuring and supplying essential commodities to the public through ration
shops. Pursuant to the tender floated by the petitioner for supply of 6000
Mt.Toor Dhall and 2000 Mt Urid Dhall, the respondents, which are carrying
on the business of import of pulses and food grains, entered into Supply
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
Contract Agreements, dated 30.12.2010 and 11.02.2010 respectively.
Consequently, the respondents also deposited EMD of Rs.38,55,000/- and
Rs.52,00,000/- with the petitioner as required under Clause 7 of the
Agreements. It appears that the respondents, during the execution of their
contracts, had delayed the supply of the agreed quantities of Toor Dhall and
Urid Dhall and after completion of the supplies, the respondents raised final
bills which were not settled by the petitioner. Later, there was exchange of
notices and reply notices between the parties, which, ultimatedly, lead to
invoking the arbitration Clause contained in the agreements by the
respondents and referred the matter to the arbitral tribunal.
5. The sole arbitrator entered the reference and issued notices to both
parties. Both the parties have filed their statements of claim and counter
claims and also filed statement of defense to the statement of claims filed by
the opposite party. On conclusion of the evdience of both parties, matters
were heard by the learned Arbitrator and passed the following separate
awards, dated 29.09.2015.
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
In Arbitration Case No.13/2011, dated 29.09.2015:
1) The orders of the respondent in
No.BS6/110707/2010 dated 06.04.2011 withholds by the
corporation are hereby ordered to be set aside.
2) Since the impugned order dated 06.04.2011 passed
by the respondent corporation is ordered to be set aside
supra, the respondent is directed to pay a sum of
Rs.86,06,467/- being the amount towards the supplied
quantity of 168 MTS of Toor Dhall.
3) The respondent is also directed to refund security
deposit of Rs.38,55,000/- (Rupees Thirty eight lakhs, fifty
five thousand).
4) As regards release of amount, withheld in respect of
other completed contracts it hereby ordered to refund the
withheld amount relating to other completed contracts, after
verifying the accounts within a period of 30 days from the
date of receipt of the orders.
5) The claim of Rs.1,97,40,362/- being the 5% of the
profit per month for the withheld amount of Rs.2,46,75,453/-
is ordered to be rejected since it is not supported by any
documentary evidence.
6) The claim of interest @ 18% is ordered to be
rejected.
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
The cost of the case should be shared by both on 50:50
basis.
In Arbitration Case No.4/2011, dated 29.09.2015:
The orders of the Managing Director, Tamil Nadu
Civil Supplies Corporation in No.BS6/4938/2010 dated
04.10.2010 forfeiting the Security Deposit of Rs.52,00,000/-
and terminating the contract as per agreement dated
11.02.2010 are ordered to be uphold.
2. The orders of the Managing Director, TNCSC in
No.BS6/4938/ 2010 dated 23.12.2010 in which a sum of
Rs.1,16,34,477/-has been ordered to be recovered from the
Claimant are ordered to be set aside.
3. It is ordered to refund a sum of Rs.1,71,59,807
being the cost of 312.018.900 MT of Toor Dhall, withheld
by the Corporation and refund a sum of Rs.56,45,000/- being
the Security Deposit amount relating to Toor Dhall contract.
4. A sum of Rs.18,00,000/- towards compensation for
the loss of profit, claimed by the respondent is ordered to be
rejected.
5. A sum of Rs.10,000/- as damages, claimed towards
damages in lieu of reputation and loss of profit by the
Claimant is ordered to be rejected.
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
The cost of the case should be shared by both on 50:50
basis.
6. It is pertinent to note that though the above awards have been
passed as early as on 29.09.2015, the petitioner Corporation has neither
challenged the awards nor complied with the same and thereby, the awards
have become final. While so, after a lapse of two years, the petitioner has
moved an application under Section 33 of the Act before the learned
Arbitrator, seeking to modify the awards, viz., to correct the nomenclature
of the claimant in the award, dated 29.09.20215 passed in Award
No.04/2011/SV and also to modify the award amount as Rs.1,21,14,077/-
instead of Rs.1,22,14,036/- in the award, dated 29.09.2015 passed in Award
No.13/2011/SV. The learned Arbitrator has entertained the same since the
respondents herein, after receipt of notice, reported no objection and
accordingly, passed the additional awards dated 20.06.2017 and 28.08.2017.
