Ministry of Youth Affairs and Sports, Dept. of Ports, Govt. of India v. Ernst and Young Pvt. Ltd (now known as Ernst and Young LLP) and Anr

ARBITRATION BETWEEN: UNION OF INDIA (THROUGH SECRETARY, DEPARTMENT OF SPORTS, MINISTRY OF YOUTH AFFAIRS & SPORTS, GOVERNMENT OF INDIA) AND M/S ERNST & YOUNG PVT. LTD. O R D E R (Addendum to the Award)

1. On March 07, 2018 an order was passed on the Application of the Claimant u/s 33 of the Arbitration and Conciliation Act 1996. In para 2 of the Order dated March 07, 2018, it was recorded as under: “On going through the award we find that there are typographical errors in the last line of para 96 and second line of para 112.”

2. In regard to correction of para no. 96 of the award dated December 11, 2017, we recorded in the order dated March 07, 2018 as follows: “Accordingly, the last line of para 96 is corrected and reads as under: „ As a sequitur we hold that Respondent no. 2 is not entitled to the payment of 9th and 10th instalments.”

3. In regard to correction of para 112 of the award it was recorded in the order dated March 07, 2018 as follows: “In the circumstance, therefore the OC CWG was justified in withholding and adjusting the last instalment of Respondent not against advance tax payable by Respondent no. 2‟ As is evident, again a typographical error has crept in the aforesaid recording in as much as in the second line after the word „Respondent‟, the corrected word ought to have been „no. 1‟ instead of the word „not‟. Therefore, necessary and intended correction was not made in the aforesaid para 112.

4. In the circumstances, since the desired correction was not made we consider it necessary and appropriate to extend the period u/s 33 (6) of the Arbitration and Conciliation Act, 1996, to make the correction till May 17,

2018. Accordingly, para 112 of the award is corrected to read as under: “In the circumstance, therefore the OC CWG was justified in withholding and adjusting the last instalment of Respondent no. 1 against advance tax payable by Respondent no. 2.”

5. This order shall be read alongwith the order dated March 07, 2018. The said corrections shall always be deemed to have been incorporated in the award.”

13. Subsequently, petitioner vide email dated 21st May, 2018 requested the Arbitral Tribunal to provide copy of order dated 07th March, 2018 claiming that it was unaware of the order dated 07th March, 2018 till the communication of Addendum to Award dated 17th May, 2018. In response thereof, the Arbitral Tribunal vide email dated 22nd May, 2018, supplied a copy of order dated 07th March, 2018 to the petitioner. In the said email, the Arbitral Tribunal noted that its office had already sent a signed copy of the said order to both the parties by registered post. The email dated 22nd May, 2018 sent by the Arbitral Tribunal to the petitioner is reproduced as hereunder:

14. Thereafter, petitioner sent an email dated 04th June, 2018 to the Arbitral Tribunal thereby submitting that the Arbitral Tribunal had not dealt with its request of reflecting in concluding para of the Award, the relief regarding its claim of Rs.2.82 Crores along with interest on the ground that the Award contained clear findings in its favour. The petitioner also requested the Arbitral Tribunal for fixing a date for making oral submissions regarding its prayer. The respondent No.1 submitted its objections to the aforesaid request of petitioner by its email dated 12th June, 2018, on the ground that as the request filed by petitioner had already been disposed of by the Arbitral Tribunal, any request by petitioner to seek oral hearing was not maintainable.

15. By its email dated 13th June, 2018, the Arbitral Tribunal informed the petitioner that no further order could be passed in the request of the petitioner under Section 33 of the Arbitration Act, as the Arbitral Tribunal had become functus officio.

16. Hence, being aggrieved by the Award dated 11th December, 2017 passed by the Arbitral Tribunal on the ground that no relief was granted in favour of the petitioner in respect of its claim regarding Rs.2.82 Crores despite clear findings in its favour, the present petition has been filed. Contentions of Petitioner

17. On behalf of the petitioner, it is contended that the present petition has been filed within limitation. It is submitted that the learned Arbitral Tribunal on its own accord vide its Addendum dated 17th May, 2018 had apparently extended the limitation period till 17th May, 2018. The present petition has originally been filed on 14th August, 2018, which period is within the limitation period. Though there were some defects of curable nature at the time of filing, the same were removed at the earliest and the petition was re-filed on 24th August, 2018, 31st August, 2018 and finally on 01st September, 2018.

