2023 Supreme(Del) 4030

IN THE HIGH COURT OF DELHI AT NEW DELHI
Mini Pushkarna, J.
Ministry of Youth Affairs And Sports, Dept. of Ports, Govt. of India – Appellant
Versus
Ernst And Young Pvt. Ltd. – Respondent
O.M.P. (COMM) 377 of 2018
Decided On : 23-08-2023

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 Arbitration and Conciliation Act, 1996.

Headnote:

ARBITRATION - Setting aside of Arbitral Award - Limitation - Computation of limitation period - Delivery of signed copy of the award - Meaning and scope - Whether 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 Arbitration and Conciliation Act, 1996 - Held, yes.

Fact of the Case:

Petitioner filed a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (Arbitration Act) challenging the Arbitral Award dated 11th December, 2017 passed by the Arbitral Tribunal. The petitioner contended that though the Arbitral Tribunal has passed the Award in its favour by upholding the submissions made by it in respect of its claims, however, the Arbitral Tribunal erred in not reflecting in the concluding para of the Award, the relief/amount with regard to one of the claims raised by the petitioner for Rs. 2.82 crores. The petitioner also filed a request under Section 33(1) of the Arbitration Act requesting the Arbitral Tribunal to reflect in its concluding paragraph, the relief regarding its claim for a sum of Rs.2.82 Crores along with interest, claiming that the Award contained clear findings in its favour. Vide the said request, petitioner also sought correction of clerical errors in paras 96 and 112 of the Award. The Arbitral Tribunal vide its email dated 31st January, 2018, called upon the respondents to file their response. Thereafter, respondent No.1 filed its reply to the said application on 12th February, 2018. In the meantime, respondent No.1 impugned the Arbitral Award dated 11th December, 2017 by filing petition under Section 34 of the Arbitration Act before this Court. The respondent No.1 sought setting aside of the Arbitral Award on various grounds as mentioned therein. The said petition filed on behalf of respondent No.1 was ultimately dismissed by this Court vide order dated 20th March, 2018. As per the case of petitioner, since it did not hear anything from the Tribunal with regard to its request under Section 33 (1) of the Arbitration Act, it requested the Arbitral Tribunal to fix a date for oral submissions vide its email dated 07th May, 2018. In response, the Arbitral Tribunal sent email dated 17th May, 2018, wherein it attached scanned copy of the Addendum to Award dated 17th May, 2018. As per petitioner, it was on receipt of the said Addendum dated 17th May, 2018 that it came to know that the Arbitral Tribunal vide its order dated 07th March, 2018 had corrected the typographical errors in paras 96 and 112 of the Award pursuant to its application under Section 33 (1) of the Arbitration Act. By the said Addendum dated 17th May, 2018, the Arbitral Tribunal, on its own accord, corrected another typographical error which had crept in the order dated 07th March, 2018, while making correction in para 112 of the award. 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. 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. 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. 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.

Finding of the Court:

The Court held that the period of limitation for filing petition 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 was held that making and delivery of the Award are two different stages of an arbitration proceeding. The Court further held that 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 Arbitration Act. The Court also held that the limitation period for filing the present petition was till 22nd August, 2018 and the initial filing of 14th August, 2018 cannot be considered as filing, as the same was non-est. The Court also held that the re-filing as done by petitioner on 24th August, 2018, 31st August, 2018 and 01st September, 2018 cannot be considered as non-est filing. Accordingly, the Court held that 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 Court also held that 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. The Court also held that petitioner is granted liberty to file application for condonation of delay within three weeks from the passing of this judgment.

Issues: Whether the 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 Arbitration and Conciliation Act, 1996.

Ratio Decidendi: The Court held that the period of limitation for filing petition 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 was held that making and delivery of the Award are two different stages of an arbitration proceeding. The Court further held that 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 Arbitration Act.

Final Decision: The Court held that 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 Court also held that 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. The Court also held that petitioner is granted liberty to file application for condonation of delay within three weeks from the passing of this judgment.