7. Now the petitionier Corporation has come forward with the present
Original Petitons, seeking to challenge the original awards vis-a-vis
additional awards.
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
8. The learned Additional Advocate General appearing for the
petitioner Corporation, would primarily contend that by virtue of
entertaining the applications under Section 33 of the Act, the learned
Arbitrator has passed the additional awards by amending the original
awards already passed and the petitioner can very well bring the
irregularties and infirmities committed by the learned Arbitrator while
passing the awards and as such, the present petitions are maintainable and
this Court is empowered to set aside the awards in the event the petitioner
makes out the case. He would contend that the awards are liable to be set
aside as being opposed to the public policy and fundamental principles of
judicious approach to the issue in question since admittedly, the
respondents committed breach of agreement having failed to supply the
essential commodities despite the period was extended also, which
prompted the petitioner Corporation to terminate the contracts of the
respondents and to purchase the same from other sources, which resulted in
financial loss to the petitioner Corporation. He would contend that the
learned Arbitrator has not considered the crucial and admitted fact of non-
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
supply of essential commodities, which the respondents termed it as 'beyond
control' under which, they could not supply. But the learned Arbitrator has
erroneously considered the version of the respondents even in the absence
of documentary evidence. The learned Arbitrator has not dealt with the
counter claim made by the petitioner Corporation in proper perspective, but
entertained the claims made by the respondents while taking note of
contention put forth by the respondents that due to non-release of payment
of supply in respect of other agreements, the respondents could not procue
the material. He pointed out that it is nothing to do with the present
agreement and the respondents ought to have duly complied with the terms
of the contract, failing which, the petitioner Corporation is entitled to
terminate the contracts and forfeit the security deposit and also to fasten the
loss on the respondents sustained by it due to non-supply of the material and
in the present case, the petitioner Corporation has rightly terminated the
contracts and forfeited the security deposit and raised counter claim towards
loss sustained by it, which were not properly considered by the learned
Arbitrator and hence, the same are liable to be set aside. The learned
Addl.Advocate General would also contend that since the original awards
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
were merged with the additional awards, the time limit would run from the
date of receipt of additional awards and as such, the petitions are well
within the time limit and the same can be entertained.
9. On the other hand, the learned Senior counsel for the respondents
would contend that the present Original Petitions cannot be entertained as
the same are barred by limitation inasmuch as the original awards were
passed on 29.09.2015 and the consequential additional awards are based
upon the applications filed under Section 33 of the Act pertaining to only
corrections of nomenclature of the respondent and typographical error in
respect of the award amount claimed by the respondent and the limitation
cannot run from the date on which, the additional awards were passed. He
pointed out that admittedly, the petitioner Corporation has not challenged
the awards under Section 34 of the Act and allowed the same to become
final. Now, after getting the additional awards by virtue of Section 33 of the
Act, it is not fair on the part of the petitioner Corporation to come forward
with the present petitions without honouring the awards. He also submitted
that what the petitioner Corporation requested before the learned Arbitrator
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
was only for correction to the extent of Rs.99,959/- and also nomenclature
of the respondent/claimant and to that extent, amended awards were also
passed. Therefore, having admitted the amended awards and their liability
to the above extent, it is not fair for the petitioner Corporation to go back
and contest the awards. Hence, the learned counsel for the respondents,
sought for dismissal of the petitions.
10. Heard the learned Addl.Advocate General appearing for the
petitioner Corporation and the learned counsel appearing for the
respondents and perused the entire materials available on record.
11. It is not in dispute that the learned Arbitrator has passed the
original awards on 29.09.2015. The aggrieved party, having received the
signed copy of the arbitral award, can challenge the same under Section 34
of the Act. Section 34 of the Act 1996 provides for a period of limitation
for filing a petition for setting aside the arbitral award. It reads thus:
“34. Application for setting aside arbitral award :--
2) .....
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
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
application 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.”