18. It is contended that in case the filing done by petitioner on 14th August, 2018 is viewed as not properly filed and that even if the present petition is treated as properly filed on 31st August, 2018 for the purposes of limitation, after removal of defects, still, the petition is within limitation on the ground that the signed copy of Addendum to Award dated 17th May, 2018 was provided to the petitioner only on 01st June, 2018.

19. It is further submitted that the orders dated 07th March, 2018, 17th May, 2018 and 13th June, 2018 passed by the Arbitral Tribunal upon the application of the petitioner under Section 33 of the Arbitration Act, have to be read in conjunction to each other. Considering the fact that the petitioner‟s request with regard to its claim of Rs.2.82 Crores was not even dealt with by the Tribunal, the limitation period has to be counted from 13th June, 2018, on which date the Tribunal expressed itself as „functus officio‟.

20. It is contended that the Arbitral Tribunal has nowhere stated that it has dealt with the request of the petitioner pertaining to Rs.2.82 Crores. Thus, in the eyes of law, the said request remained alive even on the passing of said orders dated 07th March, 2018 and 17th May,

2018. It is only when the Tribunal expressed itself as functus officio that the limitation period can be said to have started running.

21. By referring to Section 34(3) of the Arbitration Act, it is submitted that the legislature has used the word „request‟ and not „application‟. Therefore, the argument of the respondent that the limitation period has to be counted from the date of disposal of the said „application‟, is misconceived.

22. It is further submitted on behalf of the petitioner that the order dated 07th March, 2018 passed by the Arbitral Tribunal deciding the application of the petitioner under Section 33 of the Arbitration Act, came to the knowledge of the petitioner only when the Addendum to May, 2018 was served upon it. Thus, it was upon the request of the petitioner that order dated 07th March, 2018 was supplied to it on 22nd May, 2018. It was only then the petitioner noticed that its request regarding claim of Rs.2.82 Crore had not been dealt by the Tribunal and also that no opportunity had been afforded to the petitioner. Therefore, the petitioner requested the Tribunal vide email dated 04th June, 2018 to grant an opportunity to it to make oral submission. However, the Tribunal vide its email dated 13th June, 2018 expressed that it had become functus officio and that no orders can be passed thereon.

23. It is further the case on behalf of the petitioner that till date the petitioner has not been supplied the signed copy of order dated 07th March, 2018. Whereas, the signed copy of the Addendum to Award dated 17th May, 2018 was given to petitioner only on 01st It is further contended that in terms of Section 33 of the Arbitration Act, the limitation period of three months would start from the „date of disposal of the request‟. Thus, when the Arbitral Tribunal in its communication dated 13th June, 2018 expressed its helplessness in passing any order qua the said request on becoming functus officio, the limitation period would commence from the said date. Thus, it is contended that the present petition under Section 34 of the Arbitration Act has been filed within the prescribed period of three months. Contentions of Respondents

24. On the other hand, on behalf of the respondents it is contended that the present petition is barred by limitation as the same has not been filed within the time prescribed by Section 34(3) of the Arbitration Act.

25. It is submitted that since petitioner had filed a request under Section 33 of the Arbitration Act, the period of limitation for filing the petition under Section 34 must be construed from the date of disposal of the said request by the Arbitral Tribunal, i.e., 07th March, 2018. As per the case history available on the website of this Court, the present petition was filed on 01st September, 2018. Thus, it is contended that the period of three months from the date of disposal of the request by the petitioner under Section 33 of the Arbitration Act, i.e., 07th March, 2018, expired on 07th June, 2018. Therefore, the present petition, filed on 01st September, 2018 is barred by limitation.

26. It is further contended that it is an admitted position that the petitioner had received the order dated 07th March, 2018 vide Arbitral Tribunal‟s email dated 22nd May, 2018. As the period of three months from 22nd May, 2018 also expired on 22nd August, 2018, the present petition would still be barred by limitation.

