Limited, Doorsanchar Bhawan, Lal Kothi, Jaipur. vs M/s Vijay Electrical, Through Partner Sh. Pankaj Kumar Siyal,

: Mr.Jitendra Sharma, Adv. For Respondent(s) : Mr.O.P. Mishra, Adv. HON'BLE MR. JUSTICE AVNEESH JHINGAN HON'BLE MR. JUSTICE BHUWAN GOYAL 30/04/2025 Order

1. This appeal is filed against the order dated 22.10.2024 passed by the Commercial Court No.3, Jaipur Metro-II dismissing the petition under Section 34 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’) on the ground of limitation. The ad- mitted facts that the award dated 10.06.2018 released on

20.09.2022 was served upon the appellant on 27.09.2022. The petition under Section 34 of the Act was filed on 08.02.2023.

2. Section 34 (3) of the Act is reproduced:- “(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 [2025:RJ-JP:18211-DB] (2 of 4) [CMA-4955/2024] 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 en- tertain the application within a further pe- riod of thirty days, but not thereafter.”

3. The limitation for filing the petition under Section 34 of the Act is of three months from the date of receipt of arbitral award. The proviso empowers the court to condone the delay upto thirty days.

4. In the present case, it is an admitted fact that the petition was filed beyond one hundred and twenty days of receipt of arbi- tral award. The Supreme Court in Union of India (UOI) Vs. Popular Construction Co. reported in [(2001)8 SCC 470] while adjudicating the issue regarding applicability of Section 5 of 1963 Act for condonation of delay in filing an application under Section 34(3) of the Arbitration and Conciliation Act, 1996, considering its earlier decision in Vidyacharan Shukla Vs. Khubchand Baghel reported in [AIR 1964 SC 1099], Hukumdev Narain Yadav Vs. Lalit Narain Mishra reported in [(1974)2 SCC 133] held:- “12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not there- after' used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an ap- plication to set aside the award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpre- tation would justify such a result.

16. Furthermore, section 34(1) itself provides that re- course to a court against an arbitral award may be made only by an application for setting aside such [2025:RJ-JP:18211-DB] (3 of 4) [CMA-4955/2024] award "in accordance with" sub Section 2 and sub Section 3. Sub Section 2 relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, sub-section (3) would not be an appli- cation "in accordance with" that sub section. Conse- quently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made be- yond the period prescribed. The importance of the pe- riod fixed under Section 34 is emphasised by the pro- visions of Section 36 which provide that "where the time for making an application to set aside the arbitral award under Section 34 has ex- pired...the award shall be enforced and the Code of Civil Procedure 1908 in the same manner as if it were a decree of a court". This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to "proceed to pronounce judgment accord- ing to the award and upon the judgment so pro- nounced a decree shall follow" (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the Court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtail- ment of the Court's powers by the exclusion of the op- eration of Section 5 of the Limitation Act.” A three Judge Bench of the Supreme Court in Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department and Others reported in [(2008)7 SCC 169] again considering Section 34(3) of the Act of 1996 after referring to the relevant provisions observed as under :- “When any special statute prescribes certain period of limitation as well as provision for ex- tension upto specified time limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limita- tion Act shall stand excluded. As the intention of the legislature in enacting sub-section (3) of Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further ex- tended on sufficient cause being shown by an- other period of 30 days but not thereafter, pro- [2025:RJ-JP:18211-DB] (4 of 4) [CMA-4955/2024] visions of Section 5 of the Limitation Act would not be applicable because the applicability of Section 5 of the Limitation Act stands excluded because of the provisions of Section 29(2) of the Limitation Act. ”

5. In view of well settled position of law, the Commercial Court having no power to condone the delay beyond thirty days, rightly dismissed the petition under Section 34 of the Act.

6. No case is made out for interference, the appeal is dis- missed. (BHUWAN GOYAL), J (AVNEESH JHINGAN), J Himanshu Soni/49