M/S S.S TOTAL CONSTRUCTION INDIA PVT LTD v. ALL INDIA INSTITUTE OF MEDICAL SCIENCES

1. Arbitral proceedings between the petitioner and respondent culminated in the passing, by a learned Sole Arbitrator, of an Award dated 30th November 2019. The Award was in favour of the petitioner. The respondent has challenged the award under Section 34 of the Arbitration and Conciliation Act, 1996 (“the 1996 Act”). That challenge is presently pending.

2. In the award, the name of the petitioner, as the claimant, is reflected as “M/s. S.S. Construction India Pvt Ltd, New Delhi”, whereas the actual name of the petitioner is “M/s. S.S. Total Construction India Pvt Ltd, New Delhi”.

3. After the award had been rendered, the petitioner moved an application before the learned arbitrator, pointing out that, in the name of the petitioner, as reflected in the title of the Award, the word “Total” was missing. Accordingly, correction of the name of the petitioner, in the award, was sought.

4. Mr. Satya Ranjan Swain, learned Counsel for the respondent does not dispute the fact that name of the petitioner is actually “M/s. S.S. Total Construction India Pvt Ltd”.

5. Nonetheless, he vehemently opposes this petition. He raises two objections. The first is that the petitioner ought, appropriately, to make the aforesaid prayer before the Court which is in seisin of the Section 34 challenge to the award. The second argument is that the present petition is barred by time.

6. With respect to the second objection, Mr. Swain submits that the petitioner had sought to oppose the respondent’s Section 34 application on the ground of limitation. Having thus taken exception to the respondent’s petition on the ground of limitation, he submits that the petitioner cannot approach this Court at such a belated stage.

7. Both the objections are, ex facie, completely frivolous.

8. The learned Arbitrator has, in the impugned order dated 29th July 2022, rejected the petitioner’s application only on the ground that, after the expiry of 30 days envisaged under Section 33 of the 1996 Act, he had been rendered functus officio. The learned Arbitrator has, in the impugned order, gone to the extent, in fact, of observing that the petitioner should move this Court to get the error corrected, or obtain permission, from this Court, for the learned Arbitrator to do so.

9. To the extent he holds that, with the expiry of 30 days from the date of rendition of the award he has been rendered functus officio, the decision of the learned arbitrator may not be incorrect, the said period of limitation having been statutorily engrafted into Section 33 itself. At the same time, it would be against every imaginable canon of natural justice and fair play to deny the petitioner an opportunity to have the name of the petitioner, as reflected in the award passed by the learned Arbitrator, corrected, especially as Mr. Swain does not dispute the fact that the name of the petitioner is actually “S.S. Total Construction India Pvt Ltd”.

10. The matter is, therefore, merely one of a clerical/typographical error in the award of the learned Arbitrator. It is unfortunate that this Court has had to expend time and effort in such a case.

11. Given the nature of the dispute, neither would it be fair to relegate the petitioner to approaching the Section 34 Court, before whom the challenge of the respondent to the arbitral award is pending, nor can the present petition be dismissed on the ground of limitation, as there is no period of limitation prescribed in law, for a party to approach the Court under Article 227 of the Constitution of India.

12. In any event, the error that the petitioner seeks to correct is an error committed by the learned arbitrator. That the learned arbitrator has indeed committed such an error is conceded by learned Counsel for the respondent.

13. In these circumstances, the error in the impugned award dated 30th November 2019 cannot be allowed to remain on record. Disallowing the petitioner’s petition would make a mockery of the law.

14. Accordingly, the name of the petitioner in the award dated 30th November 2019, passed by the learned arbitrator, shall stand corrected to “M/s. S.S. Total Construction India Pvt Ltd”.

15. The present petition is allowed, in limine, to the aforesaid extent.