27. It is further contended on behalf of respondents that as per proviso to Section 34(3) of the Arbitration Act, petition may be entertained beyond the period of three months, within a further period of thirty days if sufficiency of cause is shown. It is submitted that in the present case there is no application for condonation of delay, thus, petitioner is not entitled to seek the benefit of additional period of thirty days.

28. On behalf of respondents, the following judgments have been relied upon:

I. Vidhur Bhardwaj Vs. Horizon Crest India Real

II. P. Radha Bai and Others Vs. P. Ashok Kumar and

III. Chintels India Limited Vs. Bhayana Builders Private

IV. State of Arunachal Pradesh Vs. Damani Construction

V. IRCON International Ltd. Vs. C.R. Sons Builders and

VI. Dyna Technologies Private Limited Vs. Crompton

VII. South East Asia Marine Engineering and

Constructions Limited (SEAMEC Ltd.) vs. Oil India Limited, (2020) 5 SCC 164 Analysis and Findings

29. I have heard ld. Counsels for the parties and have perused the record.

30. At the outset, it is to be noted that the period of limitation for challenging an Arbitral Award is prescribed in Section 34(3) of the Arbitration Act. As per the said Section, an application for setting aside an Arbitral Award shall be made before expiry of three months from the date on which the said party had received the Arbitral Award. If any request/application had been made by the said party under Section 33 of the Arbitration Act for correction and interpretation of the Award/Additional Award, then such application for setting aside the Award has to be made before the expiry of three months from the date on which the said application/request under Section 33 of the Arbitration Act, has been disposed of.

31. In the present case, the Arbitral Award was passed on 11th December, 2017. Thereafter, the petitioner filed a request under Section 33(1) of the Arbitration Act on 10th January, 2018 requesting the Arbitral Tribunal to reflect in its concluding para, the relief regarding its claim for a sum of Rs.2.82 Crores, along with interest and also seeking correction of clerical error in paras 96 and 112 of the Award.

32. Subsequently, the Arbitral Tribunal rectified the typographical errors vide its order dated 07th March, 2018 and disposed of the request of petitioner under Section 33 (1) of the Arbitration Act in terms of the said order.

33. Thereafter, the Arbitral Tribunal issued Addendum to the Arbitral Award by its order dated 17th May, 2018, vide which the Arbitral Tribunal corrected another typographical error which had crept in para 112 of the Award. Thus, the learned Arbitral Tribunal on its own accord vide its Addendum dated 17th May, 2018 extended the limitation period till 17th May, 2018 in terms of Section 33 (6) of the

34. As regards the authority of the Arbitral Tribunal for extension of time by it on its own accord under Section 33(6) of the Arbitration Act, this Court in the case of National Highways Authority of India Vs. ITD Cementation India Ltd.1, has held as follows:

35. In view of the aforesaid, the period of limitation for filing petition under Section 34 of the Arbitration Act stood extended till 17th May, 2018. Section 31(5) of the Arbitration Act provides that after the Arbitral Award is made, a signed copy shall be delivered to each party. However, Section 33 of the Arbitration Act makes provision for correction and interpretation of Award and Additional Award. Thus, petitioner herein in term of Section 33(1) of the Arbitration Act had filed a request on 10th January, 2018 before the Arbitral Tribunal, which was disposed of vide order dated 07th March, 2018, as noted above. Further, the Arbitral Tribunal by its order dated 17th May, 2018 had extended the period of time within which it shall make a correction, as the Tribunal carried out certain correction in the Award on its own by the said order. Thus, any order passed by Arbitral Tribunal under Section 33 of the Arbitration Act shall form part of the Award as passed by the Arbitral Tribunal.

