Writ Petition No. 6032 of 2023 · High Court
Case Details
Neutral Citation No. - 2024:AHC:118563-DB Chief Justice's Court Case :- APPEAL UNDER SECTION 37 OF ARBITRATION AND CONCILIATION ACT 1996 DEFECTIVE No. - 204 of 2024 Appellant :- The Chairman Up Jal Nigam Rural And 5 Others Respondent :- Ms Jai Ambe Construction Counsel for Appellant :- Pranav Mishra Counsel for Respondent :- Ravindra Narayan Singh Hon'ble Arun Bhansali,Chief Justice Hon'ble Vikas Budhwar,J. 1. This appeal under Section 37 of Arbitration And Conciliation Act, 1996 (in short 'the Act, 1996') is directed against the order dated 06.05.2024 passed by Commercial Court, Varanasi whereby the application filed by the appellants under Section 5 read with Section 14 of the Limitation Act, 1963 (in short 'the Act, 1963') seeking condonation of delay in filing the application under Section 34 of the Act, 1996 has been rejected and consequently the application under Section 34 of the Act has also been rejected. 2. In the present case the arbitration award was passed by the sole Arbitrator on 18.11.2021 and the same was served upon the appellants; on 03.02.2022, the appellants filed an application under Section 34 of the Act, 1996 before the District Judge, Azamgarh; on 28.03.2023, order was passed by the District Judge, Azamgarh returning the application of the appellants filed under Section 34 of the Act with liberty to approach the appropriate Court. 3. Feeling aggrieved of the order dated 28.03.2023, on 12.05.2023 Writ Petition No.6032 of 2023 was filed before this Court, which came to be rejected on 28.02.2024. Whereafter, on 01.03.2024 the present proceedings under Section 34 of the Act, 1996 were filed before the Commercial Court, Varanasi along with an application under Section 5 and 14 of the Act, 1963. The application was contested by the respondents. Learned Commercial Court, Varanasi vide its impugned order came to the conclusion that the application filed under Section 5 of the Limitation Act seeking condonation of delay beyond the period prescribed under Section 34(3) of the Act was not maintainable and as the application was filed after 24 months, on account of said delay, the application was liable to be dismissed and consequently dismissed the application seeking condonation of delay as well as the application under Section 34 of the Act was also dismissed.
Legal Reasoning
4. It is submitted by learned counsel for the appellants that the application was filed under Section 5 and 14 of the Act and, therefore, it cannot be said that the application was barred by 24 months and consequently the order passed by the Commercial Court deserves to be set aside. It was submitted that under wrong legal advice, the proceedings were initiated before the District Judge, Azamgarh against the award and once the same was returned, challenge was laid to the said order before this Court by filing writ petition and as soon as the writ petition was rejected on 28.02.2024, the proceedings before the Commercial Court were filed on 01.03.2024 and, therefore, the order impugned deserves to be set aside. 5. Learned counsel for the respondent supported the order impugned. Submissions have been made that even if the period which was spent in proceedings before the District Judge, Azamgarh and before this Court are excluded, still the proceedings under Section 34 of the Act were filed beyond the limitation prescribed under Section 34(3) of the Act and as such the appeal deserves to be dismissed. 6. We have considered the submissions made by learned counsel for the parties and have perused the material available on record. 7. Though it is true that the application under Section 5 and 14 of the Act, 1963 was filed seeking condonation of delay and exclusion of time for prosecuting the matter before the wrong forum, however, the Commercial Court found the application as barred by 24 months, which may not be correct. However, as per the dates noticed herein before, even if the period of prosecuting the proceedings before the District Judge, Azamgarh and this Court are excluded, application under Section 34 of the Act was barred by 44 days. Provisions of Section 34(3) of the Act and Proviso thereof clearly provides that the proceedings under Section 34 of the Act have to be initiated within a period of three months and an application can be entertained within a further period of 30 days but not thereafter.
Decision
8. While dismissing the writ petition on 28.02.2024, learned Single Judge came to the following conclusion: "10. In the present case, after the return of the application filed by the petitioners under Section 34 of the Act on March 28, 2023, the petitioners chose not to file any application before the Commercial Court, Varanasi. In fact, after an inordinate delay of 44 days, the petitioners chose to file the present writ petition. 11. It is to be noted that had the petitioners filed the present writ petition within 37 days of the order passed on March 28, 2023, this Court would have granted the relief to the petitioners to file appropriate application before the Commercial Court and directed the Commercial Court to grant the petitioners benefit of Section 14 of the Limitation Act. However, the present writ petition has been filed after 44 days, and accordingly, this Court has no power to condone the delay in filing of the application under Section 34 of the Act. " 9. The said observations/findings of the learned Single Judge has attained finality and is factually and legally correct and, therefore, once the application under Section 34 of the Act, even after excluding the time under Section 14 of the Limitation Act, was barred by 44 days, the said delay was not condonable. Law in this regard has been repeatedly clarified by Hon'ble Supreme Court in Simplex Infrastructure Limited Vs. Union of India: (2019) 2 SCC 455, State of Maharashtra And Another Vs. Ramdas Construction Company And Another: (2021) 4 SCC 629 & Mahindra And Mahindra Financial Services Limited Vs. Maheshbhai Tinabhai Rathod And Others: (2022) 4 SCC 162. 10. In view of above discussion, no case for interference is made out in the present appeal and the same is, therefore, dismissed. Order Date :- 22.7.2024 SK (Vikas Budhwar, J) (Arun Bhansali, CJ)