Delhi District Court
Delhi Jal Board vs M/S Digvijay Sanitation on 2 February, 2023
IN THE COURT OF SH. ANURAG SAIN,
DISTRICT JUDGE, (COMMERCIAL COURT)-01,
PATIALA HOUSE COURT, NEW DELHI
OMP (COMM) No.159/2022
Delhi Jal Board
Through its Chief Officer,
Varunalaya, Phase-II,
Karol Bagh, New Delhi
Represented through
The Executive Engineer @ Division-IV,
Delhi Jal Board, Jal Sadan, Lajpat Nagar,
New Delhi
.....Petitioner
vs.
1. M/s Digvijay Sanitation
Through its Partner Sh. Vijay Gulati
Having its office at
12/49 Tilak Nagar,
New Delhi-110018
2. Sh. O.P. Gupta,
District and Sessions Judge (Retd.)
Sole Arbitrator
At Delhi International Arbitration Centre (DIAC)
....Respondents
Appearances : Sh. Amit Sharma and Ms. Anuja Shukla, Ld.
Counsels for the petitioner alongwith
Sh.Ibrahim Khan, AE from Delhi Jal Board.
Sh. Vivekanand and Sh. Abhishek Semwal,
Ld. Counsels for the respondent no.1
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JUDGMENT
1. The present objection petition under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the Act') has been filed by the petitioner against the arbitral award dated 06.11.2019, passed by ld. Arbitrator in Petition No. 149/2018 on the grounds mentioned in the petition.
2. Along with the petition, an application under Section 34 (3) of Arbitration and Conciliation Act 1996 read with Section 151 CPC has also been filed on behalf of the petitioner seeking condonation of delay in filing the present petition.
3. It is asserted in the application that the impugned award was received to the petitioner on 06.12.2019 and they have preferred the petition through e-filing on 21.06.2021, but the same was put under objections and thereafter the same was again filed on 04.08.2021 after removal of objections. It is further claimed that the three months expired on 06.03.2020 and if the thirty days permitted under 34 (3) of the Act, then the same comes out to 05.04.2020. It is averred that the petitioner/applicant being a Government setup took time in taking decision to file objections and for that period three Delhi Jal Board Vs. M/s Digvijay Sanitation and Anr. Page No.2 of 14 months and few days in addition to it were lapsed. Thereafter in the month of March 2020, the lockdown was imposed due to COVID-19. It is also averred that the Hon'ble Supreme Court of India Suo Motto took the cognizance and extended the limitation period time to time and vide judgment dated 23.09.2021, it was pronounced that in cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. It is averred that keeping in view the limitation extension granted by the Hon'ble Supreme Court, the instant petition was filed before expiry of 30 days as provided under clause (3) of Section 34 of the Act but beyond three months. Thus, it is prayed that the delay of 9 days be condoned, which neither intentional nor deliberate but was occurred due to the fact that the applicant is a Government Organization and before taking any decision, the concerned officials have to take approval and consent from inter-se wings including the legal counsel.
4. On behalf of respondent a detailed reply has been filed to the taking preliminary objections that the petition is barred by time and accordingly liable to be dismissed outrightly. It is also stated that the averments made in the application are misleading, misconceived, false and frivolous and as such Delhi Jal Board Vs. M/s Digvijay Sanitation and Anr. Page No.3 of 14 contrary to the well settled provisions of Section 34 (3) of the Act as well as contrary to its own record. It is averred that it is an admitted fact and also evident from the document filed by the petitioner alongwith petition i.e. procedural order dated 06.11.2019 passed by ld. Arbitrator showing that the arbitral award dated 06.11.2019 supplied to the applicant/petition on the very same day when counsel for petitioner and officer-in-charge was present before ld. Sole Arbitrator. Therefore, the period of limitation for filing of the present petition would commence from 06.11.2019 and not from 06.12.2019. It is claimed that since the applicant/petitioner has received the arbitral award on 06.11.2019, the prescribed period of limitation of 3 months have commenced from 06.11.2019 and expired on 06.02.2020 and infact the 30 days time prescribed under Section 34 of the Act, also expired on 06.03.2020 and not on 05.04.2020 and the present petition filed on 04.08.2021 is filed almost after a delay of 516 days. It is also averred by the respondent that execution of present award is pending before Ld. District Judge, Commercial Court-02, South East District, Saket Courts, wherein the present petitioner had filed a reply dated 22.12.2020 with affidavit stating that the payment of award is being processed and will be paid to the respondent no.1. It is averred that the present case does not fall within the purview of the orders passed by Hon'ble Supreme Court in Suo Moto W.P. (Civil) 3/2020 as the period between 15.03.2020 till 28.02.2022 Delhi Jal Board Vs. M/s Digvijay Sanitation and Anr. Page No.4 of 14 was exempted for the purposes of calculating the period of limitation, as the period for filing the petition was expired on 06.03.2020.