36. It may be noted herein that Supreme Court in the case of USS Alliance Vs. State of Uttar Pradesh and ors.2, has held that starting point for the limitation in case of suo moto correction of the Award, would be the date on which the correction was made and the corrected Award is received by the party. Thus, it has been held as follows:

37. As regards the contention raised on behalf of petitioner that its request under Section 33 of the Arbitration Act was disposed of only on 13th June, 2018, when the Arbitral Tribunal informed petitioner that it had become functus officio and that the period of limitation ought to be construed from the said date, the same cannot be accepted. The said contention as raised on behalf of petitioner has no basis. By way of the said communication dated 13th June, 2018, the Arbitral Tribunal merely informed petitioner that it had already become functus officio. The said email dated 13th June, 2018 has no bearing on the validity of the order dated 07th March, 2018 of the Arbitral Tribunal, when the application of petitioner under Section 33 of the Arbitration Act was disposed of. The email dated 13th June, 2018 can in no manner be construed as deciding the application of the petitioner under Section 33 of the Arbitration Act.

38. When the application under Section 33 of the Arbitration Act had already been disposed of by the Arbitral Tribunal, any subsequent reply by the Arbitral Tribunal pursuant to mail by petitioner in that regard, cannot be taken to mean as any order by the Arbitral Tribunal under Section 33 of the Arbitration Act. Thus, in the case of State of Arunachal Pradesh Vs. Damani Construction Company[3] wherein a party had moved an application before the learned Arbitrator, Supreme Court held that the said application being not within the purview of Section 33 of the Arbitration Act, any communication by the learned Arbitrator would not be construed as a fresh cause of action taking the same as the starting point of limitation. Accordingly, Supreme Court held as follows:

9. Therefore, the reply given by the arbitrator does not give any fresh cause of action to the appellant so as to move an application under Section 34(3) of the Act. In fact, when the award dated 12-10-2003 was passed the only option with the appellant was either to have moved an application under Section 34 within three months as required under sub-section (3) of Section 34 or within the extended period of another 30 days. But instead of that a totally misconceived application was filed and there too the prayer was for review and with regard to mode of payment. The question of review was totally misconceived as there is no such provision in the Act for review of the award by the arbitrator and the clarification sought for as to the mode of payment is not contemplated under Section 33 of the Act. Therefore, in this background, the application was totally misconceived and the reply sent by the arbitrator does not entitle the appellant a fresh cause of action so as to file an application under Section 34(3) of the Act, taking it as the starting point of limitation from the date of reply given by the arbitrator i.e. 10-4-2004.

10. Thus, in this background, the view taken by the learned Single Judge appears to be justified and there is no ground to interfere in this appeal. Consequently, there is no merit in both the appeals and the same are dismissed with no order as to costs.

39. Considering the aforesaid facts, the crucial dates in the present case for the purposes of calculating the limitation period for filing petition under Section 34 of the Arbitration Act would be when the petitioner received signed copy of order dated 07th March, 2018, by which the request of the petitioner under Section 33 of the Arbitration Act, was disposed of by the Arbitral Tribunal; and the date on which the petitioner received signed copy of order dated 17th May, 2018, by which the Addendum to the Award was issued by the Arbitral Tribunal.

40. Period of limitation for filing an application under Section 34 of the Arbitration Act would commence only after valid delivery of the Award under Section 31(5) of the Arbitration Act. It may be noted that making and delivery of the Award are two different stages of an arbitration proceeding. Therefore, in order to adjudicate the issue whether or not the present petition is barred by limitation, the dates on which the aforesaid orders dated 07th March, 2018 and 17th May, 2018 were received by the petitioner in terms of Section 31(5) of the Arbitration Act, would be pertinent. In this regard, Supreme Court in the case of Dakshin Haryana Bijli Vitran Nigam Limited Vs. Navigant Technologies Pvt. Ltd.4, held as follows:

