Saini Construction Company vs Union of India (UOI) and Others

Mahesh Grover, J.—This petition is directed against the order dated 3.6.2009.

An arbitral award came into existence on 6.1.2010. Respondents No. 1 and 2 filed an application for making the said award a rule of the court and the proceedings continued before the said court for a considerable time before it transpired that the award under Arbitration Act, 1940 could not be enforced by making it a rule of the court and that the only remedy available was under the provisions of Section 34 of the Arbitration and Conciliation Act, 1996. The petitioner and respondents thereafter withdraw from the proceedings and took recourse to the provisions of Section 34 of the Act to enforce the award but in doing so a considerable delay had been caused and therefore the proceedings were accompanied by an application u/s 5 of the Limitation Act which was declined.

Learned Counsel for the petitioner contended that even though Section 34 of the Act provides for filing of an application within three months which period can be extended only by 30 days according to Section 34(3) of the Act, yet the courts were not precluded from entertaining such an application even after the period of limitation is over as proceedings u/s 34 have not been excluded from the purview of the provisions of the Limitation Act. In support of his contention he has placed reliance upon Union of India (UOI) Vs. Shring Construction Company Private Limited, .

The Counsel for the respondents contended that the application for condonation of delay was filed u/s 5 of the Limitation Act and the petitioner never invoked the provisions of Section 14(3) of the Limitation Act, and hence there is no infirmity in the impugned order.

I have heard the Counsel for the parties.

The Supreme Court in M/s Shring Construction Co. Pvt. Ltd.(supra) has observed as follows :

Mr. B. Dutta, learned Additional Solicitor General for the appellant submitted that it is true that Section 5 of the Limitation Act will have no application in these proceedings because period of limitation has already been prescribed u/s 34(3) of the Act but Section 14 of the Limitation Act has not been excluded from its ambit. It is pointed out that the impugned award was challenged by filing a writ petition before the High Court but later on it was found that the writ petition was not maintainable and accordingly, after dismissal of the writ petition the present application was filed u/s 34 of the Act along with application u/s 5 of the Limitation Act. It appears that the question with regard to applicability of Section 14 of the Limitation Act was not examined by the High Court as well as the District Judge. In fact, it was bona fide error on the part of the Union of India to have approached the High Court. It was a misplaced impression that since the High Court has appointed the arbitrator, therefore, its award can be challenged before the High Court only. This Court recently in the case of State of Goa Vs. Western Builders, has taken a view that applicability of Section 14 of the Limitation Act is not excluded from the Act of 1996. This Court in Western Builders (supra) has observed as follows:

By virtue of Section 43 of the Act of 1996, the Limitation Act applies to the proceedings under the Act of 1996 and the provisions of the Limitation Act can only stand excluded to the extent wherever different period has been prescribed under the Act of 1996. Since there is no prohibition provided u/s 34, there is no reason why Section 14 of the Limitation Act should not be read in the Act of 1996, which will advance the cause of justice.'' Therefore, Mr. Dutta, learned ASG submitted that the application filed by the appellant for condonation of delay contending that the appellant was prosecuting remedy before the High Court by filing writ petition should have been considered and delay should have been condoned. This question seems not to have been examined by the trial court as well as by the High Court. In view of the decision in the Western Builders (supra) we think it just and proper to remit this matter back to the trial court to decide whether the application for setting aside the award u/s 34 of the Act filed by the appellant could be considered to be within the period of limitation i.e. after deducting the period spent by the appellant in prosecuting the remedy before the High Court.

From the above it is clear that the court had the power to condone the delay.

The next question to be seen is as to whether the rights of the petitioner could be defeated merely because the application u/s 5 of the Limitation Act was filed and not the one u/s 14(3).

I am of the opinion that the substantial rights of a person should not be a hostage to technicalities of law and hence the contention of the Counsel for the respondents has to be repelled.

The revision petition is allowed, impugned order is set aside and the matter is remitted back for decision afresh. The application u/s 5 of the Limitation Act shall be treated to be an application u/s 14(3) of the Act.