Rajasthan High Court - Jaipur
State vs Krishan Kumar Agarwal And Ors on 7 September, 2022
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1471/2001
The State Of Rajasthan Through The Executive Engineer, Public
Works Department Division, Dholpur.
----Appellant
Versus
1. Krishan Kumar Agarwal S/o Late Shri Kailash Chandra
Agarwal, R/o Bhagwati Sadan, Hanuman Tiraya, Dholpur -
328001.
2. Mohan Agarwal S/o Late Shri Kailash Chandra Agarwal,
R/o Bhagwati Sadan, Hanuman Tiraya, Dholpur - 328001.
3. Ramesh Chandra Agarwal S/o Late Shri Kailash Chandra
Agarwal, R/o Bhagwati Sadan, Hanuman Tiraya, Dholpur -
328001.
----Respondents
For Appellant(s) : Ms. Charvi Patni, Adv. On behalf of Mr. Prakhar Gupta, Adv.
For Respondent(s) : Mr. Mohd. Adil, Adv.
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
Judgment
07/09/2022
Instant appeal has been preferred by the appellant-State against the order dated 14.08.2001 passed by District and Sessions Judge, Dholpur by which the objections filed by the appellant-State against the award dated 06.01.2001 have been rejected by treating the same as time barred.
Counsel for the appellant-State submits that a contract for execution of the work of construction of the road from Deholi to Andwapurani was granted to the respondents and an agreement was executed and work order was issued to him on 16.03.1989. As per the terms and conditions of the contract, the work was required to commence from 01.04.1989 and the same was supposed to be completed till 31.03.1990, but the respondents failed to complete the work within the stipulated time and (Downloaded on 25/12/2022 at 07:14:28 AM) (2 of 6) [CMA-1471/2001] requested for extension of time to complete the work. On the request of the contractor, the term was extended till 31.07.1993 but even then the work was not completed and finally the work order was withdrawn from the respondents by the Chief Engineer vide order dated 24.12.1994 by invoking clause 32 of the agreement. Further, to settle the dispute arose between the parties, an arbitrator was appointed who passed the order on 31.10.2000 and subsequently, the award was modified on 06.01.2001 against the award.
Feeling aggrieved, objections were submitted under Section 34 of the Arbitration and Conciliation Act, 1996 (for short, 'Act of 1996') before the Court of District and Sessions Judge on 12.07.2001.
Learned District Judge rejected the same by treating them as time-barred. Counsel submits that the delay in filing the objections was bonafide and was beyond the control of the appellant. Counsel submits that instead of rejecting the objections on a technical ground of delay, the court below could have decided the objections on its merit, hence interference of this Court is warranted.
Per contra, learned counsel for the respondents opposed the arguments raised by the counsel for the appellant and submits that no illegality has been caused by the court below while rejecting the objections of the appellant by treating the same as time barred as the objections were submitted beyond the prescribed period of limitation contained under Section 34 (3) of the Act of 1996.
Heard and considered the rival submissions made on the prayer and gone through the material available on the record. (Downloaded on 25/12/2022 at 07:14:28 AM)
(3 of 6) [CMA-1471/2001] This fact is not in dispute that after hearing the both sides, the arbitrator passed the award on 31.10.2001 and subsequently the modified award was passed on 06.01.2001. This fact is also not in dispute that the objections against the order were submitted by the appellant-State on 12.07.2001 before the Court of District and Sessions Judge, Dholpur. The learned District Judge rejected the objections by treating the same as time barred under Section 34(3) of the Act of 1996.
To appreciate the issue in its correct perspective, it is necessary to take note of the Statutory period of limitation contained under Section 34(3) of the Act of 1996 which is reproduced as under:-
"Section 34(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 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."
The scope available for condonation of delay being self- contained in proviso to Section 34(3) of the Act and the provisions contained under Section 5 of the Limitation Act are not applicable for condonation of delay.
