M/S M.B. PATIL CONSTRUCTIONS LTD. vs. THE EXECUTIVE ENGINEER AND ANR

1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 15TH DAY OF JULY 2022 BEFORE THE HON’BLE MR.JUSTICE S.VISHWAJITH SHETTY W.P.No.223253/2020 (GM-RES) C/W W.P.No.223254/2020 (GM-RES), W.P.No.223255/2020 (GM-RES), W.P.No.223256/2020 (GM-RES) BETWEEN: M/s. M.B.Patil Constructions Ltd., Having Corporate Office at 2nd Floor, Commercial Building No.1, Opp. Income Tax Building, Shankarsheth Road, Swaragate, Pune - 411 042, Maharashtra State. Rep. by Sri M.S.Mallikarjuna By his GPA Holder, Sri Dhanaji Venkatrao Patil, AGed about 43 years, Occ: Business, R/o Plot No.10, Konark Aditya Block, Golibar Maidan Chowk, Camp Pune - 411 001. …PETITIONER

(COMMON) (By Sri Ameet Kumar Deshpande, Sr. Counsel for Sri Ganesh S.Kalburgi, Adv.) R

2 AND: 1. The Executive Engineer,

PWP & IWTD Division,

Raichur Division,

Raichur District - 584 101. 2. Sri Arun Chowdapurkar,

Retired District & Sessions Judge,

Sole Arbitrator,

Kalaburagi District - 585 102. …RESPONDENTS

(COMMON) (By Sri Dhyan Chinnappa, AAG for Sri Krupa Sagar Patil, Adv. for R-1)

W.P.No.223253/2020 is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order dated 30.01.2020 passed on IA-2 in Commercial Arbitration Suit No.2/2019 on the file of the Prl. District & Sessions Judge, Kalaburagi, at Annexure-G.

W.P.No.223254/2020 is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order dated 30.01.2020 passed on IA-2 in Commercial Arbitration Suit No.3/2019 on the file of the Prl. District & Sessions Judge, Kalaburagi, at Annexure-G.

W.P.No.223255/2020 is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order dated 30.01.2020 passed on IA-2 in Commercial Arbitration Suit No.4/2019 on the file of the Prl. District & Sessions Judge, Kalaburagi, at Annexure-G.

W.P.No.223256/2020 is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order dated 30.01.2020 passed on IA-2 in Commercial Arbitration Suit No.5/2019 on the file of the Prl. District & Sessions Judge, Kalaburagi, at Annexure-G.

These petitions having been heard and reserved for orders on 28.06.2022, coming on for 'Pronouncement of orders', this day, the Court made the following: ORDER 1. These four writ petitions arise from a common award between the same parties and the dispute involved in all these writ petitions are identical, and therefore, with the consent of the learned Counsel appearing on both sides, all the petitions are clubbed, heard together and disposed of by this common order. 2. Brief facts of the case that would be relevant for the purpose of disposal of these writ petitions are, the petitioner herein was awarded four different contracts pursuant to the tender notification published by respondent no.1 and agreements were also executed by respondent no.1 in favour of the petitioner for the project - 'Improvements to Basavakalyan-Raichur Road' from KM 67 to 99.80 in Chittapur of Gulbarga District. Since there were certain disputes between the parties arising out of the contract, petitioner had approached this Court in CMP Nos.20005-

4 20009/2014 which was disposed of by this Court on 19.01.2015 appointing respondent no.2 as the Sole Arbitrator. 3. The learned Arbitrator had thereafter entered appearance and pursuant to the notices issued by him, parties have filed claim petition, statement of objections and also counter claim. The learned Arbitrator partly allowed the claim petition vide his common award dated 30.10.2018 and as against the said common award, respondent no.1 herein had filed four separate arbitration suits before the Principal District & Sessions Judge, Kalaburagi (hereinafter referred to as 'the Commercial Court') under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, 'the Act of 1996'). Along with the suit, respondent no.1 had also filed an application under Section 5 of the Limitation Act for condonation of delay, if any, caused in filing the arbitration suit. 4. The learned Judge of the Commercial Court vide the impugned order dated 30.01.2020 has allowed the said

5 applications and the delay caused in filing the arbitration suit was condoned. Being aggrieved by the same, the petitioner is before this Court. 5. Sri Ameet Kumar Deshpande, learned Senior Counsel appearing for the petitioner submits that the arbitration suits under Section 34 of the Act of 1996 were filed by respondent no.1 before the Commercial Court beyond the period of limitation and the Commercial Court has got jurisdiction to condone the delay only as provided under Section 34(3) of the Act of 1996. He submits that the arbitration suit is required to be filed within three months from the date the applicant has received the copy of the award and the Commercial Court can condone a maximum of 30 days delay thereafter, and if the delay is more than that, the same cannot be condoned. He submits that in the case on hand, the delay is much more than 30 days after expiry of three months period and therefore, the Commercial Court could not have condoned the same.

