INDU MALHOTRA,J. - (1.) Leave granted. 1. The present Civil Appeal arises from a Petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 by the Appellant-Bijli Vitrain Nigam to challenge the arbitral award dated 27.04.2018 passed by a three-member tribunal (2:1) in favour of the respondent company.
(2.) The issue which has arisen for our consideration is as to whether the period of limitation for filing the Petition under Section 34 would commence from the date on which the draft award dated 27.04.2018 was circulated to the parties, or the date on which the signed copy of the award was provided. (i) The background facts emanate from a Service Level Agreement dated 02.05.2011 executed by the appellant-corporation in favour of the Respondent-company providing call centre services. Clause 13 of the Agreement provided for resolution of disputes through arbitration by a three-member tribunal, under the Arbitration and Conciliation Act, 1996. Clause 13 reads as : "13. Arbitration All matter question, disputes, differences and/or claims arising out of and/or concerning and/or in connection and/or in consequences or relating to the Contract whether or not obligations of either or both parties under the Contract be subsisting at the time of such dispute and whether or not the contract has been terminated or purported to be terminated or completed, shall be referred to the arbitration which shall be conducted by three arbitrators, one each to be nominated by the Service Provider and the Nigam (Arbitrator to be approved by the MD DHBVNL or authority of the Nigam) and the third to be named by the president of the institution of Engineers, India. If either of the parties fails to appoint its arbitrator within thirty (30) days after receipt of a notice from the other party invoking the arbitration clause, the president of the institution of Engineers, India, shall have the power at the request of either of the parties, to appoint the arbitrator. A certified copy of the order of the institution of engineers (India) making such an appointment will be furnished to each of the parties. The decision of the majority of the arbitrators shall be final and binding upon the parties. The parties to the contract agree that the cost of arbitration shall be as per instructions to the Nigam issued/prevalent on the date of appointment of arbitral tribunal. The arbitrators may, from time to time, with the consent of the parties enlarge the time for making the award. In the event of any of the aforesaid arbitrators dying, neglecting, resigning or being usable to act for any reason, it will be lawful for the party concerned to nominate another arbitrator in place of the outgoing arbitrator. The arbitrator shall have full powers to review and/or revise any decision, opinion, direction, certification or valuation of the Engineer in consonance with the Contract, and neither party shall be limited in the proceedings before such arbitrators to the evidence or arguments put before the engineer for the purpose of obtaining the said decision. Subject to aforementioned provisions, the provisions of the Arbitration and Conciliation Act, 1996 and the Rules there under any statutory modifications thereof for the time being enforce, shall be deemed to apply to the Arbitration proceedings under the clause." (ii) On 16.10.2014, the appellant corporation terminated the Service Level Agreement, which led to disputes between the parties. The disputes were referred to arbitration by a three-member tribunal. (iii) The arbitral tribunal orally pronounced the award [2:1] on 27.04.2018, whereby the claims of the respondent company were allowed. The parties were informed that the third arbitrator had disagreed with the view taken by the majority of arbitrators, and would be rendering his separate opinion. A copy of the draft award was provided to the parties to point out any computation, clerical or typographical errors in the award on the next date of hearing. The proceedings of the tribunal dated 27.04.2018 read as under: "27.04.2018 Present:- Sh. Nishant Shrivastava, Advocate for the claimant with Sh. Ankur Bhatia, M.D. of the Claimant. Sh. Ashish Goyal, Advocate and Sh. Sanjeev Sharma, JE for the respondent. Vide separately recorded award dated today, claims of the claimant have been allowed with cost. Dr. Shiva Sharma has agreed with same, whereas Sh. D.S. Yadav has disagreed. He shall file his separate award. Copies free of costs, of the award have been supplied to both the Ld. Counsels for the parties. To come up on 12.05.2017, at 4:30 p.m. for award of Sh. D.S. Yadav, Arbitrator. On that date, parties are also required to show any computation error, any clerical or typographical error or any other error of similar nature occurred in the award if any. Vinod Jain, D&S Judge(retd.) Presiding Arbitrator Sh. Shiva Sharma, D&S Judge (retd.) Sh.D.S. Yadav, Director, DHBVN (retd.)" (emphasis