IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.08.2011 CORAM THE HON'BLE MRS. JUSTICE R.BANUMATHI and THE HON'BLE MR. JUSTICE B.RAJENDRAN O.S.A.No.29 of 2011 M/s.S.K.Swamy and Company, represented by its Managing Partner K.Palanivelu, Civil Engineering Contractor, No.30/9, Rajmahal Vilas Extension, Bangalore-560 080. ... Appellant Vs. 1.Union of India, rep. by its General Manager, Southern Railway, Chennai-3. 2.The Chief Engineer (Construction), Southern Railway, Construction Office, Egmore, Chennai-8. 3.Mr.L.R.Ganesh [Presiding Arbitrator], Presently the Financial Adviser and Chief Accounts Officer (C), Western Railway, Church Gate, Mumbai-20. 4.Dr.G.Narayanan [Arbitrator], Presently the Divisional Railway Manager, Trivandrum Division, Southern Railway, Thycaud, Thiruvananthapuram-695 014. 5.Mr.Md.Farock [Arbitrator], Presently the Chief Engineer (Construction), Southern Railway, Construction Office, Egmore, Chennai-600008. ... Respondents Original Side Appeal is filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated 31.03.2010 made in Application No.6163 of 2009 in O.P.No.473 of 2005 on the file of this Court. https://hcservices.ecourts.gov.in/hcservices/ For Appellant : Mr.Amalaraj S.Penikilpatti For Respondents : Mr.M.Vellaisamy for R1 and R2 R3 to R5 - Arbitrators JUDGMENT R.BANUMATHI,J Being aggrieved by the dismissal of Application No.6163 of 2009 filed under Order 6, Rule 17 of C.P.C. read with Order 14, Rule 8 of Original Side Rules refusing permission to amend O.P.No.473 of 2005 filed under Section 34 of Arbitration and Conciliation Act, 1996, Appellant has preferred this appeal. 2. Brief facts are that as per agreement No.396/CN/96 dated 23.12.1996, the contract for “Gauge Conversion from MSB to TPJ- Parallel BG Like from CGL to VM-Construction of Major Bridge No: 211 at Km. 71/14 to 72/14 between Ottivakkam and Padalam Stations [substructure below bed level only]” was allotted to the Appellant. Differences arose between the parties and Appellant raised dispute before the Arbitral Tribunal for four claims:- (i) Payment for new items of works executed, but not paid; (ii) Payment of steel (reinforcement) used in the work; (iii) Compensation for other losses suffered; and (iv) Interest. Arbitral Tribunal passed an Award dated 03.08.2004 and the summary of the Award is as under:- Claim No. Brief description Amount claimed Amount awarded 1. Payment for new items of works executed but not paid Rs.36,45,000/- Rs.5,43,460/ - 2. Regarding payment of steel used in the work (reinforcement) Rs.38,75,602.50 NIL 3. Compensation for other losses suffered a) Rs.2,00,000/- b) Rs.9,00,000/- c) Rs.4,00,000/- NIL Rs.4,65,600/ - NIL 4. Interest at 24% per annum from 1.7.97 to the actual date of payment on all the above claim As per actual As per award under the claim Railway's Counter Claim NIL NIL https://hcservices.ecourts.gov.in/hcservices/ 3. Award dated 03.08.2004 was received by the Appellant on 08.08.2004. Appellant filed Petition under Section 33 of Arbitration and Conciliation Act for “Additional Award” with proper and clear interpretations, corrections prayed. On examination of the Petition, by the order dated 03.12.2004, Arbitral Tribunal dismissed the Petition filed under Section 33 of the Act holding that no further corrections, interpretations and additional award are warranted. 4. Appellant filed Petition under Section 34 of Arbitration and Conciliation Act to set aside the Additional Award dated 03.12.2004. The matter was heard by the single Judge. During the course of arguments, Appellant filed Application in A.No.6163 of 2009 under Order 6, Rule 17 C.P.C. read with Order 14, Rule 8 of Original Side Rules to amend the prayer in the Original Petition as under:- “For the reasons stated in the affidavit, it is humbly prayed that this court may be pleased to set aside the preliminary Award dated 3.8.2004 as merged with the Final award dated 3.12.2004; passed by the Arbitral Tribunal (communicated to the parties vide the Tribunal's letter No.ARB/LRG/S.K.Swamy dated 13.12.2004, comprising of the respondents 3, 4 and 5 and passed a fresh award allowing all the claims of the petitioner.” instead of the following prayer:- “For the reasons stated in the foregoing paragrphs, it is humbly prayed that this may be pleased to set aside the Award dated 3.12.2004 passed by the Arbitral Tribunal (communicated to the parties vide the Tribunal's letter No.ARB/LRG/S.K.Swamy dated 13.12.2004 comprising of the respondents 3, 4 and 5 and pass a fresh Award allowing all the claims of the petitioner.” 