5. Ld. Counsel for respondent in support of his arguments has relied upon the following judgments:
a) M/s Tanaria Infrastructure Pvt. Ltd. Vs. NHAI, 2018 SCC online 11198;
b) DDA vs. M/s Durga Construction Co. (2013) 139 DRJ 133l;
c) Govt. of NCT of Delhi Vs. YD Builders & Hotels Pvt. Ltd. (2016) 234 DLT 577;
d) ONGC Ltd. Vs. Joint Venture of Sairama Engineering Enterprises and Megha Engineering and Infrastructure Ltd., 2019 SCC Online 10456;
e) Union of India Vs. M/s JCB India Ltd. (2019) 264 DLT 371;
f) Office of the Chief Post Master General and Ors. Vs. Living Media India Ltd. and Ors. (2012) 3 SCC 563;
g) Haji Banda Hasan Vs. M/s Gupta and Gupta Pvt. Ltd. (2019) 263 DLT 137;
h) Union of India Vs. Sunrise Enterprises, Panipat, 2012 SCC online Del 654;
i) Sravanthi Infratech P. Ltd. Vs. Greens Power Equipment (China) Co.Ltd.
2016 SCC Online Del 8848;
j) Bharat Sanchar Nigam Ltd. Vs. Haryana Telecom Ltd., (2010) 172 DLT 280 (Del) (DB)
k) Gautam Associates vs. Food Corporation of India (2009) 111 DRJ 744; Delhi Jal Board Vs. M/s Digvijay Sanitation and Anr. Page No.5 of 14
6. I have given due consideration to the facts and pleadings of the case, submissions put forth by counsels for the petitioner as well as respondent and the relevant legal position.
7. The relevant provisions of Section 34(3) of the Arbitration and Conciliation Act reads as under:
"34.Application for setting aside arbitral award-
(1)................
(2).............
(3) An application for setting aside may not be made after three months have elapsed from the date on which they 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.
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8. In the judgment, Union of India v. Popular Construction Co. (2001) 8 SCC 470, it has been held that:
"12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' 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 application to set aside the Award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result.
14. Here the history and scheme of the 1996 Act support the conclusion that the time limit prescribed under Section 34 to challenge an Award is absolute and unextendable by Court under Section 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as one of its main objectives the need "to minimise the supervisory role of courts in the arbitral process". This objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms :
Delhi Jal Board Vs. M/s Digvijay Sanitation and Anr. Page No.7 of 14 "5. Extent of judicial intervention. -
Notwithstanding anything contained in any other law for the time being in force, in matter governed by this Part, no judicial authority shall intervene except where so provided in this Part."
16. Furthermore, section 34(1) itself provides that 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. 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 application "in accordance with" that sub section. Consequently by virtue of Section 34 (1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that "where the time for making an application to set aside the arbitral award under Section 34 has expired.......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 Delhi Jal Board Vs. M/s Digvijay Sanitation and Anr. Page No.8 of 14 set aside the award expired, the court was required to "proceed to pronounce judgment according to the award and upon (he judgment so pronounced a decree shall follow". 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 curtailment of the court's powers by the exclusion of the operation of Section 5 of the Limitation Act."