29. The judgment in Tecco Trichy Engineers [Union of India v. Tecco Trichy Engineers & Contractors, (2005) 4 SCC 239] was followed in State of Maharashtra v. ARK Builders (P) Ltd. [State of Maharashtra v. ARK Builders (P) Ltd., (2011) 4 SCC 616: (2011) 2 SCC (Civ) 413], wherein this Court held that Section 31(1) obliges the members of the Arbitral Tribunal to make the award in writing and sign it. The legal requirement under sub-section (5) of Section 31 is the delivery of a copy of the award signed by the members of the Arbitral Tribunal/arbitrator, and not any copy of the award. On a harmonious construction of Section 31(5) read with Section 34(3), the period of limitation prescribed for filing objections would commence only from the date when the signed copy of the award is delivered to the party making the application for setting aside the award. If the law prescribes that a copy of the award is to be communicated, delivered, despatched, forwarded, rendered, or sent to the parties concerned in a particular way, and since the law sets a period of limitation for challenging the award in question by the aggrieved party, then the period of limitation can only commence from the date on which the award was received by the party concerned in the manner prescribed by law. The judgment in Tecco Trichy [Union of India v. Tecco Trichy Engineers & Contractors, (2005) 4 SCC 239] has been recently followed in Anilkumar Jinabhai Patel v. Pravinchandra Jinabhai Patel [Anilkumar Jinabhai Patel v. Pravinchandra Jinabhai Patel, (2018) 15 SCC 178: (2019) 1 SCC (Civ) 141].

41. In the present case, it has been contended on behalf of petitioner that it received copy of order dated 07th March, 2018 disposing of its request under Section 33(1) of the Arbitration Act only by way of email dated 22nd May, 2018. The petitioner itself has admitted to the said position in para (xliv) of the petition, wherein it has been stated as follows: “(xliv) That in reference to the above communication of the Petitioner, the Tribunal supplied the copy of order dated 07.03.2018 to the Petitioner on 22.05.2018.”

42. In the email dated 22nd May, 2018, the Arbitral Tribunal has stated that the copy of order dated 07th March, 2018 was sent to the parties by registered post. This Court has perused the Arbitral record. However, from perusal of the Arbitral record it is not possible to conclude that copy of order dated 07th March, 2018 was received by the petitioner by registered post. In view thereof, this Court accepts the plea of petitioner that it received copy of order dated 07th March, 2018 from the Arbitral Tribunal on 22nd May, 2018, upon request in this regard to the Arbitral Tribunal.

43. As regards the Addendum to Award dated 17th May, 2018 passed by Arbitral Tribunal, the documents on record clearly show that the said Addendum to Award was received by petitioner by email sent on behalf of the Arbitral Tribunal on the same day, i.e., 17th May,

2018. By email dated 17th May, 2018, scanned copy of Addendum to May, 2018 was mailed to the counsel for petitioner, who in turn forwarded the same to the petitioner on its official mail. The said email dated 17th May, 2018 has been filed on behalf of the petitioner itself, which clearly shows receipt of the scanned copy of the Addendum to Award dated 17th May, 2018 by petitioner as well as its lawyer.

44. The contention on behalf of the petitioner that signed copy of the Addendum to Award dated 17th May, 2018 was provided to the petitioner only on 01st June, 2018, is found to be without any merit. Email dated 17th May, 2018 sent on behalf of the Arbitral Tribunal to the counsel for the petitioner clearly shows that the Addendum to the May, 2018 was attached with the said email dated 17th May, 2018. Additionally, later signed copy of the Addendum to the Award was also collected physically on behalf of petitioner on 01st June, 2018 from the office of Arbitral Tribunal. Email dated 14th August, 2018 sent by the Arbitral Tribunal to petitioner is reproduced as under: “Arbitration between Ministry of Youth Affairs & Sports and E&Y/EKS MANJU KARGETI Tue 8/14/2018 4:15 PM To: Neeraj Choudhary neeraj.lawyer@gmail.com: Dear Sir,

1. A Scanned copy of the award dated 11/12/2017 was transmitted to you on 11/12/2017 itself by email, while signed copy of the award was sent to the Department of Sports, Ministry of Youth Affairs & Sports, Govt. of India on 13/12/2017 by Registered AD Post. A copy of the postal receipt is attached herewith. Please note that a signed copy of the award was also collected by Mr. Jyoti Kumar Mangalam from this office on 21.01.2018.