12. A plain reading of the provision would make it clear that no
application for setting aside the arbitral award can be made after three
months from the date on which the party making the application had
received the arbitral award or, if a request has been made under Section 33,
from the date on which that request has been disposed of by the arbitral
tribunal. However, the Court in an appropriate case, may extend the said
period of three months for filing the application for a further period of thirty
days "but not thereafter". The provision undoubtedly is mandatory in its
nature. The competent Court has no jurisdiction to extend or condone the
delay in filing the application beyond the period of thirty days. The Court in
its discretion, may extend or condone 30 days delay only in filing the
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
application under Section 34 of the Act. Section 34 of the Act further
makes it clear that an Arbitral award can be set aside on the grounds
enumerated in sub- section (2) of section 34 of the Act and on no other
ground.
13. While so, in the present case, admittedly, the petitioner
Corporation has not challenged the awards invoking Section 34 of the Act
within the prescribed time limit and virtually allowed the awards to become
final. In other words, the petitioner Corporation has lost the opportunity to
challenge the awards on the grounds enumerated in Sub Section (2) of
Section 34 of the Act. Once the time-limit or extended time-limit for
challenging the arbitral award expires, the period for enforcing the award
under Section 36 of the Arbitration Act commences. When such being the
situation, there is no other opition for the petitioner Corporation, except to
honour the awards. However, after a lapse of two years, the petitioner has
moved an application under Section 33 of the Act before the learned
Arbitrator, seeking to modify the awards, viz., to correct the nomenclature
of the claimant in the award, dated 29.09.20215 passed in Award
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
No.04/2011/SV and also to modify the award amount as Rs.1,21,14,077/-
instead of Rs.1,22,14,036/- in the award, dated 29.09.2015 passed in Award
No.13/2011/SV.
14. In this regard, it is worthwhile to refer Section 33 of the Act,
which enables the parties to the award, to request the arbitral tribunal to
correct any computation errors, any clerical or typographical errors occurred
in the award. It reads 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, with 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.
(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.
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
(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.
15. A perusal of the above makes it explicit that any computation
errors or clerical/typographical errors can be sought for correction before
the learned Arbitrator by the parties to the award after giving notice to the
other party and the learned Arbitrator, in turn, can entertain the same if it is
filed within the prescribed time limit of 30 days from the receipt of the
arbitral award, unless another period of time has been agreed upon by the
parties. In the instant case, it is not in dispute that application under Section
33 of the Act was moved after expiry of the prescribed time limit, that too
after a period of two years and since the respondents, having received the
notice, reported no objection for entertaining the applications and for
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
passing additional award by the learned Arbitrator. In fact, the learned
Arbitrator has recorded the following submission made on behalf of the
respondents as regards reporting no objection to entertain the applications
moved under Section 33 of the Act despite there was considerable delay.
“The respondent/Claimant company has stated that if
the applicant/respondent is in good intention to honour the
award, they can very well settle the awarded amount with
reference to award, ignoring the negligible omission. They
have also stated that the applicant corporation has not
challenged the award through available legal forum, for the
past two years and hence the limitation to approach Hon'ble
Court in the instant case barred. While the situation is so, the
present plea of the applicant to make correction on Award
appears to be for attempting to drag on the settlement and to
cheat the claimant.”
16. The learned Arbitrator has observed that under the guise of
seeking correction of the award, the petitioner was attempting to drag on the
settlement and to cheat the claimants. However, taking note of the
respondents/claimants' no objection for carrying out corrections in the
award, the learned Arbitrator has made corrections and passed additional
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
awards. The learned counsel for the respondents/claimants had made a
submission before the learned Arbitrator that if the petitioner was in good
intention to honour the award, they can very well settle the awarded amount
with reference to award, ignoring the negligible omission. Therefore, even
though there was considerable delay in filing the applications under Section
33 of the Act, the respondents reported no objection to entertain the
applications since the respondents were under bona fide impression that the
petitioner would honour the awards. But unfortunately, after getting the
additional awards under the guise of correcting the errors in the awards, the
petitioner Corporation without honouring the awards, has come foward to
challenge the awards, which canot be entertained.
17. In fact, on thorough verification of the books of accounts, the
petitioner Corporation has filed their affidavit, stating that the amount due
to the respondent/claimant is worked to Rs.1,21,14,077/- whereas, the
award was passed for a sum of Rs.1,22,14,036/- and hence, they requested
to amend the award by reducing a sum of Rs.99,959/-. By this, it is very
clear that the petitioner Corporation has admitted to pay the award amount
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
at Rs.1,21,14,077/- and the respondent/claimant under bona fide impression
that the petitioner Corporation would honour the award. In another matter,
the petitioner Corporation has only sought to change the nomenclature of
the respondent/claimant in the award, which was also entertained by the
learned Arbitrator by passing additional award. Having admitted their
liability to the extent of modified award before learned Arbitrator, now, it is
not fair on the part of the petitioner Corporation to revert back and
challenge the awards in entirety.