6 6. He submits that 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. In the case on hand, the award is passed on 30.10.2018 and the application is filed on 06.02.2019 which is much beyond the period provided under Section 33 of the Act of 1996. He submits that the learned arbitrator has no power to consider the application under Section 33 of the Act of 1996 if the same is filed after expiry of thirty days and therefore the order passed by him is a nullity and nonest in the eye of law. He submits that since the order under Section 33 of the Act of 1996 is passed without jurisdiction the limitation for filing application under Section 34(1) of the Act of 1996 commences from the date of receipt of award by applicant and not from the date the learned arbitrator has disposed of Section 33 application. He submits that no application was filed under Section 33 of the Act of 1996 but only a request letter was issued by respondent No.1. He submits that the petitioner was not heard by the learned Arbitrator before the award was corrected on the basis of a

7 letter submitted by respondent no.1 herein. In support of his contentions, he has relied upon the following judgments: (i) MUK LTD. VS UNION OF INDIA - AIR Online 2016 DEL 1; (ii) D.M.JAWHAR MERICAN VS ENGINEERS INDIA LTD. - (DLH) 2009 (3) 129; (iii) SIMPLEX INFRASTRUCTURE VS UNION OF INDIA - (2019)2 SCC 455; (iv) IRCON INTERNATIONAL LTD. BUDHRAJ MINING & ORS. - 2007(4) ARBLR 159 DELHI; (v) UNION OF INDIA VS SABOO MINERALS PVT. LTD. - 2003(3) RAJ 354. 7. Per contra, Sri Dhyan Chinnappa, learned Additional Advocate General appearing for respondent no.1 submits that it is not in dispute that the application under Section 33 of the Act of 1996 was filed for correction of the award after expiry of 30 days from the date of receipt of the copy of award. He submits that the order passed under Section 33 of the Act of 1996 merges with the award. He also submits that the petitioner has not challenged the order

8 dated 08.03.2019 passed by the learned Arbitrator allowing the application filed under Section 33 of the Act of 1996 for correction of the typographical errors in the award. He submits that the application under Section 33 of the Act of 1996 was filed to correct the CMP numbers and the correction now made by the learned Arbitrator enures to the benefit of both the parties and if the said correction is not made, the petitioner will not be put in a position to execute the awards. He submits that the order under Section 33 of the Act of 1996 was passed by the learned Arbitrator on 08.03.2019 and the arbitration suit under Section 34 of the Act of 1996 was filed before the Commercial Court on 09.07.2019, which is well within the period prescribed under Section 34(3) of the Act of 1996. 8. He submits that 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, and in addition to the

9 same, the Commercial Court has power to condone the delay of 30 days. He submits that the judgment in MUK Ltd.'s case supra and also in Ircon International Ltd.'s case has been passed in a proceeding where the challenge was made against the order passed under Section 33 of the Act of 1996, and therefore, the said judgments would not be applicable to the facts of this case. He submits that petitioner herein who is the beneficiary of the order passed under Section 33 of the Act of 1996 has thought it fit not to challenge the said order, and therefore, by its conduct, it has to be presumed that it has consented for such an order passed under Section 33 of the Act of 1996. In support of his arguments, he has relied upon the following judgments: (i) VED PRAKASH VS UNION OF INDIA - 2018(10) SCJ 280; (ii) STATE OF HIMACHAL PRADESH & ANR. VS HIMACHAL TECHNO ENGINEERS & ANR. - (2010)12 SCC 210; (iii) BOKARO & RAMGUR LTD. VS PRASUN KUMAR BANERJEE - AIR 1968 PAT 150,

10 (iv) NAGAR PALIKA, MIRZAPUR VS MIRZAPUR ELECT. SUPPLY CO. LTD. - AIR 1990 SC 2273, (v) RAFIQUE BIBI (DEAD) BY LRS VS SYED WALIUDDIN (DEAD) BY LRS & OTHERS - (2004)1 SCC 287. 9. He also refers to the award passed by the learned Arbitrator and submits that without assigning any reasons he has awarded a sum of more than hundred crores in favour of the contractor/petitioner which would be a huge burden to the State exchequer. 10. The undisputed facts of the case are that the award was pronounced by the learned Arbitrator on 30.10.2018 and the copy of the award was handed over to the parties on the very same date. Request under Section 33 of the Act of 1996 was made on 06.02.2019 for correction of the CMP numbers in the award and the learned Arbitrator had allowed the said application and had issued a corrected copy of the award on 08.03.2019. Arbitration suit before the Commercial Court was filed under Section 34 of the Act of

11 1996 on 06.07.2019 and the application IA No.II was also filed along with the suit to condone the delay, if any, caused in filing the suit. The Commercial Court vide the order impugned has held that the limitation to file the application/suit under Section 34 of the Act of 1996 has commenced in this case from 08.03.2019 onwards in view of the order passed under Section 33 of the Act of 1996 by the learned arbitrator and has exercised its jurisdiction to condone the delay of thirty days caused beyond the limitation period of three months provided under Section 34(3) of the Act of 1996 and accordingly allowed IA No.II filed for condonation of the delay. 11. The question that would arise for consideration in these petitions is –

"Whether the Commercial Court was justified in holding that the period of limitation to file an application/suit under Section 34 of the Act of 1996 commences from the date of the order passed under Section 33 of the Act of 1996 having regard to the facts and circumstances of the present case ?

