w w w . L a w y e r S e r v i c e s . i n



Dr. Writer's Food Products Pvt. Ltd. & Others v/s The Cosmos Co-operative Bank Limited


Company & Directors' Information:- B. P. FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15311MP1994PTC032994

Company & Directors' Information:- INDIA FOOD COMPANY PRIVATE LIMITED [Active] CIN = U15133MH2006PTC161188

Company & Directors' Information:- P P PRODUCTS PVT LTD [Active] CIN = U32305WB1991PTC051091

Company & Directors' Information:- S P P FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15412DL2004PTC128666

Company & Directors' Information:- K K PRODUCTS LIMITED [Active] CIN = U31300DL1991PLC045521

Company & Directors' Information:- K B PRODUCTS PRIVATE LIMITED [Active] CIN = U51909MH2007PTC169627

Company & Directors' Information:- J S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15314OR1991PTC002964

Company & Directors' Information:- K G PRODUCTS PRIVATE LIMITED [Active] CIN = U51909PB2007PTC031201

Company & Directors' Information:- H R B FOOD PRODUCTS PVT LTD [Active] CIN = U15146WB1988PTC045281

Company & Directors' Information:- S S P PRODUCTS PRIVATE LIMITED [Active] CIN = U22110WB1974PTC210201

Company & Directors' Information:- M L B PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1990PTC040990

Company & Directors' Information:- V D FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15400DL2012PTC231717

Company & Directors' Information:- O. S. FOOD PRIVATE LIMITED [Active] CIN = U15119DL2006PTC152903

Company & Directors' Information:- M M PRODUCTS LIMITED [Strike Off] CIN = U28994DL1992PLC050955

Company & Directors' Information:- M P K PRODUCTS PVT LTD [Active] CIN = U26919AS1994PTC004183

Company & Directors' Information:- P R FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC030483

Company & Directors' Information:- G K PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1991PTC043260

Company & Directors' Information:- S S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15310MH2003PTC142530

Company & Directors' Information:- B K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15312OR1996PTC004541

Company & Directors' Information:- N R PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51109AS1998PTC005561

Company & Directors' Information:- C L PRODUCTS INDIA LIMITED [Active] CIN = U51909DL2002PLC116975

Company & Directors' Information:- K. S. A. PRODUCTS PRIVATE LIMITED [Active] CIN = U51220PB2014PTC039023

Company & Directors' Information:- O H P FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U52205DL1999PTC100269

Company & Directors' Information:- K V FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15122DL2007PTC162739

Company & Directors' Information:- K. C. FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15431JK1982PTC000554

Company & Directors' Information:- G I S FOOD PRIVATE LIMITED [Active] CIN = U15412DL2002PTC117761

Company & Directors' Information:- K I C FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15316DL1979PTC009757

Company & Directors' Information:- D. R. PRODUCTS PRIVATE LIMITED [Active] CIN = U52320DL2011PTC213508

Company & Directors' Information:- T F FOOD PRIVATE LIMITED [Active] CIN = U15122MH2012PTC232222

Company & Directors' Information:- R B FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15313DL2010PTC202753

Company & Directors' Information:- R K B FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15490KL2013PTC033500

Company & Directors' Information:- R S PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1989PTC036603

Company & Directors' Information:- R R PRODUCTS PRIVATE LIMITED [Active] CIN = U24249HR1999PTC034291

Company & Directors' Information:- I G PRODUCTS PRIVATE LIMITED [Active] CIN = U74999WB2012PTC183503

Company & Directors' Information:- S K G FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15419UP1991PTC013771

Company & Directors' Information:- J S R PRODUCTS PRIVATE LIMITED [Active] CIN = U31908DL2007PTC170841

Company & Directors' Information:- C F C PRODUCTS PRIVATE LIMITED [Active] CIN = U28129DL1998PTC095531

Company & Directors' Information:- B H FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15134DL1997PTC084273

