MANGALAM Vs. SAGAR INTERNATIONAL

JUDGEMENT

(1.) BY this petition, the petitioner has applied under section 34 of the Arbitration & Conciliation Act, 1996, (hereinafter referred to as Act) to set aside Arbitration Award dated 3/12/97 made by the Umpire to whom the Arbitrators of the Mumbai Textile Merchants Mahajan had referred the dispute.

(2.) A preliminary objection is raised to the Court entertaining this petition. Learned Counsel for the Respondents contends that the petition is barred by reason of the proviso of Sub-section 3 of Section 34 of the Act.

(3.) MR .Joshi, learned Counsel for Respondents, contends that the situation is squarely covered by the proviso to Sub-section 3 of Section 34 of the Act. In his submission, section 33 of the Act is not attracted and therefore, the period of limitation prescribed by Sub-section 3 ended on 12/3/97, as far as the petitioner is concerned. Even assuming that the petitioner had good cause which prevented him from filing the petition within the period of limitation, this court can not entertain it after the lapse of 30 days from the said date i.e. on or after 12/4/97. The petition filed on 22/4/97 is, therefore, clearly barred according to Mr.Joshi. He submits that the letters at Exh.H, H-1, & H-3 could hardly be considered as invocation of section 33. Exh.H dated 17/12/97 is the first letter addressed by the petitioner on receipt of the copy of the arbitration award. Apart from declaring that the award was illegal, there was no invocation of section 33 in this letter. In fact, when I queried Mr.Jain for the petitioners, he contended that these 3 letters amounted to invocation of the Arbitral Tribunal's powers within the meaning of section 33(1)(b) of the Act. It is not possible to accept this contention. Section 33(1)(b) would be available to a party, if there is consent of parties, after notice to the other party and that too, for the purpose of requesting the Arbitral Tribunal to give interpretation of a specific point or part of the award. With the help of learned Counsel for both the sides, I have perused the aforesaid three letters and I am unable to agree that anything said in the said letters amounts to action contemplated by Section 33(1)(b) of the Act. Mr.Jain, learned Counsel for petitioners, then contended that Sub-section 4 of Section 30 would apply to the situation. Here again, I am unable to agree. Sub-section 4 would be attracted, only if a claim presented to the Arbitral Tribunal has been omitted from the award and the party aggrieved thereby moves the arbitration Tribunal to make an additional award to cover such missing claim. In the present case, the claim was made by the Respondent and the petitioner merely defended the claim.