12 12. Chapter VII of the Arbitration and Conciliation Act of 1996 provides for recourse against arbitral award. Section 34(1) of the Act of 1996 provides that recourse to a Court against the arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). 13. Sub-section (2) of Section 34 of the Act of 1996 provides the ground on which the arbitral award may be set- aside by the Court and sub-section 3 of Section 34 of the Act of 1996 provides for the period of limitation for filing an application under Section 34 of the Act of 1996. 14. Section 34(3) of the Act of 1996 reads as under:- “(3) An application for setting aside may not be made after three months have elapsed from the date o 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

13 months it may entertain the application within a further period of thirty days, but not thereafter.” 15. The limitation prescribed under Section 34(3) of the Act of 1996 for filing an application challenging the arbitral award is three months from the date on which the party making application has received the copy of award and the proviso to Section 34(3) of the Act of 1996 provides that if the Court is satisfied that the applicant was prevented by sufficient cause from making an application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. Therefore, it is clear that the Court before which, an application is filed under Section 34 of the Act of 1996 can entertain the application by condoning the delay of a maximum period of thirty days after expiry of three months period provided for filing the application and said Court has no power to condone any further delay beyond thirty days. 16. Reading of Section 34(3) of the Act of 1996 also makes it clear that if a request has been made under Section 33 of the Act of 1996 then the period of limitation is required

14 to be considered from the date on which the request has been disposed of by the Arbitral Tribunal. 17. Section 33 of the Act of 1996 provides for correction and interpretation of award; additional award and it reads as hereunder :- (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.

15 (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. (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.

16 18. From a reading of Section 33 of the Act of 1996, it is clear that an application for correction of any computation errors, clerical or typographical errors or any other errors of similar nature occurred in the award is required to be made within thirty days from the date of receipt of arbitral award, unless another period of time as agreed upon by the parties and the application under this provision is required to be made with notice to the other party. In view of Section 33(7) of the Act of 1996 any correction or interpretation under Section 33 of the Act of 1996 made to the arbitral award, will form part of the original award. 19. Learned Senior counsel for the petitioner has placed reliance on the judgment of the Delhi High Court in the case of MKU Limited vs. Union of India1 and has referred to para 24 of the said judgment which reads as follows :- 1 AIROnline 2016 Del 1

17 “24. A plain reading of Section 33(1) of the Act indicates that the time for filing the application provided under the Section is inflexible. An application for correcting errors under Section 33 of the Act can be made only within a period of 30 days from receipt of the arbitral award subject to the parties agreeing otherwise. In the present case, admittedly, there is no agreement or arrangement between the parties for extension of the period as specified under Section 33 of the Act. The Arbitrator derives his jurisdiction to act as such from the agreement between the parties and the provisions of the Act. Thus, the Arbitrator did not have the jurisdiction to entertain an application under Section 33 of the Act beyond the period of thirty days from the date of receipt of the Interim Award dated 12.02.2016. In my view, the application made by the respondent was clearly incompetent and the Arbitrator could not have entertained the same. 20. In the case of Ircon International Ltd., vs Budhraja Mining2, which has been relied by the learned Senior counsel for the petitioner, the Delhi High Court has held as follows :- “A plain reading of the aforesaid provisions indicates that, unless another period of time has been agreed upon by the parties, an application for correction of any computational errors or typographical errors has to be made to the arbitral Tribunal within 30 days from the receipt of the arbitral Award. It is also necessary to observe that the application has to be made with notice to the other party. Sub-section (3) of Section 33 also 2 2007 (4) ARBLR 159 Delhi

18 empowers the arbitral Tribunal to make such corrections on its own initiative within 30 days from the date of the arbitral Award. Sub-section (2) of Section 33 stipulates that the arbitral Tribunal, if it considers the request for corrections to be justified, shall make the corrections within 30 days from the receipt of the request and the same shall form part of the arbitral Award. It is, therefore, clear that there are three different sets of periods of limitation prescribed under the said provisions. The first is the period of 30 days of receipt of the Award by a party during which the said party can request the arbitral Tribunal to correct any computational or typographical errors in the Award. The second period is a period of 30 days for the arbitral Tribunal to make the correction. The third period prescribed is in the case where the arbitral Tribunal seeks to make a correction on its own initiative. The period prescribed is 30 days from the date of the arbitral Award. Since the arbitral Tribunal makes a correction under this provision, on its own initiative, the date of the receipt of the arbitral Award is not relevant and the clock starts running from the date of the arbitral Award itself. In the present case this provision is not in issue but it brings out the nature of the limitation periods prescribed for making corrections of computational errors/ typographical errors. The nature being that it is strictly time bound and cannot be extendable unless provided in the statute itself. The provision for extension of time has been made in Sub-section (6) of Section 33 and it only pertains to the time during which the tribunal may make a correction under Sub- section (2) or Sub-section (5) of the said Section 33. In other words, there is a specific provision for extending the time within which the Tribunal makes the correction after a request is received by it. There is, however, no provision enabling the Tribunal to extend the time for receiving the request from a party to make

