1 R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE15H DAY OF OCTOBER, 2020 BEFORE THE HON’BLE MR.JUSTICE S.VISHWAJITH SHETTY WRIT PETITION NO.103813/2016 (GM-RES) BETWEEN: HUBLI ELECTRICITY SUPPLY COMPANY LTD. CORPORATE OFFICE AT NAVANAGAR, P.B. ROAD, HUBBALLI – 580025 REPRESENTED BY ITS SUPERINTENDING ENGINEER (TENDERING AND PROCUREMENT SECTION) ... PETITIONER (BY SRI. B. S. KAMATE, ADVOCATE) AND M/S. SHARAVATHY CONDUCTORS COMPANY PRIVATE LIMITED, REG. OFFICE NO.23, BENGALURU, CO-OPERATIVE INDUSTRIAL ESTATE, 6TH MILE OLD MADRAS ROAD, P.B.NO.1609 BENGALURU-560016. ... RESPONDENT (BY SRI. HARSH DESAI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT OR DIRECTION, QUASHING THE IMPUGNED ORDER
DATED1002.2016, PASSED BY THE KARNATAKA MICRO AND SMALL ENTERPRISES FACILITATION COUNCIL BANGALORE/ARBITRAL AUTHORITY IN CASE NO.1.2012 PRODUCED AT ANNEXURE-H AND ETC., 2 THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN “B” GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
This writ petition is filed under Article 226 and 227 of the Constitution of India with a prayer to quash the order dated 10.02.2016 passed by the Karnataka Micro and Small Enterprises Facilitation Council Bangalore/Arbitral Authority in Case No.1.2012 vide Annexure-H.
2. Heard Sri. B. S. Kamate, learned counsel appearing for the petitioner and Sri. Harsh Desai, learned counsel appearing for the respondent.
3. It is the case of the petitioner that it had placed two purchase orders bearing P.O.No.1218 dated 24.03.2015 and P.O.No.1667 dated 17.01.2009 with the respondents for supply of ACSR conductors and to the WEASEL for the extent of 2430 kms and 500 kms, respectively, subject to terms and conditions. Though the petitioner company paid the entire payments in respect of 3 purchase orders, the respondent company claimed interest alleging delay in payments. Since the conciliatory proceedings failed, the matter was taken up for arbitration.
4. The Arbitral Authority passed an award on 23.07.2015 and ordered that amount of Rs.10,144/- is due in respect of P.O.No.1667 dated 17.01.2009 towards principle to the respondent company for the material supplied and the respondent company is entitled to the interest to the delayed period up to the receipt of principle amount as per the provisions of Section 16 of MS MED Act. The said award was passed on 23.07.2015. On 18.08.2015 an application vide Annexure-F herein was filed by the respondent company under Section 33 (1)(a) &(4) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act” for short) with a prayer for passing a additional award. Considering the said application, after hearing both the parties, the Arbitral Authority passed the impugned order dated 10.02.2016 4 modifying its earlier award by including P.O.No.1218 in addition to the earlier P.O.No.1667. Being aggrieved by the said order dated 10.02.2016, the petitioner is before this Court.
5. The learned counsel Sri. B. S. Kamate, for petitioner submits that the Arbitral Authority had no jurisdiction to pass the impugned order. He submits that the Arbitral Authority in Para No.11.4 of the award has observed that the principle amount in respect of P.O.No.1218 was paid in full and it is therefore, P.O.No.1218 was left out in the operative portion of the award. He also submits that the impugned order passed by the Arbitral Authority amounts to review of the original award and this is not permissible under law. He submits that the original award has already been challenged by him under Section 34 of the Act and therefore, the impugned order could not have been passed by the Arbitral Authority. 5
6. Per contra, learned counsel Sri. Harsh Desai, for respondent submits that the application under Section 31 (1)(a) &(4) was filed by him within 30 days from the date of award. The original award has been challenged by the petitioner much thereafter. He also submits that the Arbitral Authority has got a power under Section 33 of the Act to correct and interpret its award and also to pass additional award. He submits that any order passed by the Arbitral Authority exercising its power under Section 33 of the Act would form a part of the arbitral award as provided under sub-section (2) of Section 33 of the Act. Section 33 of the Act reads as hereunder. “33. Correction and interpretation of award; additional award.— (1) Within thirty days from the receipt of the arbitral award, unless another period of time has been agreed upon by the parties— (a) a party, with notice to the other party, may request the arbitral tribunal to correct any computation errors, any clerical or typographical 6 errors or any other errors of a similar nature occurring in the award; (b) if so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award. (2) If the arbitral tribunal considers the request made under sub-section (1) to be justified, it shall make the correction or give the interpretation within thirty days from the receipt of the request and the interpretation shall form part of the arbitral award. (3) The arbitral tribunal may correct any error of the type referred to in clause (a) of sub-section (1), on its own initiative, within thirty days from the date of the arbitral award. (4) Unless otherwise agreed by the parties, a party with notice to the other party, may request, within thirty days from the receipt of the arbitral award, the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award. (5) If the arbitral tribunal considers the request made under sub-section (4) to be justified, it shall make the additional arbitral award within sixty days from the receipt of such request. 7 (6) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, give an interpretation or make an additional arbitral award under sub-section (2) or sub-section (5). (7) Section 31 shall apply to a correction or interpretation of the arbitral award or to an additional arbitral award made under this section.
7. From a reading of Section 33 of the Act, it is very clear that the Arbitral Authority has got a power to correct and interpret its order and also pass additional award if an application is filed by the aggrieved party within the period prescribed in the said provision. A reading of sub-section 2 of Section 33 makes it very clear that if the Arbitral Tribunal considers an application under sub-section 1 of Section 33 and passes an order, it shall form part of the arbitral award. Perusal of the order impugned in this writ petition makes it clear that the said order is passed by Arbitral Authority in exercise of its powers under Section 33(1) of the Act. Therefore, the impugned order now passed by the Arbitral Authority 8 forms a part of the original arbitral award dated 30.03.2015.
8. Recourse available under the Act against any arbitral award is provided under Section 34 of the Act. The petitioner is therefore required to challenge the impugned order, which forms the integral part of the original award by taking recourse to Section 34 of the Act and the same cannot be challenged invoking Article 226 and 227 of the Constitution of India.
9. At this juncture, learned counsel for the petitioner, Sri. B. S. Kamate, submits that he may be granted liberty to file an appeal as provided under Section 34 of the Act against the impugned order.
10. The prayer made by the learned counsel for petitioner is granted. Liberty is reserved to the petitioner to challenge the impugned order under Section 34 of the Act and it is open for the petitioner to explain the delay invoking section 14 of the Limitation Act. 9
11. With the above observations, the writ petition stands disposed of. Sd/- JUDGE yan