Rajasthan High Court - Jodhpur
The Collector, President-E-Mitra ... vs Veermati Software & Tele Comm. & Anr on 3 August, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1855 / 2017
The Collector President-E-Mitra Society, Pali Through Authorized
Representative Devendra Mathur Son of Harinarayan Mathur, Aged
About 55 Years, By Caste Mathur, At Present ACP and DY. Director,
Information Technology and Communication Deptt. Govt. of Raj.,
Pali (Raj.)
----Appellant
Versus
1. Veermati Software and Tele Communication Ltd., Ahmadabad
Through Authorized Representative Senior Software Engineer
Radheshyam Panchariya, Registered Office A-2/3 Arjun Tower,
Ring Road, Cross Satellite Road, Ahmadabad.
2. The Divisional Commissioner, Jodhpur Sole Arbitrator.
----Respondents
_____________________________________________________
For Appellant(s) : Mr. Harish Purohit
For Respondent(s) :
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Judgment 03/08/2017 This appeal is directed against order dated 21.04.2017 passed by District Judge, Pali, whereby, the application filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 ('the Act') has been rejected as barred by limitation.
On dispute arising between the parties, the respondent approached the Arbitrator i.e. the Divisional Commissioner, Jodhpur ('the Commissioner').
The Commissioner by his award dated 24.07.2012 accepted (2 of 4) [CMA-1855/2017] the claim.
The appellant filed a review petition, which came to be accepted by order dated 07.10.2014 and the claim filed by the respondent was rejected.
Feeling aggrieved, the respondent filed an appeal under Section 37 of the Act before the Additional District Judge No. 5, Jodhpur Metro. The said appeal was allowed and the order passed on the review was set aside.
Whereafter the appellant filed objections under Section 34 of the Act before the District Judge, Pali against the original award dated 24.07.2012 on 30.07.2016. Alongwith the objections under Section 34 of the Act, an application under Section 5 of the Limitation Act was also filed seeking condonation of delay.
The District Judge by the impugned order came to the conclusion that the provisions of Limitation Act were not applicable in view of the express provisions of Section 34 (3) of the Act and based on its finding, rejected the application as well as objections.
It is submitted by learned counsel for the appellant that the District Judge was not justified in rejecting the objections by holding them as not maintainable. It is submitted that after the appeal filed by the respondent was accepted by the trial court, the present objections, against the award, were filed and, therefore, the trial court should have exercised its jurisdiction in condoning the delay.
I have considered the submissions made by learned counsel for the appellant and have perused the material available on record.
(3 of 4) [CMA-1855/2017] The facts, as noticed hereinbefore, are not in dispute whereby the appellant was seeking to challenge the award dated 07.10.2014 by filing objections under Section 34 on 30.07.2016.
The provisions of Section 34(3) of the Act alongwith its proviso read as under:-
"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 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."
A bare look at the above provision clearly indicates that the limitation prescribed therein is three months from the date of receipt of the award. The proviso thereafter mandates that if the Court is satisfied about the applicant being prevented by sufficient cause from making the application within three months, the same may be entertained within a further period of thirty days, but not thereafter.
In view of the express bar indicated in the proviso curtailing power to condone delay to the extent of thirty days only and the fact that present application was filed by the appellant after passage of more than 19 months, the said delay could not have been condoned by the trial court.
Hon'ble Supreme Court in Union of India v. Popular Construction Co. : (2001) 8 SCC 470 while interpreting the said proviso to Section 34(3) of the Act, laid down as under:-
"12. As far as the language of Section 34 of the 1996 Act (4 of 4) [CMA-1855/2017] 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 thereafter 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 no thereafter" wholly otiose. No principle of interpretation would justify such a result"
In view of the express bar created by proviso to Section 34(3) of the Act and the judgment of Hon'ble Supreme Court in the case of Popular Construction (supra), no interference is called for in the order impugned. There is no substance in the appeal and the same is, therefore, dismissed.
(ARUN BHANSALI)J. A.K. Chouhan/-149