19 corrections of computational and/ or typographical errors. This is sufficient indication of the fact that the legislature permitted extension of time to the arbitral Tribunal to decide on the question of corrections but did not permit extension of time by the arbitral Tribunal for receiving an application whereby a party makes a request for carrying out corrections. It is in this context that Sub- section (3) of Section 33 also gains importance. As pointed out above, that provision enables the arbitral Tribunal to make a correction on its own initiative and only 30 days time was granted for doing so and that too from the date of the arbitral Award. There is no provision like Section 33(6) which enables the arbitral Tribunal to correct an error on its own initiative beyond 30 days from the date of the arbitral Award. The position, therefore, is very clear that where the legislature permitted extension of time it did so expressly. In these circumstances, the inescapable conclusion would be that the legislative intent was that the delay, if any, in filing of an application under Section 33(1)(a) of the said Act could not be condoned by invoking the provisions of Section 5 of the Limitation Act.” 21. The learned Additional Advocate General appearing for the respondents during the course of his arguments has pointed out that the judgment in the case of MKU Limited (supra) and also in the case of Ircon International Ltd. (supra) have been rendered by the Delhi High Court wherein a challenge was made to the orders passed under Section 33 of the Act of 1996. He also submitted that the law laid down in the said cases are not in

20 dispute but the same cannot be made applicable to the facts of the present case as no challenge has been made by the petitioner herein to the order passed by the learned Arbitrator under Section 33 of the Act of 1996. 22. I find force in the said contention urged by the learned Additional Advocate General appearing for the respondents. Admittedly, no challenge has been made by the petitioner herein to the order passed by the learned Arbitrator under Section 33 of the Act of 1996 and therefore, the judgments in the case of MKU Ltd. (supra) and Ircon International Ltd. (supra) would not be applicable to the facts of this case. 23. In the case of D.M.Jawhar Merican vs Engineers India Limited3, the Delhi High Court was considering the question whether a party is entitled for extension of limitation under Section 34(3) of the Act of 1996, if the application filed under Section 33 of the Act of 1996, does not in fact constitute an application under Section 3 FAO (OS) No.445/2008 – 30.03.2009

21 33 of the Act of 1996. In the said case an application was filed under Section 33 of the Act of 1996 contending that he was entitled for higher amount of compensation than that was awarded by the learned Arbitrator. It is under these circumstances, in para 21 of the said judgment the Delhi High Court has observed as follows :- “21. We find merit in the aforesaid submission of learned counsel for respondent. In our view, merely because an application is styled as one under Section 33 of the Act the objector would not be entitled to the extension of limitation under Section 34(4) of the Act till the disposal of such an application, if otherwise the application, as filed, does not in fact constitute an application to "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". We have been shown the application preferred by the appellant as one under Section 33 of the Act dated 12.02.2005. The crux of the appellant‟s submission in this application was that he was entitled to the award of higher amount of compensation than that awarded by the learned Arbitrator. In the application the appellant had stated as follows: "8. The learned Arbitrator while passing the Final Award dated 18.01.2005, in para 39 at page 53 has committed an error by restricting the award amount to MR 211,250 on an alleged observation that the

22 Claimant himself has restricted the claim in a sum of MR 211,250. 9. ........................................ 10. It is submitted that according to the Claimant he is entitled to MR 418,750 for EIL Job No.3623 by splitting the same into 2 equal halves and MR 1,875 for EIL Job No.3606 and US$ 15,390 for EIL Job No.3371. The same also finds reference at page 12 of the Interim Award dated 23.04.2004. 11. The Claimant had correctly set out the same amounts in the Claim Petition dated 16th September, 2002 by claiming MR 209,375 being 50% of the commission payable for EIL Job No.3623 being MR 209,375 plus MR 1875 for EIL Job No.3606 totaling to MR 211,250 under the 1st head and another sum of MR 209,375 being the balance 50% commission being MR 209,375 for EIL Job No.3623 under the 2nd head. But an error occurred in the penultimate para in the claim petition dated 16th September, 2002 in so far as while adding up the claim amount in US$, the 50% of commission amount for EIL Job No.3623 being MR 209,375 was not taken into account. But soon thereafter the error was noticed and the Claimant filed a revised claim petition to correct the claim amount by claim petition dated 9th April, 2003 and the penultimate para was corrected. But at all times the Claimant claimed commission in a sum of MR 420,625 towards commission for EIL Job Nos.3623 and 3606 and US$ 15390 for Job No.3371 as commission. Apart from the commission amount the Claimant

23 also claimed another sum in MR 420,625 and US$ 15390 towards interest at 20% for 5 years on the claim amount. The modified Claim petition dated 9th April, 2003 was allowed. The error apparent in the Final Award, wherein it has been recorded that the Claimant has restricted his claim to MR 211,250 needs to be corrected and the full amount in the sum of MR 389,275 which the Hon‟ble Arbitrator has found the Claimant to be entitled to, may kindly be awarded in favour of the Claimant. Under these circumstances as stated herein above it would be just and proper and as such it is prayed that the Hon‟ble Arbitrator may be pleased to correct/modify the Final Award dated 18.01.2005 [under Section 33 of the Arbitration & Conciliation Act, 1996] and pass an Award thereby holding that the Claimant is entitled to a sum of MR 389,275 as commission in respect of EIL Job Nos.3623 and 3606 as observed and concluded by the Hon‟ble Arbitrator in para 39 of the Final Award dated 18.01.2005."" 24. In D.M.Jawhar Merican's case (supra) the Delhi High Court having found that the application under Section 33 of the Act of 1996 was not for correction of any typographical and clerical errors but for modification on the merits of the case had held that the starting point of