2. I may also point out that a scanned copy of addendum to the award dated 17.05.2018 was sent to you on the same day by email. In this regard please refer to my email dated 17.05.2018, addressed to you and others. A signed copy of addendum to the award was also collected by Mr. Jyoti Kumar Mangalam on 01.06.2018 from this office. Regards Manju P.A. to Mr. Justice Anil Dev Singh ”

45. It may be noted that along with the email dated 17th May, 2018 sent on behalf of the Arbitral Tribunal to the counsel for petitioner and other parties, scanned copy of the Addendum to the Award dated 17th May, 2018 was also mailed, which was a duly signed copy. Once a duly scanned signed copy of the Addendum to Award dated 17th May, 2018, had been received by petitioner, the period of limitation for the purposes of filing petition under Section 34 of the Arbitration Act for challenging the Award commenced. Subsequent act on behalf of petitioner of physically collecting signed copy of the said Addendum on 01st June, 2018 will not in any manner extend the limitation period to 01st

46. Even receipt of photocopy of a signed Award from an Arbitral Tribunal has been held to be receipt of Arbitral Award in terms of Section 31(5) of the Arbitration Act. It has categorically been held that there is no requirement in Section 34 of the Arbitration Act for filing ink signed copy of the Award. Thus, in the case of Continental Telepower Industries Ltd. Vs. Union of India and Ors.5, it has been held as follows:

15. I have recently in Aktiebolaget Volvo v. R. Venkata Chalam, 160 (2009) DLT 100 on an interpretation of various provisions of CPC held that Order 7 Rule 14 and Order 8 Rule 1A requiring filing of documents do not mean the original document and it is open to the parties to, in compliance thereof, file copies/photocopies of the documents. The requirement to “produce” as distinct from “file” the original document for inspection is only at the stage of admission/denial or tendering documents into evidence. In that context the definition of a document in Section 3 of Indian Evidence Act was also noted as including words printed, lithographed or photographed.

16. The Apex Court has been extending the meaning of primary as well as secondary evidence. It has been held in Prithi Chand v. State of Himachal Pradesh, (1989) 1 SCC 432: AIR 1989 SC 702 that the carbon copy of the medical certificate bearing also the carbon copy of the signatures appended by the doctor on the original is primary evidence within the meaning of Section 62 of the Evidence Act and the judgments of the courts below holding otherwise were set aside. Similarly, in Y.N. Rao v. Y.V. Lakshmi, 1991 Raj. LR 367 (SC) a photocopy of document has been held to be a secondary evidence within the meaning of Section 63 of the Indian Evidence Act. The judgment of the High Court refusing to see a foreign judgment and decree for the reason of copy provided being a photocopy was set aside.

17. In the absence of there being any words in the Act to indicate the requirement of furnishing award in the form of primary evidence to the parties, the law if laid down so to require an „ink signed‟ award would, in my opinion, lead to delays and also give a handle to the unscrupulous litigants to indefinitely delay the execution of the award by contending that the signed copies of the award had not been delivered.

18. Law has to evolve with changing technologies. In today's time it would be unfair to require the arbitrator to sign each and every copy of the award, especially when photocopy has become common place and is the accepted mode. xxx xxx xxx

21. I am also not inclined to believe the contention that the letter dated 31st December, 2001 of the arbitrator, copy whereof is on the arbitral record and vide which the arbitrator complied with the request of the petitioner in its letter dated 24th December, 2001, had not been received by the petitioner. The said letter appears to have been issued in the normal course and cannot be disputed. The petitioner, also in its letter dated 24th December, 2001, only indicated an intention to execute the award and did not indicate any intention to file objections to the award. The petitioner appears to have decided to file objections after dismissal of the objections of the respondents-Union of India/BSNL to the award. As noticed above, there is no requirement in Section 34 of filing ink signed copy of the award therewith or of award being duly stamped before such petition can be preferred. In view of the pre-emptive language of proviso to Section 34(3), the petition under Section 34(1) ought to have been filed within three months of receipt of photocopy of the award. If the limitation for filing the petition under Section 34 of the Act is to be counted from say after a week of 26th November, 2001, then the petition is definitely barred by time and no application for condonation of delay is entertainable.

