Case Note & Summary
The writ petitions challenged the order of the Commercial Court condoning the delay in filing arbitration suits under Section 34 of the Arbitration and Conciliation Act, 1996. The petitioner, a construction company, was awarded four contracts for road improvement. Disputes arose, leading to arbitration. The Sole Arbitrator passed a common award on 30.10.2018 partly allowing the claim. The respondent, the Executive Engineer, filed an application under Section 33 on 06.02.2019 for correction of CMP numbers, which the Arbitrator allowed on 08.03.2019. The respondent then filed arbitration suits under Section 34 on 09.07.2019, along with an application under Section 5 of the Limitation Act for condonation of delay. The Commercial Court condoned the delay. The petitioner argued that the Section 33 application was filed beyond the 30-day period, making the correction order null and void, and that limitation for Section 34 began from the original award date. The respondent contended that the correction order merged with the award, limitation ran from 08.03.2019, and the suits were within time. The High Court was to decide whether the Commercial Court could condone delay beyond the permissible period under Section 34(3). The judgment excerpt does not contain the final decision.
Issue of Consideration
Whether the Commercial Court had jurisdiction to condone delay in filing the arbitration suit under Section 34 of the Arbitration and Conciliation Act, 1996 when the application under Section 33 for correction of the award was filed beyond the 30-day period?
Law Points
- limitation for challenging arbitral award under Section 34 commences from date of receipt of award
- Section 33 application must be filed within 30 days of receipt of award
- order under Section 33 passed without jurisdiction is nullity
- limitation cannot be extended beyond statutory period under Section 34(3)
- condonation of delay beyond 30 days after expiry of three months is not permissible
Case Details
2022 LawText (KAR) (07) 2
W.P.No.223253/2020 (GM-RES) C/W W.P.No.223254/2020, W.P.No.223255/2020, W.P.No.223256/2020 (GM-RES)
Hon’ble Mr. Justice S. Vishwajith Shetty
Sri Ameet Kumar Deshpande, Senior Counsel for Sri Ganesh S.Kalburgi for petitioner; Sri Dhyan Chinnappa, Additional Advocate General for Sri Krupa Sagar Patil for respondent No.1
M/s. M.B.Patil Constructions Ltd.
1. The Executive Engineer, PWP & IWTD Division, Raichur Division. 2. Sri Arun Chowdapurkar, Retired District & Sessions Judge, Sole Arbitrator
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Nature of Litigation
Writ petitions under Articles 226 and 227 of the Constitution of India challenging the order of the Commercial Court condoning delay in filing arbitration suits under Section 34 of the Arbitration and Conciliation Act, 1996.
Remedy Sought
Quashing of the order dated 30.01.2020 passed on IA-2 in Commercial Arbitration Suit Nos. 2/2019 to 5/2019 by the Principal District & Sessions Judge, Kalaburagi.
Filing Reason
The Commercial Court condoned the delay in filing the arbitration suits, which the petitioner contends was beyond the statutory condonable period under Section 34(3) of the Act.
Previous Decisions
The Sole Arbitrator passed a common award on 30.10.2018; the Arbitrator allowed an application under Section 33 on 08.03.2019; the Commercial Court condoned the delay on 30.01.2020.
Issues
Whether the Commercial Court had jurisdiction to condone delay in filing the arbitration suit under Section 34 of the Act when the application under Section 33 for correction of the award was filed beyond the 30-day period prescribed under Section 33?
Whether the limitation for filing an application under Section 34 commences from the date of the original award or from the date of the order disposing of the Section 33 application, when the Section 33 application itself was filed beyond the statutory period?
Submissions/Arguments
Petitioner argued that the Section 33 application was filed after the 30-day period, rendering the correction order void and that limitation for Section 34 began from the original award date, so the Commercial Court could not condone delay beyond the 30-day grace period after the three-month limitation.
Respondent argued that the order under Section 33 merges with the award, limitation runs from the date of disposal of the Section 33 application, and the suits were filed within time; also that petitioner did not challenge the Section 33 order and the correction benefits both parties.
Judgment Excerpts
The learned Arbitrator partly allowed the claim petition vide his common award dated 30.10.2018
the Commercial Court has got jurisdiction to condone the delay only as provided under Section 34(3) of the Act of 1996
the application for correction of award is required to be filed within 30 days from the date of receipt of award as provided under Section 33 of the Act of 1996
the order passed by him is a nullity and nonest in the eye of law
The order passed under Section 33 of the Act of 1996 merges with the award
the limitation prescribed for challenging the award is three months, and therefore, the actual number of days in the three months from the date of the order passed under Section 33 of the Act of 1996 is required to be taken into consideration
Procedural History
Petitioner awarded four contracts for road improvement; disputes arose; petitioner approached High Court for arbitrator appointment; High Court appointed Sole Arbitrator on 19.01.2015; Arbitrator passed common award on 30.10.2018; respondent No.1 filed request under Section 33 on 06.02.2019 for correction; Arbitrator corrected award on 08.03.2019; respondent No.1 filed four arbitration suits under Section 34 on 09.07.2019 with application under Section 5 of Limitation Act for condonation of delay; Commercial Court condoned delay on 30.01.2020; petitioner filed writ petitions challenging condonation.
Acts & Sections
- Arbitration and Conciliation Act, 1996: 33, 34, 34(1), 34(3)
- Limitation Act, 1963: 5
- Constitution of India: 226, 227