24 limitation for filing application under Section 34 of the Act of 1996 was from the date of receipt of copy of the award by the applicant and has further held that even if the starting point of limitation would have been taken from the date of the order passed under Section 33 of the Act of 1996, even then the application under Section 34 of the Act of 1996 was not filed within the period of limitation as provided under Section 34(3) of the Act of 1996 and therefore the High Court of Delhi has held that the Court trying the application under Section 34 of the Act of 1996 cannot entertain such an application which is filed beyond the period of thirty days after expiry of three months period from the date of award. 25. In the case of M/s Simplex Infrastructure Ltd. vs Union of India4 at paragraphs 13 and 14 the Honb’le Supreme Court has held follows :- “13. A plain reading of sub-section (3) along with the proviso to Section 34 of the 1996 Act, shows that the application for setting aside the award on the grounds mentioned in sub- section (2) of Section 34 could be made within three months and the period can only be extended for a further period of thirty days 4 AIR 2019 Supreme Court 505

25 on showing sufficient cause and not thereafter. The use of the words “but not thereafter” in the proviso makes it clear that the extension cannot be beyond thirty days. Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application. That is beyond the strict timelines prescribed in sub-section (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandate. 14. The respondent received the arbitral award on 31 October 2014. Exactly ninety days after the receipt of the award, the respondent filed an application under Section 34 of the 1996 Act before the District Judge, Port Blair on 30 January 2015. On 12 February 2016, the District Judge dismissed the application for want of jurisdiction and on 28 March 2016, the respondent filed an application before the High Court under Section 34 of the 1996 Act for setting aside the arbitral award. After the order of dismissal of the application by the District Judge, the respondent took almost 44 days (excluding the date of dismissal of the application by the District Judge and the date of filing of application before the High Court) in filing the application before the High Court. Hence, even if the respondent is given the benefit of the provision of Section 14 of the Limitation Act in respect of the period spent in pursuing the proceedings before the District Judge, Port Blair, the petition under Section 34 was filed much beyond the outer period of ninety days.” 26. In the case of M/s Simplex Infrastructure Ltd., (supra), the Hon’ble Supreme Court has held that the Court considering an application under Section 34 of the Act

26 of 1996 cannot entertain such an application which is filed beyond the period of thirty days after expiry of the limitation of three months for filing the application. 27. In the case of Union of India (Uoi) Another vs Saboo Minerals Pvt.Ltd.5, the High Court of Delhi was considering a case where the application under Section 33 of the Act of 1996 was filed beyond the period of thirty days and the said application was dismissed by the learned Arbitrator on the ground of delay and a contention was urged before the High Court that the period of limitation to file application under Section 34 of the Act of 1996 would start only after dismissal of the application under Section 33 of the Act of 1996. In the said case in para 4 of the judgment the Hon’ble Delhi High Court has held follows :- “4. To exclude the time taken in pursuing the application under Section 33 of the Act, the application filed under Section 33 has to be within the period prescribed in the Act. In a case where an application under Section 33 of the Act has been filed say after a period of six months from the date of receipt of the award by the party, it cannot be said that the time for filing objections under Section 34 of the Act would start from the date 5 2003 VAD Delhi 623

27 of rejection of such an application. If this contention is accepted, any party with a view to circumvent the limitation provided in Section 34 of the Act would make an application before the Arbitrator under Section 33 of the Act and wait for his decision and file objections after disposal of such an application, which was not even maintainable because of the same having been filed beyond the time prescribed in Section 33 of the Act. I am, therefore, not impressed with the arguments advanced by learned counsel for the appellant that the limitation would start from the date of rejection of the application under Section 33 by the Arbitrator. If the application under Section 33 had been filed within time, no doubt, the appellant would have been entitled to the exclusion of time taken in pursuing the said application but as the application under Section 33 of the Act itself was barred by time, in my opinion, the appellant cannot take advantage of Section 34(3) of the Act so as to start limitation from the date of rejection of such an application.” 28. In the present case though the application under Section 33 of the Act of 1996 was filed by the respondent herein after expiry of period of thirty days from the date of award, the Tribunal has entertained the same and carried out necessary typographical errors in the body of the award. It is not in dispute the correction made is with regard to the typographical error in mentioning the CMP numbers and this correction would enure to the benefit of all the parties to the award and though the respondent has filed the application

28 before the Commercial Court under Section 34 of the Act of 1996 contending that the period of limitation starts from the date of the order passed under Section 33 of the Act of 1996, the petitioner herein has not challenged the said order passed under Section 33 of the Act of 1996 by the learned Arbitrator. 29. Admittedly, the application/suit under Section 34 of the Act of 1996 was filed before the Commercial Court on 06.07.2019 and the order impugned has been passed on 30.01.2020. During the intervening period no challenge has been made by the petitioner to the order passed under Section 33 of the Act of 1996 and therefore it has to be presumed that it has impliedly agreed for such an order which also enures to its benefit and admittedly the petitioner has filed execution proceedings before the Commercial Court mentioning the corrected CMP numbers. 30. The Hon’ble Supreme Court in Ved Prakash Mithal and Sons vs Union of India6 which arose from a 6 2018 SCC OnLine SC 3181

