State of W.B. and Others vs M/s. B.B.J. Construction Co. Ltd.

Sanjib Banerjee, J.—A point of limitation has been raised by the respondent at the outset. The present petition is for challenging an arbitral award u/s 34 of the Arbitration and Conciliation Act, 1996. It is not in dispute that the award, passed on June 1, 2001, was made available to the petitioner on the same day. The petitioner has accepted as such in a subsequent application filed before the arbitrator. The present petition has been verified on October 4, 2001. Even if it is assumed that the present petition was filed on the same day, it was filed more than three months and thirty days from the date of the award. Such position has not been disputed by the petitioner.

At paragraph 14 of the petition it is averred that shortly upon the award being made, the petitioner carried an application u/s 33 of the 1996 Act before the arbitrator and such application was rejected by an order of July 6, 2001. The petitioner seeks to compute the period relevant for section 34(3) of the 1996 Act from the date of dismissal of the petitioner''s application by the arbitrator. If that is the relevant date as the petitioner insists it is, the petition has been filed within three months from such date.

The respondent says that section 34(3) of the Act must be seen in its substance. According to the petitioner, it is not the nomenclature of an application that describes its character but it is the content and purport of the application that determines its nature, section 33(1) of the 1996 Act has two limbs to it. Under the first part, a party to an arbitral reference may, within thirty days from the date of receipt of the arbitral award, request the arbitral tribunal to correct any computation errors or any clerical or typographical errors or any other errors of a similar nature occurring in the award. The second limb of the sub-section is of no relevance in the present context.

The respondent says that though the application filed by the petitioner before the arbitrator carried a reference to section 33 in its opening page, it was not an application for correcting any computation error or any clerical or typographical error or any other error of a similar nature. The respondent first refers to the order of dismissal of the application of July 6, 2001 where the arbitrator recorded that the application was in the nature of a review. It may not be enough to shut out the petitioner on the strength of the arbitrator''s interpretation of the relevant application and, in the circumstances, the Court is called upon to assess the nature of the application that was carried to the arbitrator by the petitioner subsequent to the award being rendered.

A copy of the relevant application has been appended to the petition and it contained nine grounds. None of the grounds referred to any computation or clerical or typographical error or any error of similar nature. Each of the grounds required the arbitrator to revisit the relevant issue and to make a reassessment of the matters covered thereby. Indeed, the application signed off with, inter alia, the following sentence:

The respondent submits that the review be made by the learned Arbitrator u/s 33 and subsections there under the Arbitration and Conciliation Act, 1996.

In the light of the application that was taken before the arbitrator subsequent to the award being passed, the arbitrator cannot be faulted for regarding it as one for review. The arbitrator rejected the application by indicating reasons which are not relevant for the present purpose.

Section 34(3) of the 1996 Act mandates that an application for setting aside an arbitral award may not be made after three months have elapsed from the date on which the party making the application had received the arbitral award or, if a request had been made u/s 33, from the date on which that request had been disposed of by the arbitral tribunal. There is no doubt that an order of rejection of an application u/s 33 of the 1996 Act would also be an order disposing of the relevant application. However, section 34 makes an exception to the rule only in case of an application being carried for correction of any error of computation or clerical or typographical error or error of similar nature. That section 33 has been referred to in section 34(3) of the Act is to avoid the compendious reference to the substance of section 33, but it cannot be said that merely because section 33 finds reference in section 34(3) of the Act, the substance of the application which is passed off as an application u/s 33 of the Act need not be gone into for the purpose of determining the starting point of the clock u/s 34(3) of the Act. It would not do for an award-debtor or any party to an arbitral reference to merely cite section 33 at the head of its application and not carry any matter covered by section 33 of the Act in the body thereof and later assert that the time stood still for the duration that the application remained pending before the arbitrator.

The petitioner seeks to rely on section 14 of the Limitation Act, 1963 and refers to a judgment reported at State of Goa Vs. Western Builders, for the proposition that despite the strict mandate of section 34(3) of the 1996 Act, it leaves room for section 14 of the Limitation Act to be accommodated therein. The principle cannot be doubted and it is obvious that if a party has instituted bona fide proceedings and prosecuted a matter of similar nature before a wrong forum in good faith, the time taken by such party in pursuing the earlier proceedings before the wrong forum would be excluded for the purpose of computing the period of limitation u/s 34(3) of the 1996 Act. But there are several conditions which are attached to the applicability of section 14 of the Limitation Act to a particular case. u/s 14(1) of the 1963 Act, the previous proceedings before the seemingly erroneous forum should relate "to the same matter in issue." u/s 14(2) of the 1963 Act, the application before the seemingly erroneous forum should have covered "the same relief as sought in the subsequent proceedings before the proper forum.

It can scarcely be accepted that a review of an arbitral award can be treated on the same footing as a challenge to an arbitral award. It does not appear that the application carried by the petitioner before the arbitrator related to the same matter in issue as in the present petition. It further does not appear that the application filed by the petitioner before the arbitrator was for the same relief that the petitioner canvasses in the present proceedings.

In any event, there is a question of bona fides and good faith which has to be assessed before the benefit u/s 14 of the 1963 Act can be conferred on a party for maintaining the subsequent proceedings. But such assessment is not called for in the present circumstances since the very applicability of section 14 of the 1963 Act is impermissible.

Limitation is a prescription of repose and unless the statute permits the Court an element of discretion--by way of an application for condonation of delay, for example--the Court has no power to invent a device to give relief to a person who may appear to have been hard done by. Since proceedings u/s 34 of the 1996 Act are regarded as original proceedings to which section 5 of the 1963 Act does not apply, the Court is left with no alternative but to refuse to entertain the present petition as it has not been carried to this Court within the time permitted by section 34(3) thereof.

A.P. No. 244 of 2001 is not received as being barred by limitation. There will be no order as to costs.

Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.