Company & Directors' Information:- N S FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15412WB1992PTC055591

Company & Directors' Information:- M S PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1993PTC055125

Company & Directors' Information:- B R PRODUCTS PRIVATE LIMITED [Active] CIN = U31909DL1999PTC100727

Company & Directors' Information:- E-COSMOS (INDIA) PRIVATE LIMITED [Active] CIN = U30007KA2004PTC034007

Company & Directors' Information:- S P B PRODUCTS LIMITED [Active] CIN = U51909DL1996PLC082631

Company & Directors' Information:- H N FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15146UP1990PTC011540

Company & Directors' Information:- V K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15412UP1988PTC010023

Company & Directors' Information:- G K D PRODUCTS PRIVATE LIMITED [Active] CIN = U15431WB1998PTC086840

Company & Directors' Information:- M B R PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U17111WB1993PTC060806

Company & Directors' Information:- P D PRODUCTS PRIVATE LIMITED [Active] CIN = U23201DL2000PTC108462

Company & Directors' Information:- S K M PRODUCTS PRIVATE LIMITED [Active] CIN = U18101DL1998PTC093415

Company & Directors' Information:- H R PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U74899DL1978PTC009183

Company & Directors' Information:- V S PRODUCTS PRIVATE LIMITED [Active] CIN = U36900DL2008PTC185445

Company & Directors' Information:- H K PRODUCTS LIMITED [Active] CIN = U51900GJ2015PLC085457

Company & Directors' Information:- S R K PRODUCTS PRIVATE LIMITED [Active] CIN = U51221KA1989PTC010032

Company & Directors' Information:- G M PRODUCTS PRIVATE LIMITED [Active] CIN = U74899DL1991PTC044687

Company & Directors' Information:- V T N PRODUCTS PVT LTD [Active] CIN = U51109WB1996PTC080094

Company & Directors' Information:- B M FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15419WB1993PTC060386

Company & Directors' Information:- I K FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15412WB1991PTC051852

Company & Directors' Information:- S S V FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15499AP1982PTC003547

Company & Directors' Information:- P L FOOD PRIVATE LIMITED [Active] CIN = U74899DL1985PTC021305

Company & Directors' Information:- W S T Q PRODUCTS PRIVATE LIMITED [Active] CIN = U31300DL1999PTC102655

Company & Directors' Information:- J M K PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U24246OR2005PTC008446

Company & Directors' Information:- S Q P FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15100MH2003PTC139217

Company & Directors' Information:- F S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15311MH2000PTC126031

Company & Directors' Information:- Z K FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400MH2010PTC209818

Company & Directors' Information:- G S T PRODUCTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U31909TN2006PTC059575

Company & Directors' Information:- M B S FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U01112WB2003PTC096375

Company & Directors' Information:- S M P PRODUCTS PRIVATE LIMITED [Active] CIN = U25200DL2009PTC190965

Company & Directors' Information:- N D FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15131DL2002PTC115754

Company & Directors' Information:- S N S PRODUCTS PRIVATE LIMITED [Active] CIN = U15490DL2005PTC142749

Company & Directors' Information:- U B PRODUCTS PRIVATE LIMITED [Active] CIN = U51224DL2002PTC116457

Company & Directors' Information:- A AND A PRODUCTS PRIVATE LIMITED [Active] CIN = U21098MP2004PTC017128

Company & Directors' Information:- V J PRODUCTS PRIVATE LIMITED [Active] CIN = U36900GJ2011PTC065252

Company & Directors' Information:- S AND A PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51311DL1991PTC042938

Company & Directors' Information:- S AND G PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909DL1982PTC014843

Company & Directors' Information:- B P PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U24241WB1999PTC089499

Company & Directors' Information:- C K M FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909KL1998PTC012358

Company & Directors' Information:- D AND P PRODUCTS LIMITED [Amalgamated] CIN = U99999MH1951PTC008422