29 case were the application filed under Section 33 of the Act of 1996 was dismissed by the learned Arbitrator and the Court before which Section 34 application was filed, had held that the application made under Section 34 of the Act of 1996 was time barred for the reason that there was no correction made to the award, though there was an application under Section 33 of the Act of 1996. It has been further held that the word disposal mentioned in Section 34(3) of the Act of 1996 can be either by allowing the application or by dismissing the application and therefore the period of limitation for filing an application under Section 34 of the Act of 1996 commences from the disposal of the application under Section 33 of the Act of 1996 by the learned Arbitrator. 31. From the reading of the various judgments referred to herein above, it is clear that- a) The period of limitation for filing an application under Section 34 of the Act of 1996 commences from the date the applicant receives the copy of the arbitral award and the period of limitation provided under

30 Section 34(3) of the Act of 1996 is three months from the date of the award; (b) The Court before whom the application under Section 34 is filed, can condone the further delay of thirty days beyond the period of three months, if the applicant shows that it was prevented by sufficient cause from making application within the said period of three months but the court has no power to condone the delay beyond thirty days having regard to the word used in the proviso to Section 34(3) of the Act, ‘but not thereafter’. (c) If a request is made under Section 33 of the Act, 1996 before the Tribunal, then the limitation under Section 34(3) for filing an application under Section 34 would commence from the date on which such request has been disposed of by the arbitral Tribunal/arbitrator. 32. Learned Additional Advocate General has argued that the petitioner is also a beneficiary of the order passed under Section 33 of the Act of 1996 and therefore he has not challenged the said order and he has filed execution petition mentioning the corrected CMP numbers in the said proceedings and therefore his conduct amounts to an implied agreement or consent for the order passed under Section 33

31 of the Act of 1996. In the case of Bokaro and Ramgur Ltd. Vs Prasun Kumar Banerjee7, the Full Bench of the Patna High Court at para 19 has observed as follows :- “19. Principles of waiver and acquiescence can also be pressed into service in support of the view taken above. In Article 1175 at page 637 of Halsbury's Laws of England. 3rd Edition. Vol. 14, it is stated: "Waiver is the abandonment of a right, and is express or implied from conduct. A person who is entitled to the benefit of a stipulation in a contract or of a statutory provision may waive it and allow the contract or transaction to proceed as though the stipulation or provision did not exist."

The petitioner Company in this case was entitled to put a stop to the Arbitrator proceeding in the matter on the expiry of 4 months after he entered on the reference because of the stipulation in the arbitration agreement imported under the Act but it waived it and allowed the proceeding to proceed as though the stipulation did not exist. In my opinion, it waived its right. In the same Volume in Article 1177 at page 638, the term 'acquiescence' has been stated to imply in its proper legal sense that a person abstains from interfering while a violation of his legal rights is in progress. The next Article says that acquiescence operates by way of estoppel and is an instance of estoppel by words or conduct. Of course, for the application of the principles of waiver and acquiescence and also to a certain extent for the 7 AIR 1968 Pat 150

32 application of the doctrine of estoppel by conduct knowledge of one's legal rights or true facts must be there. On the facts of the instant case as narrated above, I have no doubt that it was there.” 33. In the case of Nagar Palika, Mirzapur vs The Mirzapur Elect. Supply Co.Ltd.8 the Hon'ble Supreme Court was considering a case which arose from an appeal filed as against the award which was passed by the learned Arbitrator, with the consent of the parties, on all heads of disputes between the parties. When the said award was sought to be made the rule of the Court, the appellant therein had objected on the ground that the learned Arbitrator had ignored to decide the heads of disputes raised by it. That objection was over ruled by the Trial Court as well as by the High Court, since by consent of parties all the heads which were raised by the rival parties were decided by the learned arbitrator without assigning any reasons. In the said case, further objection was taken by the appellant that the learned Arbitrator had passed the award, after expiry of the outer limit fixed for disposal of the Arbitration case. This argument was rejected by the Hon’ble Supreme Court on the 8 AIR 1990 SC 2273

33 ground that the conduct of the parties is a major factor to waive the extension of time given by the Court and the time was taken as extended in the said case. 34. Even in the present case, though the respondents herein had disclosed before the Commercial Court at the time of filing the application under Section 34 of the Act of 1996 about the order dated 08.03.2019 passed by the learned Arbitrator under Section 33 of the Act of 1996, till date no steps have been taken by the petitioner herein to challenge the said order. Section 34(3) of the Act 1996 specifically states that if any order is passed under Section 33 of the Act, 1996 by the learned Arbitrator then the period of limitation commences from the date of the said order for filing an application under Section 34(1) of the Act of 1996. Therefore, if the petitioner had any grievance as against the order passed by learned arbitrator under Section 33 of the Act of 1996 it ought to have challenged the same before the appropriate forum. In the absence of any such challenge and having regard to the fact that the petitioner has filed an

