IRCON INTERNATIONAL LTD. Vs. BUDHRAJA MINING AND CONSTRUCTIONS LTD.
HIGH COURT OF DELHI
IRCON INTERNATIONAL LTD.
Budhraja Mining And Constructions Ltd.
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BADAR DURREZ AHMED, J. -
(1.) THESE petitions have been filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'said Act') against two separate orders both dated 11.08.2003 in respect of two separate Awards dated 23.05.2002 passed by the sole arbitrator. By virtue of the said orders dated 11.08.2003 certain computational/typographical errors have been sought to be corrected in the respective Awards dated 23.05.2002. The issues raised in both these petitions are identical and, thereforee, the same are being disposed of by this common judgment. The facts are also somewhat identical.
(2.) THE learned arbitrator had made Awards dated 23.05.2002 in both the cases. According to the respondent there were computational / typographical errors in the said Awards. thereforee, the respondent allegedly filed applications on 18.06.2002 seeking the correction of the said errors made in the said Awards. These applications for corrections were made under Section 33 of the said Act and it is alleged by the respondent that the same were sent to the learned arbitrator under certificate of posting on 18.06.2002. Under the Awards dated 23.05.2002, the petitioner had been given two months time for making payments. On 23.07.2002, the respondent acknowledged that payments had been made in terms of the said Awards. However, on 22.07.2002, the respondent had sent another letter which was also purportedly sent under certificate of posting to the learned arbitrator seeking a decision on its earlier applications of 18.06.2002. The petitioner received notices from the learned arbitrator on 30.07.2002 in respect of the said applications filed on behalf of the respondent under Section 33 of the said Act. On 20.08.2002 the petitioner filed its replies and took the objection with regard to limitation. Thereafter, the respondent also filed applications under Section 5 of the Limitation Act, 1963 for condoning the delay in filing the applications under Section 33 for correction of the computational/typographical errors. The learned arbitrator after hearing arguments passed the impugned orders dated 11.08.2003. In the said orders dated 11.08.2003 he observed that when the purported applications dated 18.06.2002 were sent by the respondent the learned arbitrator was not available in Delhi during that time. It was also observed that his office had also not received the applications dated 18.06.2002. Though, the reminder dated 22.07.2002 was received by the learned arbitrator. The arbitrator concluded that the respondent did send the applications under Section 33 of the said Act on 18.06.2002 though the same were not received by him or by his office. Furthermore, the learned arbitrator invoked the provisions of Section 5 of the Limitation Act and condoned the delay in filing the said applications under Section 33 of the said Act.
On these set of facts the questions that arise for consideration are: (i) Were the applications under Section 33 of the said Act filed within the period of 30 days stipulated in Section 33(1) of the said Act?
(ii) If not, could the delay be condoned by invoking the provisions of Section 5 of the Limitation Act, 1963?
The learned Counsel for the parties advanced their arguments on these issues. According to the learned Counsel for the petitioner, the purported application dated 18.06.2002 was admittedly not received by the learned arbitrator. That being the case, there was no delivery of the application and thereforee, mere posting of the application was not sufficient. This, he submitted, was on the assumption that the respondent did post the applications on 18.06.2002. He submitted that the applications ought to have been delivered to and received by the learned arbitrator within the period of 30 days and mere posting would not be sufficient. The learned Counsel for the petitioner further submitted that since this did not happen and the application was not filed within 30 days as prescribed under Section 33(1) of the said Act, the only avenue available to the respondent was to have the delay condoned provided such a delay could be condoned. In this context he submitted that the time periods stipulated under the said Act were absolute and could not be extended. thereforee, invoking the provisions of Section 29(2) of the Limitation Act, he submitted that Section 5 of the Limitation Act, 1963 could not be invoked so as to extend time for making an application under Section 33(1) of the said Act. For this proposition, he placed reliance on the following two decisions of the Supreme Court:
(i) Hukumdev Narain Yadav v. Lalit Narain Mishra : 3SCR31
(ii) Union of India v. Popular Construction Co.: 2001 (3) Arb. LR 345 (SC)
(3.) ON the other hand, the learned Counsel for the respondent submitted that the learned arbitrator had arrived at the conclusion that the applications under Section 33 of the said Act were sent by the respondents on 18.06.2002. He also submitted that the provisions of Section 5 of the Limitation Act were clearly applicable as there was no expressed bar on the extension of time in respect of applications under Section 33(1) of the said Act. It was also submitted on behalf of the respondent that even though the application dated 18.06.2002 was not received by the learned arbitrator as indicated in the impugned orders dated 11.08.2003, the learned arbitrator did receive the second application dated 22.07.2002 which was also sent by UPC and which contained a reference to the filing of an application dated 18.06.2002. It is because of this, according to the learned Counsel for the respondent that the learned arbitrator came to the conclusion that the delay, if any, could be condoned. The learned Counsel for the respondent finally submitted that the correction in the computational and the typographical errors was well within the powers of the learned arbitrator and after having condoned the delay he went ahead and made the corrections. thereforee, there is no infirmity in the impugned orders dated 11.08.2003. The learned Counsel for the respondent placed reliance on a decision of the Supreme Court in the case of Union of India v. Tecco Trichy Engineers andContractors 2005 (3) Scale 259 to indicate that the delay could be condoned.;
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