Company & Directors' Information:- S D H PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U55204KA2006PTC040734

Company & Directors' Information:- V M PRODUCTS PRIVATE LIMITED [Active] CIN = U24100DL2014PTC266679

Company & Directors' Information:- E C A PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U27209TN1987PTC014022

Company & Directors' Information:- G S C FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15316WB1985PTC038398

Company & Directors' Information:- A K G FOOD PRODUCTS PVT LTD [Under Liquidation] CIN = U15412WB1990PTC049789

Company & Directors' Information:- J M D FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15419DL1998PTC097578

Company & Directors' Information:- G S PRODUCTS LIMITED [Strike Off] CIN = U25191UP1989PLC010483

Company & Directors' Information:- L K FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15200TG2016PTC103411

Company & Directors' Information:- FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15431JK1966PTC000304

Company & Directors' Information:- A R K PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U24231UP1978PTC004606

Company & Directors' Information:- S. M. PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U17299DL1966PTC004634

Company & Directors' Information:- R R FOOD PRODUCTS PRIVATE LIMITED [Active] CIN = U15490PN2015PTC154753

Company & Directors' Information:- R K D FOOD PRIVATE LIMITED [Strike Off] CIN = U74999MH2014PTC253447

Company & Directors' Information:- R. M. R. PRODUCTS PRIVATE LIMITED [Active] CIN = U74999MH2017PTC298120

Company & Directors' Information:- A N FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400TG2013PTC091969

Company & Directors' Information:- S G L FOOD PRIVATE LIMITED [Strike Off] CIN = U74120UP2013PTC057688

Company & Directors' Information:- P & Q PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U51909DL2014PTC269162

Company & Directors' Information:- R V S K FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15490DL2012PTC245851

Company & Directors' Information:- K G Y FOOD PRODUCTS PRIVATE LIMITED [Strike Off] CIN = U15400KA1984PTC005909

Company & Directors' Information:- H T PRODUCTS PVT LTD [Strike Off] CIN = U29266WB1981PTC033424

Company & Directors' Information:- PRODUCTS (INDIA) LTD [Strike Off] CIN = U31901WB1961PLC024991

Company & Directors' Information:- FOOD PRODUCTS (INDIA) PVT. LTD. [Strike Off] CIN = U15311HR1994PTC032356

Company & Directors' Information:- M PRODUCTS & CO PVT LTD [Strike Off] CIN = U51909WB1956PTC023215

Company & Directors' Information:- THE COSMOS BANK LIMITED [Active] CIN = U99999MH1933PTC002029

Company & Directors' Information:- M K FOOD PRODUCTS PVT LTD [Strike Off] CIN = U15209DL1979PTC009924

    Commercial Arbitration Petition No. 486 of 2017

    Decided On, 20 September 2019

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE R.D. DHANUKA

    For the Petitioners: Avinash H. Fatangare, Advocate. For the Respondent: Joel H. Carlos, Advocate.



Judgment Text

Oral Judgment:

1. By this petition filed under section 34 of the Arbitration & Conciliation Act, 1996 (for short “the Arbitration Act”), the petitioners have impugned the arbitral award dated 4th June, 2015 and the order dated 16th February, 2017 passed by the learned arbitrator which was passed under section 33 of the Arbitration Act.

2. Mr.Carlos, learned counsel appearing for the respondent raised an issue of limitation in filing the arbitration petition under section 34(3) of the Arbitration Act insofar as the arbitral award dated 4th June, 2015 is concerned.

