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2000 DIGILAW 1462 (PNJ)

Ex. Engineer H. S. A. M. Board v. Dharam Pal

2000-11-28

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This is a civil revision and has been directed against the order dated 1.3.1999, passed by the Court of Civil Judge (Sr. Divn.), Kaithal, who dismissed the objections of the petitioner and proceeded for the implementation of the award dated 27.2.1998. 2. The facts in this case are not much in dispute. A dispute arose between the respondent and the petitioner and the matter was referred to the Arbitrator, who gave the award on 27.2.1998. Respondent filed an application under Section 33(1)(a) of the Arbitration and Conciliation Act, 1996, and made a prayer that the award may be rectified as there are some clerical or typographical mistakes. It appears that the Arbitrator did not dispose of that application within 30 days from the receipt of the said application. The respondent filed an execution before the executing Court on 6.1.1999 for the implementation of the award. The objections were filed by the petitioner on 19.2.1999. In pursuance of the execution filed by the respondent, the executing Court passed the order dated 5.2.1999 attaching the property of the petitioner. Thereafter, the objections were filed by the petitioner on the plea that the execution is premature because the application of the Contractor under Section 33(1)(a) is still pending before the Arbitrator. The award has not attained the finality and, in these circumstances, the order dated 5.2.1999 should be recalled. Notice of the application was given to the respondent. According to him, no application is pending before the Arbitrator under Section 33(1)(a) and, therefore, the objections are frivolous. The executing Court vide the impugned order dated 1.3.1999 and for the reasons given in paras 4 and 5 of the order, dismissed the objections and directed the petitioner for the implementation of the award dated 27.2.1998. Paras 4 and 5 of the order of the executing Court read as under :- "4. First of all let the admitted facts be taken note of. After a dispute arose between the decree-holder and judgment-debtor, the matter was referred to the arbitrator Sh. Anand Parkash, Superintending Engineer, H.S.A.M. Board Panchkula and vide order/award dated 27.2.1998, handed down by the Arbitrator, award was passed in favour of the decree-holder and by virtue of present execution petition, decree holder has sought to get the said award dated 27.2.1998 implemented. 5. Anand Parkash, Superintending Engineer, H.S.A.M. Board Panchkula and vide order/award dated 27.2.1998, handed down by the Arbitrator, award was passed in favour of the decree-holder and by virtue of present execution petition, decree holder has sought to get the said award dated 27.2.1998 implemented. 5. Though D.H. had admittedly applied to the arbitrator on 23.3.1998 for reconciliation of the award, yet during the course of arguments, learned counsel for the decree-holder has stated that the said application has been disposed of and now no reconciliation proceedings are pending before the aforesaid Arbitrator. Since now no proceedings are pending and award 27.2.1998 has become final between the parties, so DH has every right to get the same implemented by way of presentation of present execution petition. Thus objection petition containing no merit is ordered to be dismissed." Not satisfied with the order, the present revision. 3. I have heard the counsel for the parties and with their assistance have gone through the record of this case. 4. Counsel for the petitioner referred to various provisions of the new Arbitration Act and submitted that since the application filed by the Contractor before the Arbitrator on 23.3.1998 had not been disposed of and till that application is not disposed of, the award does not attain the force of decree. He submitted that the award becomes the decree after the expiry of 90 days from the date of the dismissal of the application, if any, moved under Section 33(1)(a). 5. On the contrary, counsel for the respondent submitted that in this case the application of course was made but that stood disposed of with the passage of time. He submitted that when the application, is moved, under Section 33(1), it is obligatory upon the Arbitrator to dispose of that application within 30 days from the receipt of the request and if that application is not disposed of, it will be deemed that this application lost its significance and importance and, therefore, for all intents and purposes, the application moved by the Contractor on 23.3.1998 lost its significance after the expiry of 30 days on 23.4.1998 and since, the award had attained finality after three months of 23.4.1998, therefore, the award is executable. 6. After considering the rival contentions of the parties, I am of the opinion that the application under Section 33(1)(a) stood disposed of on the expiry of limitation. 6. After considering the rival contentions of the parties, I am of the opinion that the application under Section 33(1)(a) stood disposed of on the expiry of limitation. A reading of Section 33(2) shows that if the arbitral tribunal considers the request made under sub-section (1) to be justified, it shall make the correction or given the interpretation within thirty days from the receipt of the request and the interpretation shall form part of the arbitral award. The language of sub-section (2) casts an obligation upon the arbitrator to dispose of the application under Section 33(1)(a) within 30 days of limitation and there is no provision under the Act for the extension of this time. In these circumstances, the application dated 23.3.1998 stood disposed of on 23.4.1998 even if no specific order on this application was passed. In other words, the award got the force of law for the purpose of execution on 23.4.1998. It became executable after 90 days starting from 23.4.1998, i.e. with effect from 23.7.1998. The execution in this case was filed on 6.1.1999, therefore, it was legally maintainable. 7. Counsel for the petitioner drew my attention to Section 34(3), which lays down that an application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal. 8. There is a proviso to sub-section (3), which lays down that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. 9. In the present case, I feel that there is a sufficient cause made out by the petitioner which justifies that the time should be extended so that the petitioner may file the objections to the award. The petitioner, all the time was bewildered under a bona fide legal belief with regard to the interpretation of Section 33(1)(a) and 33(2). 10. In this view of the matter, while dismissing this revision, I give two months time to the petitioner to file the objections to the award dated 27.2.1998. Dasti. Revision dismissed.