supplied) The matter was next posted to 12.05.2018. (iv) On 12.05.2018, a copy of the dissenting opinion was provided by the third arbitrator to the parties (even though the opinion was dated 27.04.2018). The matter was then posted to 19.05.2018, for the parties to point out any typographical or clerical mistakes in the dissenting opinion delivered by the third arbitrator. The order dated 12.05.2018 reads as : "12.05.2018 Present:- Sh. Nishant Shrivastava, Advocate for the claimant Sh. Sanjeev Sharma, JE for the respondent. Arbitrator Sh. D.S. Yadav has filed his own dissenting Award. Copies free of cost have been supplied to both the parties to these arbitration proceedings. Both the parties have not pointed out any computation or clerical error etc. in the award dated 27.04.2018. Now to come up on 19.05.2018 at the same venue to point out any typographical or clerical mistakes if any in the award of today given by Sh. D.S. Yadav. Arbitrator. Venue the same. Also on that date original record should be handed over to the Ld. Counsel for the claimant for safe custody with pen drives of the record to the other party as well as to the Arbitrators." (emphasis supplied) (v) On 19.05.2018, the tribunal recorded that both the parties had not filed any application to point out any clerical or typographical mistakes in the award, or dissenting opinion. On this date, the signed copy of the arbitral award was provided to both the parties, and the proceedings were terminated. The proceedings of 19.05.2018 read as : "19.05.2018 Present:- Sh. Nishant Shrivastava, Advocate for the claimant Sh. Ashish Goyal, Advocate with Sh. Sanjeev Sharma, JE for the respondent. Original record has been handed over to Sh. Nishant Shrivastava, Advocate for its safe custody with him and for its production before the appropriate authority in case of need. Pen drives of the record have been provided to both the counsels as well as to the arbitrators. Record is comprised of two files. First file of pleadings is comprised of 270 pages and second file of awards, evidence, zimini orders and misc. papers is comprised of 596 pages. Awards (signed copies) have also been provided to Ld. Counsel for both the parties free of cost. Both the parties also not filed any applications to point out any clerical or typographical mistakes in the awards. Proceedings now come to an end, so are hereby terminated." (emphasis supplied) (vi) The Appellant-corporation filed its Objections under Section 34 on 10.09.2018 before the Ld. Civil Court, Hisar, Haryana vide Arbitration Petition No. 316/2018 to challenge the award dated 27.04.2018, along with an Application for condonation of delay. It was submitted by the appellant corporation that the objections were filed within the period prescribed by Section 34(3) i.e. within 3 months and 30 days from the date of receipt of the signed award on 12.05.2018. (vii) The Civil Court dismissed the Application for condonation of delay vide Order dated 14.02.2019. It was held that the Appellant had received the majority award on 27.04.2018. Thus, the period of limitation starts running from the same date. Accordingly, the period of limitation of three months starts from 27.04.2018 i.e. the date on which the Appellant received the arbitral award. The proviso to Section 34(3) provides that if the Court is satisfied that the applicant was prevented from sufficient cause from making the application within 3 months, it may entertain the application within a further period of 30 days. In the present case, the application u/S. 34 was filed even after the expiry of the further period of 30 days. Merely because the dissenting opinion was erroneously styled as an award by the minority arbitrator, it cannot be said that the dissenting opinion attains the status of an award. Consequently, the objections were dismissed solely on the ground of delay. (viii) The appellant corporation filed Appeal No. 1954/2019 (O&M) under Section 37 of the Arbitration Act before the High Court. The High Court vide the impugned Order dated 11.12.2019 affirmed the Order passed by the Civil Court. It was held that a reading of Section 31 clearly reflects that once an award is signed and communicated by the majority of arbitrators, the same would constitute an "award". The signed copy of the majority award i.e. signed by two of the three arbitrators was received on 27.04.2018, and u/S. 34(3), the objections had to be filed within 3 months, which would expire on 27.07.2018. Even if the benefit of 30 days had been granted to the Appellants, the objections ought to have been filed by 26.08.2018, whereas the objections had been filed on 10.09.2018. There was no infirmity in the judgment of the Civil Court, and accordingly, the Appeal was dismissed. (ix) Aggrieved by the rejection of the objections under Section 34 on the ground of delay, the appellant corporation has filed the present Appeal.