3. The admitted facts are as under :

The impugned arbitral award was passed on 4th June, 2015. A copy of such arbitral award was served upon the petitioners immediately. On 29th December, 2016, the respondent however made an application for correction of the arbitral award pointing out that in the cause title of the arbitral award date 4th June, 2015, the name of the respondent which appeared as Dr.Writer Food Product Pvt. Ltd. Age – Adult, Occupation – Service ought to have been mentioned as “Dr.Writer Food Product Pvt. Ltd., a company registered under the Company’s Act, 1956”. In the said application, it was further mentioned that the names of the respondent no.2 which was mentioned as Mr.Mahadev Laxman Apte, ought to have been mentioned as “Mr.Madhav Laxman Apte”. The name of the respondent no.3 which was mentioned as “Mr.Vaman Mahadev Apte” ought to have been mentioned as “Mr.Vaman Madhav Apte”. The name of the respondent no.4 which was mentioned as “Mr.Vivek Kashinath Santh” ought to have been mentioned as “Vivek Kasshinath Sant”. The said application filed on 19th December, 2016 by the respondent was opposed by the petitioners by filing an application. There was also an application for condonation of delay made by the respondent by filing an application for correction of typographical errors in the arbitral award. The application for condonation of delay was also opposed by filing a separate reply by the petitioners in the month of February, 2017. On 16th February, 2017, the learned arbitrator corrected the typographical errors pointed out by the respondent in the arbitral award dated 4th June, 2015 and condoned the delay in filing the application by the respondent.

4. It is the case of the petitioners that the petitioners received a copy of the said order dated 16th February, 2017on 2nd March, 2017 and thus within a period of three months from the date of receipt of the order, the petitioners filed this arbitration petition on 5th May, 2017 within the time prescribed under section 34(3) of the Arbitration Act.

5. Learned counsel appearing for the petitioners submits that the period of limitation for filing the arbitration application under section 34(3) of the Arbitration Act would commence from the date of service of the order passed by the learned arbitrator under section 33(1)(a) of the Arbitration Act irrespective of the fact whether the corrections were in the nature of typographical errors or not. In support of this submission learned counsel placed reliance on the judgment of the Supreme Court in case of Ved Prakash Mithal & Sons vs. Union of India, 2018 SCC OnLine SC 3181 It is submitted that under section 34(3) of the Arbitration Act the date on which the requisition under section 33 of the Arbitration Act has been disposed by the learned arbitrator has to be considered for the purpose of commencement of limitation prescribed under section 34(3) of the Arbitration Act.

6. The submissions made by the learned counsel for the petitioners are countered by the learned counsel for the respondent on the ground that admittedly the petitioners had not filed the arbitration petition under section 34 of the Arbitration Act within three months from the date of service of the signed copy of the arbitral award dated 4th June, 2015 from the learned arbitrator.

7. Learned counsel for the respondent fairly concedes that the application under section 33 of the Arbitration Act was admittedly not filed within 30 days from the date of receipt of the arbitral award dated 4th June, 2015 but was filed only on 29th December, 2016.

8. Learned counsel for the petitioners in rejoinder would submit that the petitioners have impugned not only the original arbitral award dated 4th June, 2015 but also has impugned the order dated 16th February, 2017 passed by the learned arbitrator under section 33 of the Arbitration Act.

REASONS & CONCLUSION :

9. It is clear beyond reasonable doubt that the signed copy of the arbitral award dated 4th June, 2015 was immediately served upon the petitioners by the learned arbitrator. It is also not in dispute by the petitioners that the application for correction was made on 29th December, 2016 under section 33 of the Arbitration Act was made much beyond the period of 30 days from the date of service of the signed copy of the arbitral award dated 4th June, 2015. Under section 33(1)(a) of the Arbitration Act, an application for correction of an award and the interpretation of the award or for additional award has to be made within 30 days from the date of receipt of the arbitral award unless another period of time has been agreed upon by the parties.

10. It is not the case of the petitioners that the petitioners have agreed for another period of time for making such an application for correction and interpretation of award. The application for condonation was made by the respondent which was vehemently opposed by the petitioners. It is thus clear that there was no agreement between the parties for another period of time other than the period of 30 days prescribed under section 33(1) of the Arbitration Act. In my view, there is no power of condonation of delay granted to the Arbitral Tribunal under section 33(1) of the Arbitration Act for making such application for correction and interpretation of the award or for additional award unless both the parties agree for another period of time for making such application for correction and interpretation of the arbitral award.

