D M JAWAHAR MERCAN Vs. ENGINEER INDIA LTD

JUDGEMENT

(1.) IN this proceeding under Section 34 of the Arbitration and Conciliation act, 1996 (hereinafter referred to as the 'act'), the petitioner challenges the validity of the award of a sole arbitrator, made on 18. 01. 2005. The respondent, at the threshold objects to maintainability of the proceedings on the ground that the petition under section 34 of the Act, was filed beyond time prescribed by law.

(2.) TO better appreciate the controversy the following essential facts are narrated. The award was announced on 18th January, 2005. The arbitrator at that stage communicated copies of the award to the parties. He however, recorded that the original award was not being communicated since it had to bear the prescribed stamp duty. The claimant (i. e. the petitioner here) was directed to ascertain the required amount and send the stamp papers to enable the arbitrator to have the award imprinted on it. On 12. 02. 2005, the petitioner moved the arbitrator for clarification, correction and interpretation of the award under Section 33 (1) of the Act. Among several contentions, it was urged that the arbitrator, in his award committed an error in over looking that the claim, as made originally, was for US Dollars 500,000 and that in the award he erroneously assumed the claim to be MR 211,250. The arbitrator by his order dated 20th February, 2005 rejected this application. It is not in dispute that the award was eventually stamped and sent on 13. 03. 2005. The petitioner claims that the date on which he received the award was 13. 04. 2005. The present petition under Section 34 (3) of the act, was filed on 04. 07. 2005.

(3.) MR. Ashok Mathur, learned counsel for the respondent contends that the time for filing objections to the award under Section 34 (3) is fixed and judgments of the Supreme Court have now established conclusively that objections have to be filed within the time prescribed, failing which resources to the Limitation Act is excluded. He relied upon text of Section 34 (3) of the Act and contended that enforceability of the award which is linked with the period within which the petition under Section 34 (3) of the Act, has to be preferred, cannot be confused with the executability of an award. He relied upon the judgment reported as Anusuya Devi and another v. M. Nanik Reddy and Others, (2003)8 SCC 565, where it was held that the question as to whether the award is required to be stamped or registered is relevant only when the parties would file the award for its enforcement under Section 36 of the Act. On the strength of this authority, it was contended that the parties can object to admissibility of such a decree arising out of a award on account of non-registration and non-stamping at that stage. However, it was, contended that the sequitor is that the petition under Section 34 of the Act has to be preferred within the period prescribed under Section 34 (3) of the Act i. e. ninety days from date of receipt of the arbitral award, which in this case was 18. 01. 2005.