34 execution petition with the corrected CMP numbers, it virtually amounts to an acquiescence and implied agreement for the order passed by the learned Arbitrator under Section 33 of the Act of 1996. 35. It is a settled principle of law that if a party has any grievance against any order passed by a Competent Authority or Court, the said order is required to be challenged before an appropriate forum in the manner known to law and if the same is not done, party would be bound by such an order. If the order is passed illegally or without following the procedure provided under law the said order cannot be brushed aside or ignored by the party who is adversely affected by the same. An illegal or irregular order passed without compliance of the procedure of law cannot be termed as an order passed without jurisdiction, and therefore not binding on the parties. 36. The Hon’ble Supreme Court in the case of Rafique Bibi (Dead) by LRs vs Syed Waliuddin (Dead)

35 by LRs and others9 at paragraphs 8, 9 and 10 has observed as follows :- “8. A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing Court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior Court failing which he must obey the command of the decree. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any callateral attack or in incidental proceedings. 9. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors., [1970] 1 SCC 670, it has been held :- "When the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. But where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction." 9 (2004) 1 Supreme Court Cases 287

36 10. It is not the plea of the appellant-judgment debtor- that the Court which passed the decree did not have the jurisdiction to do so. It is also not their case that a ground for eviction of the tenants on the ground of default in payment of arrears of rent was not available to the respondent-landlords within the meaning of the Delhi and Ajmer Act or the successor Rajasthan Act. The only submission made is that before passing the decree the Court should have afforded the tenant an opportunity of depositing the rent in arrears, which was not done. Firstly, we find merit in the submission of the learned counsel for the respondents that it was for the tenants to have invited the attention of the Court by making an application in that regard so as to avail an opportunity of wiping out the effect of their default which gave rise to cause of action to the respondents, by depositing the rent during the pendency of the suit. That having not been done, the appellant-tenants cannot be heard to urge any infirmity in the decree. Secondly, accepting it at its face value, in the eyes of law, the challenge seeks to expose a procedural irregularity which may, at best, result in the decree being termed as an 'illegal decree', but that in itself would not amount to branding the decree as 'without jurisdiction' or 'a nullity'. The plea which is sought to be urged in the execution proceedings was available to be raised by the tenants before the High Court in an appeal against the decree. Such a plea was not taken before the passing of the decree and cannot now be allowed to be urged during the execution proceedings. It is unfortunate that a decree of eviction passed in a suit commenced in the year 1956 and culminating in a final decree in the year 1986 is still starving for its execution.”

37 37. A plain reading of Section 33 of the Act of 1996 makes it clear that the learned arbitrator has jurisdiction to receive an application/request from a party to the award to correct computation, clerical and typographical errors and thereafter pass appropriate orders as provided under the said provision of law. If the Court which has jurisdiction fails to correctly exercise the same while passing an order, such order cannot be considered as one without jurisdiction. The existence of jurisdiction does not depend on the correctness of its exercise. The application under Section 33 of the Act of 1996 is filed before the learned arbitrator who has passed the award and therefore it cannot be said that he had no jurisdiction to receive it for consideration. If that is so, he also has jurisdiction to entertain the same. 38. The Hon'ble Supreme Court in the case of Hindusthan Commercial Bank Ltd vs Punnu Sahu (dead through legal representatives10 has held that the expression "entertain" would mean "adjudicate upon" or 10 AIR 1970 Supreme Court 1384

38 "proceed to consider on merits". In the case of Nusli Neville Wadia vs. Ivory Properties and Others11, the Hon'ble Supreme Court at paragraphs 16, 17, 33 and 36 has observed as follows :-

"16. Jurisdiction is the power to decide and not merely the power to decide correctly. Jurisdiction is the authority of law to act officially. It is an authority of law to act officially in a particular matter in hand. It is the power to take cognizance and decide the cases. It is the power to decide rightly or wrongly. It is the power to hear and determine. Same is the foundation of judicial proceedings. It does not depend upon the correctness of the decision made. It is the power to decide justiciable controversy and includes questions of law as well as facts on merits. Jurisdiction is the right to hear and determine. It does not depend upon whether a decision is right or wrong. Jurisdiction means power to entertain a suit, consider merits, and render binding decisions, and "merits" means the various elements which enter into or qualify plaintiff's right to the relief sought. If the law confers a power to render a judgment or decree, then the court has jurisdiction. The court must have control over the subject matter, which comes within classification limits of law under which Court is established and functions.

39 court. Jurisdiction relates to a class of cases to which a particular case belongs. Jurisdiction is the authority by which a judicial officer takes cognizance and decides the cases. It only presupposes the existence of a duly constituted court having control over subject matter which comes within classification limits of the law under which court has been established. It should have control over the parties litigant, control over the parties' territory, it may also relate to pecuniary as well as the nature of the class of cases. Jurisdiction is generally understood as the authority to decide, render a judgment, inquire into the facts, to apply the law, and to pronounce a judgment. When there is the want of general power to act, the court has no jurisdiction. When the court has the power to inquire into the facts, apply the law, render binding judgment, and enforce it, the court has jurisdiction. Judgment within a jurisdiction has to be immune from collateral attack on the ground of nullity. It has corelation with the constitutional and statutory power of tribunal or court to hear and determine. It means the power or capacity fundamentally to entertain, hear, and determine. xxx xxx xxx