11. The question that arises for consideration of this Court is that if no application under section 33 of the Arbitration Act was made by the respondent within a period of 30 days from the date of service of the signed copy of the arbitral award dated 4th June, 2015 and if such application was admittedly made on 29th December, 2016 after 16 months which was much beyond the period of 30 days from the service of the signed copy of the arbitral award, whether such application was maintainable under section 33 (1)(a) of the Arbitration Act or not and whether the period taken in disposing of such application would extend time for filing an application under section 34(1) of the Arbitration Act challenging the original award.

12. In my view, since there was no power to condone the delay in making an application under section 33(1)(a) of the Arbitration Act, the application filed by the respondent under section 33 of the Arbitration Act for correction of the order dated 29th December, 2016 itself was not maintainable in law. Since the said application itself was not maintainable in law, there was no fresh period of limitation for challenging the original award under section 34(3) of the Arbitration Act. The petitioners were not required to wait for the respondent to make an application under section 33 of the Arbitration Act beyond the period of 30 days and in this case for 16 months and to wait for the out come of such application which was filed beyond the period of limitation under section 33(1) of the Arbitration Act. The time thus provided for filing an application under section 34(3) of the Arbitration Act is not extended till such belated application was filed by the respondent beyond the period of limitation and till such application was disposed of by the learned arbitrator under section 33(4) of the Arbitration Act.

13. In my view, on the date of filing of an application under section 33 of the Arbitration Act by the respondent on 16th February, 2017, the remedy of the petitioners to challenge the original award dated 4th June, 2015 had already become time barred.

14. Insofar as the judgment of the Supreme Court relied upon by the learned counsel for the petitioners in case of Ved Prakash Mithal & Sons (supra) is concerned, there is no dispute about the proposition of law laid down by the Supreme Court in the said judgment. In the said judgment however, the facts were totally different. The application for correction under section 33(1) of the Arbitration Act was made within a period of 30 days from the date of service of the signed copy of the arbitral award. The application under section 34 of the Arbitration Act was filed by the petitioner within a period of three months from the date of service of the signed copy of the order under section 33 of the Arbitration Act passed by the learned arbitrator. In these circumstances, the Supreme Court held that the under section 34(3) of the Arbitration Act the date on which the request under section 33 of the Arbitration Act has been disposed of has to be considered for the purpose of a period of limitation under section 34 of the Arbitration Act. The said judgment is clearly distinguishable in the facts of this case.

15. The Supreme Court in case of State of Arunachal Pradesh vs. Damani Construction Co. (2007) 10 SCC 742 has construed section 33 of the Arbitration Act and has held that if the application under section 33 of the Arbitration Act itself was totally misconceived, that merely because such application was received by the learned arbitrator and he gave reply to such application, such reply cannot be taken as starting point of limitation from the date of reply given by the learned arbitrator. The principles laid down by the Supreme Court in the said judgment applies to the facts of this

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case. In my view, since the application filed by the respondent under section 33 of the Arbitration Act itself was not maintainable and was beyond the period of limitation, pendency of such belated application beyond the period of limitation would not extend the period for filing the arbitration petition under section 34(3) of the Arbitration Act for impugning the original award dated 4th June, 2015. 16. Insofar as the submission of the learned counsel for the petitioners that the petitioners have impugned the order darted 16th February, 2017 passed by the learned arbitrator under section 33 of the Arbitration Act within time is concerned, in my view since the limitation for impugning the arbitral award dated 4th June, 2015 itself has expired, simplicitor impugning the order dated 16th February, 2017 under section 33(1) of the Arbitration Act within the period of limitation would be no consequence. There is thus no substance in this submission made by the learned counsel for the petitioner. The arbitration petition is dismissed for the aforesaid reasons. There shall be no order as to costs.
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