Calcutta High Court (Appellete Side)
Damodar Valley Corporation vs Sri Sanjay Singh Rathor And Another on 27 June, 2018
1 S/l. 27.06.
4. Bpg.
2018
In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. No.722 of 2018 Damodar Valley Corporation Versus Sri Sanjay Singh Rathor and another Mr. Pratap Chatterjee, Mr. Pradip Tarafdar, Mr. Subir Pal.
...for the petitioner.
Mr. Debnath Ghosh, Mr. S. Dasgupta, Mr. Suvodeep Chakraborty.
...for the opposite parties.
The present application under Article 227 of the Constitution of India is directed against an order whereby the Additional District Judge, Third Court at Alipore, District- South 24 Parganas dismissed an application filed by the petitioner under Section 34 of the Arbitration and Conciliation Act, 1996, as barred by limitation.
Upon query from Court as to appellability of the impugned order, learned senior advocate appearing 2 for the petitioner submits that it is evident from the language of Section 37(1)(c) of the 1996 Act, that an order refusing to set aside an arbitral award under Section 34 of the said Act, as contemplated in Section 37, can only be an order whereby the application under Section 34 was dismissed on merits, and cannot connote an order whereby such application was refused to be entertained merely on the ground of bar of limitation.
In support of such proposition, learned senior advocate appearing for the petitioner cites a judgment reported in (2017) 14 SCC 225 (Union of India vs. M/s. Simplex Infrastructures Ltd.), wherein it was held by the Hon'ble Supreme Court, inter alia, that on a bare reading of Section 37 of the 1996 Act, it was noticed that remedy of appeal had been provided only against an order of setting aside or refusing to set aside an arbitral award under Section 34(1)(c). It was further held that no appeal was provided against an order passed by the Court of competent jurisdiction condoning the delay in filing the petition under Section 34 of the Act as such. It was also held that the Division Bench in the judgment impugned in such case, 3 therefore, rightly noted that remedy of appeal against the order impugned therein of the learned Single Judge was not otherwise available under Section 37 of the Act.
If the context of the cited judgment is looked into, what was being dealt with in the said case was an instance where the delay in filing the application under Section 34 of the 1996 Act was condoned. It is obvious that the effect of condonation of delay would be that the application under Section 34 would be registered and entertained. Such effect could, under no stretch of imagination, amount to either setting aside or refusing to set aside an arbitral award under Section 34, entailing invocation of Section 37.
However, in the instant case, the Additional District Judge specifically dismissed the application under Section 34 of the 1996 Act, albeit as barred by limitation. The language of Section 37(1)(c) of the 1996 Act does not differentiate between a refusal to set aside an arbitral award on merit and a refusal to do so on the ground of bar of limitation. As such, in either case, a refusal to set aside the arbitral award is the ultimate effect of the order. Accordingly, the order impugned in the present application under Article 227 of the 4 Constitution of India amounts to a dismissal of the petitioner's application under Section 34 of the 1996 Act, and as such squarely covered by Section 37(1)(c) of the 1996 Act.
Accordingly, C.O. No.722 of 2018 is dismissed as not entertained, without any order as to costs. Liberty is given to the petitioner to prefer an appropriate challenge before the proper forum as contemplated under Section 37 of the 1996 Act.
Leave is given to learned advocate-on-record for the petitioner to take back the certified copy of the impugned order from the department, upon compliance of due formalities.
(Sabyasachi Bhattacharyya, J. )