The Hon'ble Apex Court in the case of P. Radha Bai Vs. P. Ashok Kumar (2019) 13 SCC 445 has held as under:-
"33.2. The proviso to Section 34 (3) enables a court to entertain an application to challenge an award after the three months' period is expired, but only within an additional period of thirty dates, "but not thereafter". The use of the phrase "but not thereafter" shows that the 120 days' period (Downloaded on 25/12/2022 at 07:14:28 AM) (4 of 6) [CMA-1471/2001] is the outer boundary for challenging an award. If Section 17 were to be applied, the outer boundary for challenging an award could go beyond 120 days. This Court has consistently taken this view that the words "but not thereafter" in the proviso of Section 34 (3) of the Arbitration Act are of a mandatory nature, and couched in negative terms, which leaves no room for doubt. [State of H.P. vs. Himachal Techno Engineers (2010) 12 SCC 210], Assam Urban Water Water Supply & Sewerage Board vs. Subash Projects & Mktg. Ltd.
(2012) 2 SCC 624 and Anil Kumar Jinabhai Patel vs. Pravinchandra Jinabhai Patel (2018) 15 SCC 178]"
Subsequently, The Hon'ble Apex Court in the case of Simplex Infrastructure Limited Vs. Union of India, reported in (2019) 2 SCC 455 has held as under:-
"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 7, where it held as follows:
"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 (Downloaded on 25/12/2022 at 07:14:28 AM) (5 of 6) [CMA-1471/2001] award is absolute and unextendible by court under Section 5 of the Limitation Act... "
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.
20. The respondent has relied on the decision of this Court in Union of India v Tecco Trichy Engineers & Contractors 9, where this Court had to decide the effective date from which the limitation within the meaning of subsection (3) of Section 34 of the Act shall be calculated. The Chief Project Manager on behalf of the Southern Railway had entered into a contract with a contractor for construction of a railway bridge. Disputes between the parties were referred to arbitration and an award was delivered in the office of the General Manager, Southern Railway. The Chief Engineer preferred an application against the award under Section 34of the 1996 Act before the High Court. The learned Single Judge and the Division Bench of the High Court rejected the application holding it as barred by limitation. This Court reversed the order of the High Court and condoned the application for delay. This Court observed that in huge organisations like the Railways having different divisional heads and various departments within the division, the copy of the award had to be received by the person who had knowledge of the proceedings and who would be the best person to understand and appreciate the award and grounds for challenge. This Court found that all arbitral proceedings for the Railways were being represented by the Chief Engineer and the General Manager had simply referred the matter for arbitration as required under the contract. While condoning the delay of (Downloaded on 25/12/2022 at 07:14:28 AM) (6 of 6) [CMA-1471/2001] three months and 27 days, this Court found that the service of the arbitral award on the General Manager could not be taken to be sufficient notice to constitute the starting point of limitation for the purpose of Section 34(3) of the 1996 Act. The decision in this case has no applicability to the facts of the present case as there is no dispute with respect to the party who received the arbitral award. It is an admitted position that on 27 October 2014, the arbitrator made an award in favour of the appellant and on 31 October 2014, the Union of India received a copy of the award. One of the reasons stated by the respondent for delay in filing an application under Section 34 of the 1996 Act was that the departmental office was located at Port Blair, Andaman and it was a time consuming process for obtaining permission from the circle office at Chennai. Administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory prescribed period under Section 34 of the 1996 Act."
Perusal of the order indicates that when the modified award was passed on 06.01.2001, the belated objections were submitted by the State under Section 34 of the Act of 1996 on 12.07.2001 i.e., after expiry of the period of limitation.
The Court below has taken into consideration the mandate contained under Section 34(3) of the Act of 1996 and has rightly rejected the objections by treating the same as time barred.
I find no force in this appeal and as a consequence thereof, this appeal stands dismissed.
Stay application and all pending application(s), if any, also stand dismissed.
(ANOOP KUMAR DHAND),J PRAVESH/4 (Downloaded on 25/12/2022 at 07:14:28 AM) Powered by TCPDF (www.tcpdf.org)