5. Pointing out the Return by the Registry and that in the re- presentation, Appellant made it very clear that they are challenging only the Award dated 3.12.2004 and the matter being heard in the Court as to the maintainability, the learned Judge refused the amendment. Learned Judge further held that in O.P.No.473 of 2005, Award dated 03.12.2004 rejecting the Petition under Section 33 of Arbitration and Conciliation Act alone has been challenged and while so, Appellant cannot seek to amend the prayer beyond the limitation stipulated under Section 34 (3) of Arbitration and Conciliation Act. 6. Challenging the impugned order, Mr.Amalaraj S.Penikilapatti, learned counsel appearing for Appellant has contended that the initial Award dated 03.08.2004 and the final Award dated 03.12.2004 constitute a single “Inseparable Composite Award” that cannot be bifurcated for the purpose of any 'Setting-Aside' proceedings under https://hcservices.ecourts.gov.in/hcservices/ Section 34 of Arbitration and Conciliation Act. Learned counsel for Appellant would further contend that Appellant was always under the impression that in O.P.No.473 of 2005 they only sought to set- aside the Composite Award i.e. initial Award dated 03.08.2004 and final Award dated 03.12.2004 passed by the Arbitral Tribunal and that the relief was not restricted to set aside any one of the Awards in particular. Main contention of Appellant is that initial Award dated 03.08.2004 and final Award dated 03.12.2004 jointly constitute a “Composite Award” that is both inseparable and non- distinguishable. 7. We have heard Mr.M.Vellaisamy, learned counsel appearing for Respondents 1 and 2. 8. Drawing our attention to the “Return of the Registry” and the “Endorsement made for re-presentation by the counsel”, learned counsel for Respondents 1 and 2 would contend that in the re- presentation endorsement, Appellant has clearly stated that "Appellant is challenging only the Award dated 03.12.2004" and while hearing the Petition for maintainability, Court also made it clear that the challenge is only in respect of the Award dated 03.12.2004. It was further submitted that even though O.P.No.473 of 2005 was pending from 2005, Appellant had belatedly preferred application [A.No.6163 of 2009] seeking amendment only in 2009 and the proposed amendment was beyond the stipulated period of limitation and the application was rightly rejected by the single Judge. 9. Since the impugned order refers to “Return by the Registry” and hearing the Petition in the open Court for "maintainability", we have called for the Original Petition and the Order Sheet in O.P.No.473 of 2005. By perusal of the Original Petition, it is seen that the Registry has raised doubts regarding maintainability of the Original Petition [O.P.No.473 of 2005] for which a detailed endorsement of representation was made interalia stating "the date of impugned award is clearly mentioned as 3.12.2004 and described as "the final award dated 3.12.2004 and communicated, vide the Tribunal's letter dated 13.12.2004". Thereafter, the matter was called in the Court for maintainability and the Court passed the order to the effect that the challenge is only to the Award dated 03.12.2004 and Appellant has not challenged the Award dated 03.08.2004. The order dated 30.06.2005 reads as under:- "Office is directed to number the O.P. only in respect of the challenge to the award dated 3.12.2004, as the learned counsel for the petitioner has submitted that he has not challenged the award dated 3.8.2004. Post https://hcservices.ecourts.gov.in/hcservices/ for admission on 4.7.2005." Having specifically stated that Appellant is challenging only the Award dated 03.12.2004, now it is not open to the Appellant to contend that he was always under the impression that in the Original Petition [O.P.No.473 of 2005], the Appellant sought to set aside the "Composite Award" i.e. initial Award dated 03.08.2004 and final Award dated 03.12.2004. 