The Apex Court in Simplex Infrastructure Limited v. Union of India

FAO (COMM) 181/2025 Page 1 of 6$~57 * IN THE HIGH COURT OF DELHI AT NEW DELHI+ FAO (COMM) 181/2025 & CM APPL. 42169/2025 UNION OF INDIA .....Appellant Through: None versus MAHIPAL SINGH .....Respondent Through: CORAM:HON'BLE MR. JUSTICE SUBRAMONIUM PRASADHON'BLE MR. JUSTICE HARISH VAIDYANATHAN SHANKARO R D E R% 17.07.2025CM APPL. 42170/2025, CM APPL. 42171/2025 & CM APPL. 42172/2025 (Exemption)Allowed, subject to all just exceptions.FAO (COMM) 181/2025 & CM APPL. 42169/2025, CM APPL. 42173/20251.There was no appearance on behalf of the Appellant in the first round and the matter was passed-over. 2.There is no appearance on behalf of the Appellant even on the second round. 3.On merits, the order of the learned Commercial Courts stating that the petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “Arbitration Act”), is barred by limitation, does not warrant interference. This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/07/2025 at 12:29:37 FAO (COMM) 181/2025 Page 2 of 64.Material on record indicates that the impugned Award was passed on 30.07.2024 and it was received by the Appellant on 02.08.2024. The Appellant filed a Petition under Section 34 of the Arbitration Act on 11.12.2024 which is beyond the maximum time prescribed under Section 34 of the Arbitration Act. Section 34 of the Arbitration Act reads as under: “34. Application for setting aside arbitral award.— (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if— (a) the party making the application establishes on the basis of the record of the arbitral tribunal that]— (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/07/2025 at 12:29:37 FAO (COMM) 181/2025 Page 3 of 6scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that— (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. Explanation 1.—For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,— (i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice. Explanation This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/07/2025 at 12:29:37 FAO (COMM) 181/2025 Page 4 of 62.—For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.] (2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award: Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.] (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. (4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. (5) An application under this section shall be filed by a This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/07/2025 at 12:29:37 FAO (COMM) 181/2025 Page 5 of 6party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement. (6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party.]”5.The Apex Court has on numerous occasions held that the Courts exercising jurisdiction under Section 34 of the Arbitration Act, does not have the power to condone the delay beyond the maximum permissible period. 6.The Apex Court in Simplex Infrastructure Limited v. Union of India, (2019) 2 SCC 455, has held as under:- "18. A plain reading of sub-section (3) along with the proviso to Section 34 of the 1996 Act, shows that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 could be made within three months and the period can only be extended for a further period of thirty days on showing sufficient cause and not thereafter. The use of the words “but not thereafter” in the proviso makes it clear that the extension cannot be beyond thirty days. Even if the benefit of Section 14 of the Limitation Act is given to the respondent, there will still be a delay of 131 days in filing the application. That is beyond the strict timelines prescribed in sub-section (3) read along with the proviso to Section 34 of the 1996 Act. The delay of 131 days cannot be condoned. To do so, as the High Court did, is to breach a clear statutory mandate." This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 23/07/2025 at 12:29:37 FAO (COMM) 181/2025 Page 6 of 67.In view of the above, the present appeal is dismissed, along with the pending applications, if any. SUBRAMONIUM PRASAD, J.HARISH VAIDYANATHAN SHANKAR, J.JULY 17, 2025 Rahul