47. When scanned signed copy of order dated 07th March, 2018 was received by petitioner by email dated 22nd May, 2018 and scanned signed copy of Addendum to Award dated 17th May, 2018 was received by the petitioner on 17th May, 2018 itself, the same was valid delivery in terms of Section 31(5) of the Arbitration Act. The law has to keep its pace in tandem with the developing technology. When service by email is an accepted mode of service, then sending scanned signed copy of the award/order of the Arbitral Tribunal to the parties would be a valid delivery as envisaged under Section 31(5) of the

48. A Division Bench of this Court in the case of Delhi Urban Shelter Improvement Board Vs. Lakhvinder Singh[6] has held that the expression „signed copy‟ in Section 31(5) of the Arbitration Act indicates the legislative intent that a copy authenticated by the Arbitrator is served on each party. It was held that authenticity of correspondence in the technologically advanced times of today does not necessarily pertain to only signatures in writing, and it would be adverse to read the expression „signed copy‟ of the award/order in a restrictive manner so as to connote a copy bearing the original signatures of the Arbitrator in his hand writing. Thus, it was held as follows:

17. and also the various definitions of “sign” and “signature” as provided in Black's Law Dictionary, Eighth Edition, to demonstrate the utility of such a sign or a signature, which is primarily for authentication purposes.

18. National Agricultural Co-operative Marketing Federation of Indian Ltd. v. R. Piyarelall Import and Export Ltd. AIR 2016 Cal 160, a Division Bench of the Calcutta High Court upheld the decision of the Single Judge rejecting the petition under Section 34 of the Act for setting aside an award on the ground of limitation, was also cited by the Single Judge, where the arbitral award was duly signed by all the three arbitrators and a certified copy of the award was forwarded to each of the parties by the Registrar of the Indian Council of Arbitration but the photocopy of the signed award was not signed in original by the arbitrators. Here, the Court held that: “24 it was not the intention of legislature that all the copies of the award,- dispatched to the respective parties would have to be separately signed by the Learned arbitrators. A certified photocopy of the original award along with the signatures of the members of the Arbitral Tribunal would suffice.

25. Had It been the legislative intent that all copies of the award required to be furnished to the respective parties to a multiparty arbitration, should actually be signed by members of the arbitral tribunal themselves and/or in other words, each of the copies should contain: the original signatures of the arbitrators. Parliament would perhaps, not have used the expression „signed copy of the award‟ but used the expression „a copy of the award, duly signed by the arbitrators‟, in Section 31(5) of the 1996 Act.”

49. Considering the aforesaid, it is clear that valid delivery of the Addendum to Award dated 17th May, 2018 and order dated 07th March, 2018 took place respectively on 17th May, 2018 and 22nd May, 2018 in terms of Section 31(5) of the Arbitration Act. Thus, the period of limitation for filing of petition under Section 34 of the Arbitration Act in the present case commenced on 22nd May, 2018. Thus, the limitation period for filing the present petition was till 22nd August,

2018.

50. In the present case, the petition was firstly filed on 14th August, 2018, which was returned under objections. Perusal of the Log Information showing the information of the defects raised by the Registry shows that at the time of initial filing on 14th August, 2018, the petition was not accompanied by Arbitral Award and total 46 pages were filed. Thus, the petition was returned under objection by the Registry on 18th August, 2018. Thereafter, the petition was re-filed by the petitioner on 24th August, 2018 when 1785 pages were filed. Defects were again raised and petition was returned under objection on 25th August, 2018. The petition was thereafter re-filed on 31st August, 2018. However, the same was again returned under objections on 01st September, 2018. The defects were removed by the petitioner on the same date and re-filing was thereafter done on the same day i.e. 01st September, 2018. Thereafter, the present petition was listed before this Court since all objections were removed by the petitioner.

51. This Court had requisitioned the files showing the log information of filing of the present writ petition that contained files showing the actual filing of the petition and documents on different dates. The file provided by the Registry shows that the filing done by petitioner on 14th August, 2018 contained only 46 pages. The petition filed on 14th August, 2018 was not accompanied by the Arbitral Award or attested copy of the Statement of Truth, though signatures of the parties and the advocate were there. Duly signed vakalatnama had also been filed on 14th August, 2018. Since the filing on 14th August, 2018 was unaccompanied by Arbitral Award and without attested copy of the Statement of Truth, such filing as done by petitioner on 14th August, 2018 cannot be considered to be a proper filing. The same was non-est filing and cannot be considered by this Court.