10. Learned counsel for Respondent has submitted that having failed to challenge the original Award dated 03.08.2004 and any amendment dates back to the Original Petition and the Appellant cannot challenge the original Award dated 03.08.2004 beyond the time stipulated in law and the relief now sought for by virtue of amendment is objected by limitation and therefore, it is not open to the Appellant to challenge the original Award. 11. Application for setting aside an award should be made within three months from the date of receiving the award. However, proviso to Section 34(3) empowers the court to entertain such application within a further period of 30 days on showing sufficient cause by the applicant. The expression 'entertain an application within a further period of thirty days but not thereafter' is couched in the negative and is mandatory in character. Power to condone available under proviso to Section 34(3) is analogous to power under Section 5 of Limitation Act with the only difference of limitation of 30 days. 12. As pointed out earlier, Award dated 03.08.2004 was received by the Appellant on 08.8.2004. Challenging the Award dated 03.12.2004, Petition under Section 34 of Arbitration and Conciliation Act came to be filed on 25.2.2005 which is surely beyond the condonable period of 90 days plus 30 days. Having failed to challenge the original Award dated 03.08.2004, Appellant cannot seek to challenge the same under the pretext of amendment application. 13. An application under Order 6, Rule 17 of C.P.C. can be made for an amendment of the Petition already filed for setting aside an award. Whether such amendment should be allowed or not would rest upon the well settled principles already established. Power to permit amendment has to be exercised only in exceptional circumstances. When the Appellant has filed the Original Petition in 2005, during the course of arguments in 2009, amendment petition came to be filed. 14. Learned counsel for Appellant then contended that Award dated 03.12.2004 is an "Additional Award" which has to be treated as "Composite Award" comprising of both initial Award dated 03.08.2004 https://hcservices.ecourts.gov.in/hcservices/ and final Award dated 03.12.2004. In this regard, the learned counsel for Appellant has drawn our attention to the nomenclature of the Award dated 03.12.2004 as "Additional Award" 15. Section 33 of Arbitration and Conciliation Act deals with correction and interpretation of Award and additional award. As per Section 33 (4) of the Act, 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. On all the four claims, Appellant had filed Petition requesting for Additional Award with proper and clear interpretation, correction prayed. Examining the justifiability of the Award, Arbitral Tribunal dismissed the Petition holding that no further correction, interpretation and Additional Award warranted based on the detailed examination of the application. Even though the nomenclature of the order is stated as "Additional Award" that does not in any way make it as "Composite Award" comprising of the Awards dated 03.08.2004 and 03.12.2004. 16. Having regard to the time stipulated to challenge the Award under Section 34 (3) of Arbitration and Conciliation Act and taking note of the order passed at the time of admitting the Original Petition, learned Judge has rightly dismissed the application A.No.6163 of 2009. We do not find any reason warranting interference with the order of learned Judge. 17. In the result, this appeal is dismissed. Consequently, connected M.Ps. are closed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. bbr To The Sub Assistant Registrar, Original Side, High Court, Madras. 1 cc to Mr.Amalaraj S.Penikilapatti, Advocate, Sr. 50794 1 cc to Mr.M.Vellaisamy, Advocate, Sr. 50340 O.S.A.No.29 of 2011 UG (CO) kk 30/8 https://hcservices.ecourts.gov.in/hcservices/