ORDER

This Arbitration Original Petition has been filed under Section 34(2)(iv)

of the Arbitration and Conciliation Act, 1996(hereinafter called as 'the Act') to set aside the arbitral award dated 31.12.2021.

2. When the matter is taken up for hearing, a preliminary objection was raised by the learned Senior Counsel appearing for the respondent by contending that the O.P itself is liable to be struck off for the reasons that the same had been filed beyond the period of limitation as the petitioner had paid the deficit Court fee only on 07.07.2022, whereas the period of limitation would at any extent came to an end on 03.06.2022. Hence, this Court had directed the respective counsels to address on the issue of limitation for further proceeding in the matter.

3. Heard Mr.AR.L.Sundaresan, learned Additional Solicitor General appearing for Mr.M.Karthikeyan, learned counsel appearing for the petitioner and Mr.R.Parthasarathy learned Senior Counsel appearing for Mr.S.Mohanasundararajan, learned counsel appearing for the respondent.

4. The learned Additional Solicitor General would submit that an Award was initially passed on 31.12.2021 and the same was received by the parties on 06.01.2022. A Petition under Section 33 of the Arbitration and Conciliation Act (hereinafter referred to 'the Act' )was filed by the petitioner for correcting some calculation errors and based upon the revised calculation a modified Award was passed on 02.02.2022 and was received on 04.02.2022. A Petition under Section 34 (1) of the Act was filed on 25.04.2022 and the same was returned by Registry for compliance of certain defects. On complying the defects pointed out by the Registry, the same had been represented on 02.08.2022 along with deficit Court fee. However, noting that certain of the returns are yet to be complied, the papers was again returned on 18.08.2022 and represented on 29.08.2022. In the said process, there had occasioned delay of 73 days in representing the O.P. and hence, an application had been taken. The learned Master by an order dated 07.11.2022 had condoned the delay on payment of cost of Rs.1,000/- to the Chief Justice Relief Fund which had also been paid by the petitioner. Therefore, he would submit that when the delay in representation had been condoned by the learned Master there can be no question of delay in filing the O.P. as the original O.P. had been filed as early as in the month of April, 2022 itself, well within the period of 90 days. He had also relied upon the judgment of the Hon'ble Apex Court reported in (2009) 9 SCC 173 and contended that when there is an extension of time for payment of Court fee, the Court can always extend the time for payment of deficit Court fee.

5. In this case, he would submit that the Registry had returned the papers for making deficit Court fee which had also been paid on 07.07.2022 before representing the O.P.. Since, there was a delay in representation, an application had been taken out and the same had been condoned. The respondent without challenging the same cannot be heard to say that the O.P. is barred by limitation.

6. He had also further relied upon a judgement of the Hon'ble Apex Court reported in 1970 (1) SCC 769 to contend that if an opportunity is given for curing the deficiency and if the same had been made good at the first instance by the deeming Provision of Section 149 of CPC, a Memorandum of Appeal is to have full force and effect for the facts of the case. He would submit that the petitioner had complied with the deficit in the first instance and therefore, it cannot be said that the OP is beyond the period of limitation. He had also further relied upon a judgement of the learned Single Judge of this court made in S.A.No.640 of 2009 dated 16.09.2015 and contend that the Courts are empowered with discretion to allow the deficit of Court fee at any stage of proceedings by exercising the powers vested under Section 149 of CPC. He would submit that the provisions of CPC are applicabl