52. Perusal of the file as received from the Registry showing the filing done by petitioner on 24th August, 2018 reveals that 1785 pages had been filed by petitioner. The filing on 24th August, 2018 contained duly signed copy of the petition by the party as well as the advocate in question. Further, duly attested Statement of Truth was filed along with the petition. Arbitral Award dated 11th December, 2017 was also duly filed along with the petition on 24th August, 2018. Though objections were raised by the Registry even qua the filing on 24th August, 2018, however, the said objections were only procedural in nature like absence of bookmarking, etc. Once a duly signed petition along with proper Statement of Truth, Arbitral Award, vakalatnama duly signed by the party as well as the advocate was filed, the same was a proper filing. Therefore, any objections raised by the Registry thereafter were only procedural in nature as substantive filing was done by petitioner on 24th August, 2018.

53. In view of the aforesaid, the actual date of filing of the present petition is 24th August, 2018. As noted above, though objections were raised by the Registry even thereafter and petition was returned under objections on 25th August, 2018 and 01st September, 2018, however, the said objections cannot be considered to be fundamental in nature and were only procedural objections. In this regard, Division Bench of this Court in the case of Oil and Natural Gas Corporation Ltd. Vs. Joint Venture of Sai Rama Engineering Enterprises (Sree) & Megha Engineering & Infrastructure Limited (Meil)7, has held as follows:

54. In view of the aforesaid, it is clear that though the period of limitation for filing the present petition was till 22nd August, 2018, the initial filing of 14th August, 2018 cannot be considered as filing, as the same was non-est. The initial filing on 14th August, 2018 contained only 46 pages and was not accompanied by the impugned Arbitral Award. However, upon re-filing on 24th August, 2018, 1785 pages were filed by petitioner, which also included the Arbitral Award. Thus, though objections were raised by Registry subsequently and refiling was done on 31st September, 2018, however, the re-filing as done by petitioner on 24th August, 2018, 31st September, 2018 cannot be considered as nonest filing. It is also pertinent to note here that re-filing of the petition was done by petitioner within time and without any delay.

55. Accordingly, in view of the detailed discussion as aforesaid, there is a delay of two days in filing the present petition, considering the fact that filing done on 24th August, 2018 by petitioner was a proper filing. The delay of two days in filing the present petition is within the extended period of 30 days beyond the statutory period of three months as provided under Section 34 of the Arbitration Act.

56. Proviso to Section 34(3) of the Arbitration Act stipulates that if the Court is satisfied that the applicant was prevented by “sufficient cause” from making the application within the period of three months, it may entertain the application within a further period of 30 days. “Therefore, if a petition is filed beyond the prescribed period of three months, the court has the discretion to condone the delay only to an extent of thirty days, provided sufficient cause is shown.” (See: State of Himachal Pradesh and Another Vs. Himachal Techno Engineers and Another, (2010) 12 SCC 210). Therefore, this Court has to see whether there is “sufficient cause” in the present case for condoning the delay of 2 days in filing the present petition.

57. It is undisputed that no application for condonation of delay has been filed on behalf of petitioner as it was the consistent stand of petitioner that the present petition has been filed within the statutory period of three months as provided under Section 34 of the Arbitration Act. However, fact remains that application for condonation of delay can be filed at any time till the proceedings are pending. (See: USS Alliance Vs. State of Uttar Pradesh and Ors., 2023 SCC OnLine SC 778).

58. Since it is by the present judgment that it has been held that the initial filing of 14th August, 2018 was a non-est filing, this Court deems it appropriate to grant an opportunity to petitioner to file an application for condonation of delay in filing the present petition. Needless to state that upon such an application being filed on behalf of the petitioner, the Court would have to consider whether or not the petitioner has shown “sufficient cause” for condoning delay. The Court will exercise its discretion whether or not the delay should be condoned upon considering the application of the petitioner for condonation of delay.

59. In view thereof, petitioner is granted liberty to file application for condonation of delay within three weeks from the passing of this judgment.

60. List before the Roster Bench on 01st September, 2023.

JUDGE AUGUST 23, 2023 au/ak/c