(3.) Submissions of the parties (i) The appellant corporation inter alia contended that its objections had been erroneously dismissed by the Additional Civil Judge, as well as the High Court on the sole ground of limitation, and not on merits. It was submitted that reference to the 'arbitral award' in the Arbitration Act includes both the majority award as well as the minority opinion. Section 31(1) of the Act provides that all the members of the tribunal shall sign the award. Section 31(2) which permits an award to be rendered so long as it is signed by the majority of the members, and reasons for omission of the signature of the third arbitrator is mentioned, applies only in the case of a unanimous award. Section 31(2) has no application when there is dissenting view rendered by one of the arbitrators. Section 34 of the Act provides for objections to be filed against the arbitral award, and not the majority award alone. Consequently, the time limit to file objections against an award under Section 34(3) of the Act, does not relate to only the majority award, but to the arbitral award, which includes the opinion of the dissenting member of the tribunal. It was contended that if the majority award was taken to mean the arbitral award, the dissenting opinion of the minority would have no relevance. Such a view would cause grave prejudice to the award debtor. It was further submitted that even though the award of the majority was pronounced on 27.04.2018, the tribunal posted the matter on 12.05.2018 to enable the parties to point out any correction, or any typographical or clerical error in the award. On 12.05.2018, the dissenting opinion was pronounced, and a copy was provided to the parties. The matter was next posted on 19.05.2018, to consider any application for correction in the opinion of the minority. Since no application for correction of the award, or the minority opinion, was filed by the parties, the tribunal terminated the proceedings. It was further submitted that the dissenting opinion has been held to be the correct view by the Courts in various cases. Reliance was placed on the judgment of this Court in Ssangyong Engineering and Construction Co. Ltd. v. NHAI., 2019 (15) SCC 131. wherein the dissenting opinion was upheld as being the correct view, and was affirmed. Reference was made to the judgment of the Bombay High Court in Axios Navigation v. Indian Oil Corporation, 2012 SCC Online Bom 4. wherein it was held that the view of the minority was relevant for the adjudication of objections under Section 34 of the Act. (ii) On the other hand, the Respondents contended that the objections filed by the appellant corporation under Section 34 of the Arbitration Act are barred by limitation, and ought to be dismissed as such. The contention of the Respondent is that since the majority award was pronounced on 27.04.2018, the limitation period applicable under Section 34(3) would commence from this date. The Respondent placed reliance on Section 34(3) of the Act to submit that a party may file objections to the award within a period of three months from the date of receipt of the award. On sufficient cause being shown to the satisfaction of the Court, the three months period could be extended by an additional period of thirty days. The Respondent submitted that the time for filing objections was available till 26.07.2018, or if sufficient cause was made out, an additional period of 30 days' which expired on 26.08.2018. The dissenting opinion of the minority member was not an award for the purposes of computing the limitation period prescribed under sub-section (3) of Section 34. Section 29(1) of the Act contemplates that the decision of the majority of members of the tribunal, is the arbitral award. Reliance was placed on Section 31(2) of the Act which provides that the signature of all the members of the tribunal was not required, so long as the award was signed by a majority of the members, and reasons for omission of the signature of the third arbitrator were recorded in the award. The opinion of the minority was only a view, and could not be enforced as an award. It could not be considered to be the arbitral award for the purpose of computing limitation under Section 34(3) of the Act. Reliance was placed on the judgments of the Delhi and Bombay High Court in Bharat Sanchar Nigam Ltd. v. Acome and Ors., AIR 2009 Delhi 102, Axion Navigation v. Indian Oil Corporation Ltd., (2012) 114 (1) Bom LR 392. and Oriental insurance Co. v. Air India Ltd., (2019) SCC Online Del 11634. wherein it was held that the limitation period under Section 34(3) of the Act shall commence from the date when the award is passed. ;