18. The learned Addl.Advocate General would rely upon a decision
reported in “Ved Prakash Mithal and sons versus Union of India”
reported in 2018 SCC OnLine SC 3181 wherein, the Hon'ble Supreme
Court has interpreted Section 34(3) with reference to Section 33 of the Act,
to hold that the disposal of an application under Section 33 of the Act would
be the starting point for limitation. Therefore, the learned Addl.Advocate
General would contend that in the present case, the applications moved
under Section 33 of the Act were considered and disposed of by the learned
Arbitrator by passing additional awards dated 20.06.2017 and 28.08.2017
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
and therefore, the time limit to challenge the awards would start from the
date of additional awards and hence, the present petitions are maintainable
and the petitioners can very well challenge the additional awards, which
came to be passed by amending the original awards and thereby the original
awards would loose their originality and once the additional awards were
passed, the petitioners have to necessarily challenge the same and
accordingly, they rightly challenged the same in the present petitions.
19. In “M/s.USS Alliance versus The State of Uttar Pradesh and
others” in SLP (C) No(s). 23676/2022 dated 06-01-2023, the Hon'ble
Supreme Court referred to the above mentioned decision and held as under:
This Court in SLP (C) No. 20195/2017 titled “M/S
Ved Prakash Mithal and Sons Vs. Union of India”
decided on 08.08.2018 has interpreted Section 34 (3)
with reference to Section 33 of the Arbitration and
Conciliation Act, 19961, to hold that the disposal of an
application under Section 33 of the Act would be the
starting point for limitation. This decision was in the
context of an application moved by one of the parties
before the arbitral tribunal under Section 33 of the Act.
In the present case, the arbitral tribunal in terms of
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
powers given under sub-section (3) of Section 33 of the
Act had on its own initiative made corrections in the
award dated 18.04.2018, vide the award dated
05.05.2018. The suo-moto corrections in terms of sub-
section (3) of Section 33 of the Act can be made within a
period of 30 days from the date of arbitral award.
In our opinion, looking at the purpose and object
behind Section 34 (3) of the Act, which is to enable the
parties to study, examine and understand the award,
thereupon, if the party chooses and is advised, draft and
file objections within the time specified, the starting
point for the limitation in case of suomoto correction of
the award, would be the date on which the correction
was made and the corrected award is received by the
party. Once the arbitral award has been amended or
corrected, it is the corrected award which has to be
challenged and not the original award. The original
award stands modified, and the corrected award must be
challenged by filing objections. This interpretation
would be in terms and accord with the reasoning which
has been interpreted in the “M/S Ved Prakash Mithal
and Sons Vs. Union of India” (supra).
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
20. On going through the above judgments of the Hon'ble Supreme
Court, no doubt it is clear that once the arbitral award has been amended or
corrected, it is the corrected award which has to be challenged and not the
original award and time limit to challenge such award would start from the
date of modified award. This, in my opinion, would apply only in the event
if the application under Section 33 of the Act for rectification of errors, is
moved within the prescribed time, i.e. 30 days from the receipt of the
original arbitral award unless another period of time, that has been agreed
by the parties. This would mean that at any cost, the parties cannot be
permitted to agree for further period of time than the time limit prescribed
under Section 34 of the Act to challenge the original arbitral award, i.e.
three months and extended period of another 30 days as required under sub
section (3) of the Act, if sufficient cause is shown. Therefoe, Section 34 of
the Act insists that an application for setting aside the award can be filed
within three months (90 days) from the date of receipt of arbitral award and
another 30 days if sufficiennt cause is shown, i.e. 120 days in all and in case
any application is filed beyond 90 days, the same cannot be entertained. If
any application under Section 33 of the Act is moved within 90 days, the
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
same can be entertained subject to the other party agrees for the same.
