Supreme Court - Daily Orders
Ramjee Power Construction Ltd. vs Jharkhand Urja Vikas Nigam Limited on 19 September, 2018
Bench: S.A. Bobde, L. Nageswara Rao
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.9774-9775 OF 2018
IN
SPECIAL LEAVE PETITION (C) NOS.1005-1006 OF 2012
RAMJEE POWER CONSTRUCTION LTD. APPELLANT(S)
VERSUS
JHARKHAND URJA VIKAS NIGAM LIMITED & ANR. RESPONDENT(S)
O R D E R
The three awards were passed on 25.11.2007, 14.2.2008 and 29.3.2009 by the learned Arbitrator in favour of the petitioner.
The petitioner had filed a claim against the erstwhile Jharkhand State Electricity Board (for short, the ‘Board’) in respect of allocation project contracts dated 10.2.2005 and 22.4.2006.
Purporting to challenge these awards, the respondents (erstwhile Board) filed an application under section 34 of the Signature Not Verified Arbitration and Conciliation Act, 1996 (for short, the ‘Act’). Digitally signed by SANJAY KUMAR Date: 2018.09.24 16:09:17 IST Reason: This application along with the applications for condonation of delay was filed on 04.11.2010. Admittedly, the application under section 34 of the Act was delayed. As a matter of fact, 2 the delay is of various periods with respect to the chronology of the awards. The application/s against the first award was delayed by 1005 days, against the second award by 610 days and against the third award by 107 days. These applications were allowed by the Sub-Judge I, Ranchi. The High Court upheld the order of learned Sub-Judge I, Ranchi, condoning the delay in filing application under section 34 of the Act. The review petition filed by the petitioner was also rejected. Hence, these special leave petitions.
Leave granted.
The application under section 34 of the Act can only be filed within a time stipulated in section 34 of the Act which reads as follows :
“34. Application for setting aside arbitral award. – (1) 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 subsection (3).
(2) An arbitral award may be set aside by the court only if-
(a) The party making the application furnishes proof that-
(i) A party was under some incapacity, or
(ii) The arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration:
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or
(v) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in 3 conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) The court finds that-
(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) The arbitral award is in conflict with the public policy of India.
[Explanation 1.- For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if, -
(i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or
(ii) it is in contravention with the fundamental policy of Indian law; or
(iii) it is conflict with the most basic notions of morality or justice.
Explanation 2. - For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.] [(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the court, if the court finds that the award is vitiated by patent illegality appearing on the face of the award :
Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by re- appreciation of evidence.] (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 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.
(4) On receipt of an application under sub-section (1), the court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.4
(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.
(6) An application under this section shall be disposed of expeditiously, and in any event, within a period of one year from the date on which the notice referred to in sub-section (5) is served upon the other party” If the application under section 34 of the Act is not filed within the stipulated time of three months, it can be filed within further 30 days vide the proviso.
In these cases clearly there was no scope for having the delay condoned because the application under section 34 of the Act was well beyond even the extended period of 30 days.
The High Court appears to have fully cognizant of this fact and has even observed that “the time limit prescribed under section 34 of the Act to challenge the award is no doubt absolute and unextendable by the court under section 5 of the Limitation Act.” Yet observing that this is an exceptional case, it has condoned the delay because the officers of the erstwhile Board adopted a delaying tactics in various proceedings with an intention to favour the appellant.
Assuming that the High Court was justified in making these observations about the intention of the officers, we are clearly of the view that it had no power to condone the delay in filing the application under section 34 of the Act beyond the period prescribed by the Parliament. It was not permissible for the High Court to open a window in the wall of limitation put up by Parliament.
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We accordingly allow these appeals, set aside the impugned orders passed by the High Court and dismiss the application dated 4.11.2010 filed under section 34 by the respondents. The respondents may pursue such remedies in respect of the loss caused to them as may be advised.
....................J [S. A. BOBDE] ....................J [L. NAGESWARA RAO] New Delhi;
September 19, 2018.
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ITEM NO.14 COURT NO.6 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).1005-1006/2012
(Arising out of impugned final judgment and order dated 11-07-2011 in Civil Revision No.2/2011 and order dated 09-08-2011 in Civil Review No.67/2011 in Civil Revision No.2/2011 passed by the High Court Of Jharkhand At Ranchi) RAMJEE POWER CONSTRUCTION LTD. Petitioner(s) VERSUS JHARKHAND URJA VIKAS NIGAM LIMITED & ANR. Respondent(s) (IA No.90223/2017-PERMISSION TO FILE ADDITIONAL DOCUMENTS) Date : 19-09-2018 These matters were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE S.A. BOBDE HON'BLE MR. JUSTICE L. NAGESWARA RAO For Petitioner(s) Ms. Meenakshi Arora, Sr. Adv.
Mr. Indranil Ghosh, Adv.
Mr. Pandey Neeraj Rai, Adv.
Mr. Kunal Singh, Adv.
Mr. Debabrata Das, Adv.
Mr. Palzer Moktan, Adv.
Ms. Dharitry Phookan, AOR For Respondent(s) Mr. R.P. Bhatt, Sr. Adv.
Mr. Manish Kumar Saran, AOR Mr. Abhas Parimal, Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeals are allowed in terms of the signed order.
Pending interlocutory applications, if any, stand disposed of.
(SANJAY KUMAR-II) (INDU KUMARI POKHRIYAL) COURT MASTER (SH) ASSISTANT REGISTRAR (Signed Order is placed on the file)