9. In the judgment titled as Simplex Infrastructure Ltd. Vs. Union of India (2019) 2 SCC 455, Apex Court held that:
9. Section 34 provides that 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). Sub-section (2) relates to the grounds for setting aside an award. An application filed beyond the period mentioned in sub-section 3 of Section 34, would not be an application "in accordance with" that sub-section. By virtue of Section 34(3), recourse to the court against an arbitral award cannot be beyond the period prescribed. Sub-section (3) of Section 34, read with the proviso, makes it abundantly clear that the application Delhi Jal Board Vs. M/s Digvijay Sanitation and Anr. Page No.9 of 14 for setting aside the award on one of the grounds mentioned in sub-section (2) will have to be made within a period of three months from the date on which the party making that application receives the arbitral award. The proviso allows this period to be further extended by another period of thirty days on sufficient cause being shown by the party for filing an application. The intent of the legislature is evinced by the use of the words "but not thereafter" in the proviso. These words make it abundantly clear that as far as the limitation for filing an application for setting aside an arbitral award is concerned, the statutory period prescribed is three months which is extendable by another period of upto thirty days (and no more) subject to the satisfaction of the court that sufficient reasons were provided for the delay.
11. Section 5 of the Limitation Act, 1963 deals with the extension of the prescribed period for any appeal or application subject to the satisfaction of the court that the appellant or applicant had sufficient cause for not preferring the appeal or making the application within the prescribed period. Section 5 of the Limitation Act, 1963 has no application to an application challenging an arbitral award under Section 34 of the 1996 Act. This has been settled by this Court in its decision in Union of India v Popular Construction Company.
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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".
10. In the case at hand, the arbitral award was passed on 06.11.2019. It has been recorded in the copy of arbitration proceedings dated 06.11.2019 that copy of the this award has been supplied to both the parties. The objection petition should have been filed within a period of three months, or on showing sufficient cause for the delay, within a further period of 30 days, but not thereafter.
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11. It is the case of the petitioner that he has filed the petition through e- filing vide filing no. EC-DLWT01-00163-2021 on 21.06.2021 and is beyond limitation. The main ground taken by the petitioner to the effect that the copy of the impugned award was received by it on 06.12.2019.
12. Perusal of the arbitral proceedings dated 06.11.2019 recorded by ld. Sole Arbitrator reads as under:
"Arbitration proceedings dated 06.11.2019"
Present :
For the claimant : Mr. Vijay Gulati, Partner For the Respondent: Ms. Samreen, Advocate for Ms. Sakshi Popli, Advocate for Mr. Alok Chabbra, AE (C) Order Award announced separately.
Copies supplied to both the parties.
Centre to collect the deficit Stamp duty"
13. Perusal of arbitration proceedings dated 06.11.2019 reveals, which was recorded in the presence of both the parties, that copy of award has been supplied to petitioner on that very date i.e. 06.11.2019. Thus the statement of petitioner that he has received the copy of award on 06.12.2019 is a false Delhi Jal Board Vs. M/s Digvijay Sanitation and Anr. Page No.12 of 14 statement and without any basis. The prescribed period of limitation of three months for filing the present petition commenced on 06.11.2019 and the same was expired on 06.02.2020. Even otherwise, if the benefit of Section 34 (3) of the Act is also to be provided to the petitioner, the period for filing of objection petition was expired on 06.03.2020 and accordingly, the present petition cannot be entertained being barred by limitation and deserves to be dismissed.
14. It is also argued by ld. Counsel for the petitioner that keeping in view the limitation extension granted by the Hon'ble Supreme Court, the instant petition was filed before expiry of 30 days as provided under clause (3) of Section 34 of the Act but beyond three months. Hon'ble Supreme Court, vide its judgment Suo Motu Writ Petition (C) No. 3 of 2020, [(2022) 3 SCC 117], period from 15.03.2020 to 28.02.2022 has been directed to be excluded for the purposes of limitation. This judgment is not applicable to the present case as the limitation for filing the present petition has already been expired firstly on 06.02.2020 and if after considering the further period of 30 days as contemplated under Section 34 (3) of the Act, then on or before 06.03.2020 and as the Suo Motu Writ Petition (C) No. 3 of 2020, (Supra) is not applicable to the facts of the present case. Accordingly, the petitioner is not entitled for the benefit granted by Hon'ble Supreme court vide its aforesaid judgment. Delhi Jal Board Vs. M/s Digvijay Sanitation and Anr. Page No.13 of 14
15. In view of above discussion, the present petition cannot be entertained being barred by limitation. Hence the application seeking condonation of delay as well as the petition, both are hereby dismissed.
16. The parties are left to bear their own costs.
17. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT on 2nd February, 2023.
ANURAG SAIN District Judge (Commercial Court)-01 Patiala House Court, New Delhi.
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