Otherwise, if it is filed beyond 90 days, the same cannot be entertained even
though the other party agrees for the same for the reason that virtually, after
a period of 90 days, the parties to the award will loose the right to challenge
the arbitral award since the award attains the finality and becomes
enforceable. In fact, Section 33 of the Acts enables the parties only to get
rectification of computation or clerical errors occurred in the award and not
to seek review of the original award on merits. Therefore, immediately after
expiry of 90 days from the date of receipt of the artibtral award, it becomes
final and enforceable, while so, no party can be permitted to extend the
period of limitation for filing the application under Section 33 of the Act.
Therefore, this Court is of the view that the parties to the award, have to
necessarily move the application under Section 33 of the Act within 30 days
from the receipt of the award or another period of time, i.e. within 90 days
that should be agreed upon by the other party and not more than the said 90
days since by then, the right to challenge the award available for the parties
to the award under Section 34 of the Act would get lapsed. Therefore, this
Court is of the view that no one can violate the law either directly or
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
indirectly. If any application is entertained beyond the period of 90 days
under Section 33 of the Act for correction of clerical errors or interpretatin
of the award under the pretext that the original award would be merged with
the amended award and thereby, fresh period of limitation would start from
the date of passing of the amended award, which would certainly defeat the
object and reasons of the provision under Section 34 of the Act indirectly.
As observed earlier, when once the award becomes enforceable after lapse
of 90 days, no application under Section 33 of the Act can be moved by the
parties to the award. Therefore, if any application is moved under Section
33 of the Act within 30 days and another period not more than 90 days
agreed by both parties, the same can be entertained and amended award can
be passed by the arbitral tribunal, which can be merged with the original
award and the fresh limitation period would start from the date of passing of
the amended award otherwise, if it is filed even with a delay of one day after
90 days, it would be construed as time barred despite the other party agrees
for the same and it cannot be entertained.
21. In the present case, the original awards were passed on
29.09.2015 and admittedly, the petitioner Corporation has not moved any
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
application under Section 34 of the Act challenging the awards with in the
prescribed time limit of 90 days and hence, immediately, after expiry of 90
days, the awards became enforceable. Later, after a lapse of two years, the
petitioner Corporation has moved applications under Section 33 of the Act
seeking clerical errors occurred in the awards, which in the opinion of this
Court, are beyond the limitation period of 30 days as provided under
Section 33 of the Act or another period of time not more than 90 days
agreable by both parties as discussed supra and hence, the additional awards
passed by the learned Arbitrator cannot be merged with the original awards
and the limitation cannot be extended from the date of additional awards. In
terms of Section 34, once the limitation to challenge the awards expires, no
further limitation will be available to the petitioner Corporation. To put it
differently, what could not be achieved under Section 34 of the Act, cannot
be achieved under the pretext of filing applications under Section 33 of the
Act after expiry of 90 days.
22. In fact, when the petitioner moved the said applications after a
lapse of two years, the respondents were under bona fide impression that the
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
petitioner Corporation would honour the awards, which prompted them to
report no objection for entertaining the same. Here, the respondents never
expected that the petitioner Corporation, under the guise of seeking
rectification of clerical errors, later would challenge the awards, otherwise,
certainly they would not have reported no objection for entertaining the
applications filed under Section 33 of the Act. At the time of moving the
applications under Section 33 of the Act, the intention of the petitioner
Corporation can be drawn to the effect that it is only for the purpose of
honouring the awards and not to save the limitation to challenge the original
awards. Admittedly, once the petitioner Corporation lost the right to
challenge the awards invoking Section 34 of the Act within the prescribed
time limit, they cannot be permitted to take a vacillating stand and challenge
the awards. Further, as rightly contended by the learned Senior counsel
appearing for the respondents that once the corrected award amount is
admitted, no question of going back and dispute the admitted liability does
not arise and on this ground also, the present petitions are liable to be
dismissed.
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
23. In the light of the above discussion, the petitioner Corporation has
not made out case to entertain the present petitions. Accordingly, the
Original Petitions stand dismissed. No costs. Connected Applications if any
are closed.
Suk 15.06.2023
Index: Yes/No
Internet: Yes/No
https://www.mhc.tn.gov.in/judis
O.P.No.780 of 2017
KRISHNAN RAMASAMY, J.
suk
O.P.Nos.780 & 927 of 2017
15.06.2023
https://www.mhc.tn.gov.in/judis
