Bombay High Court
Bellary Nirmithi Kendra vs Capital Metal Industries on 9 April, 2021
Author: V.G. Bisht
Bench: R.D. Dhanuka, V.G. Bisht
ppn 1 25-ia-2179.20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO. 91 OF 2020
ALONG WITH
INTERIM APPLICATION NO.2179 OF 2020
Bellary Nirmithi Kendra .. Appellant/Applicant
Versus
Capital Metal Industries .. Respondent
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Mr.Karan Bhosale a/w Ms.Neha Bhosale, Ms.Sneha Parekh, Ms.Disha
Parekh i/by M/s.NDB Law for the appellant/applicant.
None for the respondent.
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CORAM : R.D. DHANUKA
V.G. BISHT, JJ.
DATE : 9th April 2021 P.C.:- . By this appeal filed under Section 37 of the Arbitration
and Conciliation Act, 1996, the appellant has impugned the order dated 21st January 2020 passed by the learned Single Judge dismissing the interim application for stay under Section 36 of the said Act.
2. Learned Single Judge noticed that the award in question was passed on 17th November 2017. Copy of the award was received by the appellant on 22nd November 2017. The petition under Section 34 was filed on 28th November 2019.
3. Mr.Bhosale, learned counsel for the appellant states that his client filed Writ Petition bearing No.4523 of 2018 challenging the provision of the Micro Small and Medium Enterprises Development Act, 2006. In the said writ petition, the appellant had also challenged ::: Uploaded on - 09/04/2021 ::: Downloaded on - 06/09/2021 02:27:51 ::: ppn 2 25-ia-2179.20.doc the arbitral award rendered by the arbitral tribunal and also rejecting the application made by the appellant for referring the parties to conciliation.
4. It is submitted by the learned counsel that the said writ petition filed by the appellant came to be dismissed on 17 th September 2019 granting liberty to the appellant to file a petition under Section 34 of the Arbitration and Conciliation Act, 1996. The appellant thereafter filed the arbitration petition on 28th November 2019.
5. The date mentioned aforesaid are admitted. Admittedly signed copy of the award received by the appellant on 17th November 2017. Writ petition was filed by the appellant on 3 rd April 2018. The said writ petition was dismissed as withdrawn with liberty to file a petition under Section 34 of the Arbitration and Conciliation Act, 1996.
6. Admittedly arbitration petition was filed only on 28 th November 2019. Even if the time taken in pursuing the writ petition is excluded, in our view, since the time to file arbitration petition had already expired on 3rd April 2018 itself when the writ petition is filed, even if time is excluded, it would not being the petition within time.
7. Be that as it may, though the liberty was granted to file arbitration petition by an order dated 17 th September 2019, the appellant filed arbitration petition only on 28 th November 2019. Even if the grace period of thirty days is considered as provided under Section 34(3) of the Arbitration and Conciliation Act, 1996, arbitration petition filed on 28th November 2019 would be still barred by limitation prescribed under ::: Uploaded on - 09/04/2021 ::: Downloaded on - 06/09/2021 02:27:51 ::: ppn 3 25-ia-2179.20.doc Section 34 (3) of the Act.
8. We have not gone into the issue whether time taken in pursuing the said writ petition filed on 3 rd April 2018 and withdrawn on 17th September 2019 can be excluded under Section 14 of the Limitation Act, 1963 on the admitted fact itself that the arbitration petition was not filed within the time prescribed.
9. We do not find any infirmity in the order passed by the learned Single Judge in dismissing the petition as well as interim application. Arbitration petition is accordingly dismissed. Interim application for stay, if any, also stands dismissed. There shall be no order as to costs.
V.G. BISHT, J. R.D. DHANUKA, J.
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