Mr. Om Prakash, SPC with Mr. Nitish Pande and Ms. Swati through Mishra, Advocates v. J M BAXI PORTS & LOGISTICS LIMITED

CORAM: HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD HON'BLE MR. JUSTICE HARISH VAIDYANATHAN SHANKAR JUDGMENT (Oral) HARISH VAIDYANATHAN SHANKAR, J. 1. The present appeal under Section 37 of the Arbitration & Conciliation Act1, 1996, challenges the Order dated 09.07.20182 passed by the Ld. Single Judge of this Court in O.M.P.(Comm.) No. 267/2018 titled as “Union of India vs. International Cargo Terminal and Rail Infrastructure Pvt. Ltd.”. 2. In the present appeal, vide order dated 04.05.2022, ‘International Cargo Terminal and Rail Infrastructure Pvt. Ltd.’ was substituted by ‘J M Baxi Ports & Logistics Limited’, as an Appellant. 3. By the impugned Order, the Ld. Single Judge, relying upon the judgment of the Hon‟ble Supreme Court in Anil Kumar Jinabhai 1A & C Act 2 Impugned Order Signature Not Verified FAO(OS) (COMM) 203/2018 Page 1 of 9 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:06.05.2025 10:58:23 Patel (D) thr. Lrs. V. Pravindchandra Jinabhai Patel and Ors.3, dismissed the Section 34 challenge to the arbitral award dated

30.05.2016 on the ground that the same is barred by limitation. 4. The Award dated 30.05.2016 was challenged on 23.08.2016 by a Petition bearing No. Arbitration 17341/2016, under Section 34 of the A & C Act before the Court of Additional District Judge, Patiala House Courts, New Delhi. 5. Admittedly, the Appellant received a copy of the Award dated

30.05.2016 on the very same day, meaning thereby that limitation would commence from 31.05.2016, under Section 34(3) of the A & C Act. 6. The Respondent herein, in the proceedings before the Patiala House Courts, challenged the maintainability of the Petition under Section 34 on the ground of pecuniary jurisdiction, which was acceded to by the Ld. Additional District Judge vide Order dated 24.02.2018, resulting in the return of the Petition to be filed before the appropriate Forum/Court. 7. It would appear that the Appellant, instead of re-filing the Petition before the High Court, being the appropriate Forum, chose to draft a fresh Petition and filed the same on 11.05.2018, averring it is within limitation. 8. The Ld. Single Judge has in the impugned Order also noted that though the Petition under Section 34 was ordered to be returned by the Order dated 24.02.2018, the Appellant applied for a copy of the order and return of the plaint only on 01.06.2018. 9. Section 14 of the Limitation Act reads as follows: 32018 SCC OnLine SC 276 Signature Not Verified FAO(OS) (COMM) 203/2018 Page 2 of 9 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:06.05.2025 10:58:23 “14. Exclusion of time of proceeding bona fide in court without jurisdiction. — (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation. —For the purposes of this section, — (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.”

10. Section 34(3) of the A & C Act reads as follows: - “34. Application for setting aside arbitral award. — *** (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 Signature Not Verified FAO(OS) (COMM) 203/2018 Page 3 of 9 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:06.05.2025 10:58:23 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.”

11. In order to avail the benefit of exclusion of the time period in calculating limitation under Section 14 of the Limitation Act, it is incumbent upon the party to show that the earlier proceedings were prosecuted with due diligence and in good faith before a Court which was ultimately found to be lacking jurisdiction. 12. In the present case, assuming bonafide in favor of the Appellant, the period which would stand excluded from computation of the limitation period, would be from the date of filing of the petition before the Patiala House Courts, i.e. 23.08.2016 to the return of the petition vide Order dated 24.02.2018. 13. The limitation for filing the Section 34 Petition had commenced on 31.05.2016. The Appellant had, therefore, in the first instance, filed the Petition before Patiala House Courts, within the prescribed period of limitation. 14. After excluding the period between 23.08.2016 to 24.02.2018, the Appellant would be left with a period of 35 days, within which it could have filed the Petition in order to meet the statutorily maximum prescribed period under Section 34(3) of the A & C Act. 15. As already mentioned, the Section 34 Petition came to be filed before this Hon‟ble Court only on 11.05.2018, which was 76 days after the date of return of the Petition by the Additional District Judge, Patiala House Courts. It is, therefore, evident that the Petition is barred by limitation in view of the judgments of the Hon‟ble Supreme Court in Anil Kumar Jinabhai Patel (D) thr. Lrs. (supra), as well as in P. Signature Not Verified FAO(OS) (COMM) 203/2018 Page 4 of 9 Digitally Signed By:HARVINDER KAUR BHATIA Signing Date:06.05.2025 10:58:23 Radha Bai v. P. Ashok Kumar4, Assam Urban Water Supply & Sewerage Board v. Subash Projects & Marketing Ltd.5, State of Himachal Pradesh v. Himachal Techno Engineers & Anr6and Dakshin Haryana Bijli Vitran Nigam Ltd. v. Navigant Technologies (P) Ltd7. 16. For the sake of reference, the relevant extract of the judgment in P. Radha Bai (supra) is as follows: “32.1. Section 34 is the only remedy for challenging an award passed under Part I of the Arbitration Act. Section 34(3) is a limitation provision, which is inbuilt into the remedy provision. One does not have to look at the Limitation Act or any other provision for identifying the limitation period for challenging an award passed under Part I of the Arbitration Act. 32.2. The time-limit for commencement of limitation period is also provided in Section 34(3) i.e. the time from which a party making an application “had received the arbitral award” or disposal of a request under Section 33 for corrections and interpretation of the award. 32.3. Section 34(3) prohibits the filing of an application for setting aside of an award after three months have elapsed from the date of receipt of award or disposal of a request under Section 33. Section 34(3) uses the phrase “an application for setting aside may not be made after three months have elapsed”. The phrase “may not be made” is from the Uncitral Model Law [“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 award or, if a request had been made under Article 33, from the date on which that request had been disposed of by the Arbitral Tribunal”.] and has been understood to mean “cannot be made”. The High Court of Singapore in ABC Co. Ltd. v. XYZ Co. Ltd. [ABC Co. Ltd. v. XYZ Co. Ltd., 2003 SGHC 107] held: “The starting point of this discussion must be the model law itself. On the aspect of time, Article 34(3) is brief. All it says is that the application may not be made after the lapse of three months from a specified date. Although the words used are „may not‟, these must be interpreted as „cannot‟ as it is clear that the intention is to limit the time during