40 xxx xxx xxx

41 the order was brought to its notice by the respondents at the time of filing the application under Section 34 of the Act of 1996 before the Commercial Act, the petitioner has not taken any steps to challenge the said order. 40. The learned arbitrator undoubtedly has jurisdiction to entertain an application under Section 33 of the Act of 1996, and if he has passed an illegal or erroneous order it cannot be said that the same is without jurisdiction and if that is so, then in view of the judgment of the Hon’ble Supreme Court in the case of Rafique Bibi (supra) the petitioner is required to challenge the order passed by the learned Arbitrator under Section 33 of the Act of 1996 before the competent forum. Unless the petitioner successfully challenges the said order passed by the learned Arbitrator under Section 33 of the Act of 1996 it is not open for it to raise a contention in the proceedings under Section 34 of the Act of 1996 that the limitation for filing an application under Section 34 of the Act of 1996 should be taken into consideration from the original date of award and not from

42 the date of the order passed under Section 33 of the Act of 1996. Undisputedly the learned arbitrator has allowed the application made under Section 33 of the Act of 1996 and consequently the error in the award has been corrected and therefore the correction made becomes the part of original award. 41. In the case of the State of Himachal Pradesh and another vs Himachal Techno Engineers and another12, the Hon’ble Supreme Court in paragraphs 14 to 19 has held as follows :- “14. The High Court has held that "three months" mentioned in section 34(3) of the Act refers to a period of 90 days. This is erroneous. A "month" does not refer to a period of thirty days, but refers to the actual period of a calendar month. If the month is April, June, September or November, the period of the month will be thirty days. If the month is January, March, May, July, August, October or December, the period of the month will be thirty-one days. If the month is February, the period will be twenty-nine days or twenty-eight days depending upon whether it is a leap year or not. 12 (2010) 12 Supreme Court Cases 210

43 15. Sub-section (3) of Section 34 of the Act and the proviso thereto significantly, do not express the periods of time mentioned therein in the same units. Sub-section (3) uses the words "three months" while prescribing the period of limitation and the proviso uses the words "thirty days" while referring to the outside limit of condonable delay. The legislature had the choice of describing the periods of time in the same units, that is, to describe the periods as "three months" and "one month" respectively or by describing the periods as "ninety days" and "thirty days" respectively. It did not do so. Therefore, the legislature did not intend that the period of three months used in sub-section (3) to be equated to 90 days, nor intended that the period of thirty days to be taken as one month. 16. Section 3(35) of the General Clauses Act, 1897 defines a "month" as meaning a month reckoned according to the British calendar. 17. In Dodds v. Walker - (1981) 2 All ER 609 (HL), the House of Lords held that in calculating the period of a month or a specified number of months that had elapsed after the occurrence of a specified event, such as the giving of a notice, the general rule is that the period ends on the corresponding date in the appropriate subsequent month irrespective of whether some months are longer than others. To the same effect is the decision of this Court in Bibi Salma Khatoon v. State of Bihar - (2001) 7 SCC 197. 18. Therefore when the period prescribed is three months (as contrasted from 90 days) from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a

44 result, depending upon the months, it may mean 90 days or 91 days or 92 days or 89 days. Re : Question (iii) 19. As the award was received by the Executive Engineer on 12.11.2007, for the purpose of calculating the three months period, the said date shall have to be excluded having regard to Section 12(1) of Limitation Act, 1963 and Section 9 of General Clauses Act, 1897. Consequently, the three months should be calculated from 13.11.2007 and would expire on 12.2.2008. Thirty days from 12.2.2008 under the proviso should be calculated from 13.2.2008 and, having regard to the number of days in February, would expire on 13.3.2008. Therefore the petition filed on 11.3.2008 was well in time and was not barred by limitation.” 42. In the case on hand, the original award was passed on 30.10.2018, the application under Section 33 of the Act of 1996 was filed on 06.02.2019 and the order under Section 33 of the Act of 1996 was passed by the learned Arbitrator on 08.03.2009. If the limitation for filing application under Section 34 of the Act of 1996 before the Commercial Court is taken into consideration from the date of the order passed by the learned Arbitrator under Section 33 of the Act of 1996, the period of three months should be calculated from 09.03.2019 and the same would expire on

45 08.06.2019. The period of thirty days under the proviso to Section 34(3) of the Act of 1996 is required to be calculated from 09.03.2019 and it would expire on 08.07.2019. The application under Section 34 of the Act of 1996 was filed before the Commercial Court on 06.07.2019 and therefore the said application is within the period of limitation as provided under Section 34(3) of the Act of 1996 and the Commercial Court in its discretion has exercised its power under Section 34(3) of the Act of 1996 and has condoned the delay in filing the application which was beyond the period of three months from the date of order passed under Section 33 of the Act of 1996, but was within the thirty days after the expiry of the three months period. This order passed by a Commercial Court having regard to the facts and circumstances of this case cannot be therefore held to be bad in law and accordingly, I answer the question for consideration in the affirmative. Under the circumstances, I do not find any good ground to interfere with the order's passed by the Commercial Court, which are impugned in

46 these writ petitions. Accordingly, the writ petitions are dismissed. Sd/- JUDGE sn