1 arbp37-08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO.37 OF 2008 Pauroochisty R. Anklesaria ....Petitioner V/s. Kotak Securities Ltd. ....Respondent Mr.Ajay Khandhar with Ms.U.K. Sahani i/b M/s.Ajay Khandhar & Co. for the Petitioner. Mr.V.K. Ramabhadran with Mr.P. Avhad for the Respondent. CORAM : S.J. VAZIFDAR, J. DATE : 26TH OCTOBER, 2010. P.C. :- 1. The petition has been filed under section 34 of the Arbitration and Conciliation Act, 1996. 2. It is not necessary to deal with the petitioner’s case on merits, as the petition is barred by limitation. The question is covered by a judgment of the Supreme Court, which I will refer to shortly. 3. The arbitrator made an award on 1.6.2007 rejecting the petitioner’s claim. The petitioner by a letter dated 23.6.2007 sought a review of the award. The letter in terms called upon the arbitrator to review the award. The contents of the letter also leave no doubt that the application was for a review of the award. By an order dated 19.7.2007 the arbitrator therefore rightly rejected the petitioner’s application dated 23.6.2007, which was purportedly under section 33 of the said Act. 2 arbp37-08 4. This petition was filed on 29.10.2007. According to the petitioner the period of limitation for the petition under section 34 of the said Act commenced only on 30.7.2007 when the petitioner received a copy of the order dated 19.7.2007, rejecting the application purportedly under section 33 of the said Act. According to the respondent, the period of limitation commences from 23.6.2007 i.e. from the date when the petitioner received the copy of the award on 1.6.2007. 5. In my opinion, the period of limitation commenced from 23.6.2007. The application dated 23.6.2007 purportedly under section 33 of the said Act was ex-facie not maintainable. Section 33 of the said Act does not empower the arbitrator to review the award. Even if certain contentions or issues raised by a party are not considered by the arbitrator, the remedy is to file a petition under section 34 of the said Act and not an application for a review of the award under section 33 of the said Act. 6. Once it is held that an application purportedly under section 33 of the said Act is not maintainable, it follows that the period of limitation cannot be computed from the date on which such an application is rejected by the arbitrator for want of jurisdiction. 7. This is covered by a judgment of the Supreme Court in the case of State of Arunachal Pradesh v. Damani Construction Co. (2007) 10 SCC 742. In that case, the award albeit a final interim award, was made on 12.10.2003. The appellant wrote a letter/application dated 2.4.2004 to the arbitrator for a review of the award and also sought clarification in respect of the award. The arbitrator by a letter dated 10.4.2004 stated that he had no jurisdiction to entertain the request for review and that the award was a 3 arbp37-08 final award. The petition under section 34 of the said Act was filed on 6.8.2004. It was contended on behalf of the appellant that the period of limitation would commence from 10.4.2004. The contention was rejected. After holding that an application for review cannot be made under section 33 of the said Act, the Supreme Court held as under :- “8. Firstly, the letter had been designed not strictly under Section 33 of the Act because under Section 33 of the Act a party can seek certain correction in computation of errors, or clerical or typographical errors or any other errors of a similar nature occurring in the award with notice to the other party or if agreed between the parties, a party may request the Arbitral Tribunal to give an interpretation of a specific point or part of the award. This application which was moved by the appellant does not come within any of the criteria falling under Section 33(1) of the Act. It was designed as if the appellant was seeking review of the award. Since the Tribunal had no power of review on merit, therefore, the application moved by the appellant was wholly misconceived. Secondly, it was prayed whether the payment was to be made directly to the respondent or through the court or that the respondent might be asked to furnish bank guarantee from a nationalised bank as it was an interim award, till final verdict was awaited. Both these prayers in this case were not within the scope of Section 33. Neither review was maintainable nor the prayer which had been made in the application had anything to do with Section 33 of the Act. The prayer was with regard to the mode of payment. When this application does not come within the purview of Section 33 of the Act, the application was totally misconceived and accordingly the arbitrator by communication dated 10-4-2004 replied to the following effect: “However, for your benefit I may mention here that as per the scheme of the Act of 1996, the issues/claims that have been adjudicated by the interim award dated 12-10-2003 are final and the same issues cannot be gone into once again at the time of passing the final award.” 9. Therefore, the reply given by the arbitrator does not give any fresh cause of action to the appellant so as to move an application under Section 34(3) of the Act. In fact, when the award dated 12-10-2003 was passed the 4 arbp37-08 only option with the appellant was either to have moved an application under Section 34 within three months as required under sub-section (3) of Section 34 or within the extended period of another 30 days. But instead of that a totally misconceived application was filed and there too the prayer was for review and with regard to mode of payment. The question of review was totally misconceived as there is no such provision in the Act for review of the award by the arbitrator and the clarification sought for as to the mode of payment is not contemplated under Section 33 of the Act. Therefore, in this background, the application was totally misconceived and the reply sent by the arbitrator does not entitle the appellant a fresh cause of action so as to file an application under Section 34(3) of the Act, taking it as the starting point of limitation from the date of reply given by the arbitrator i.e. 10-4-2004.”. 8. In the circumstances, the arbitration petition is dismissed as being barred by limitation. In this view of the matter, it is not necessary to consider the other contentions.