State of Rajasthan and Another vs M/s. United Construction Company

Hon''ble Ms. Justice Bela M. Trivedi

The appellants-original applicants have filed the present appeal u/s 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ''the said Act'') challenging the order dated 30.4.09 passed by the District & Sessions Judge, Sawai Madhopur (hereinafter referred to as ''the court below)in Arbitration Case No. 144/05, whereby the court below has dismissed the application of the appellants filed u/s 5 of the Limitation Act seeking condonation of delay occurred in filing the application u/s 34 of the said Act, for setting aside the award in question. In the instant case, the award dated 31.3.05 made by the Sole Arbitrator in the Arbitration Proceedings between the parties, was sought to be challenged by the appellants before the court below u/s 34 of the said Act, alongwith the application seeking condonation of delay u/s 5 of the Limitation Act. The learned Dy. Govt. Advocate Mr. Hari Barath for the appellants has submitted that the delay was caused in filing the application for setting aside the award, because of the time spent in following the procedure which the Govt. has to follow for filing the court proceedings. He also submitted that the legal adviser in the concerned department had advised to file appeal against the award passed by the Arbitrator instead of filing the application u/s 34 of the said Act and it was only the Government Advocates Office in the High Court, which advised that the application u/s 34 was required to be filed and, therefore, the delay was caused in filing the application in question, otherwise there was an intention to challenge the award. Pressing into service Section 14 of the Limitation Act and the decision of the Apex Court in case of Consolidated Engg. Enterprises Vs. Principal Secy. Irrigation Deptt. and Others, the learned Dy. Govt. Advocate has submitted that the period spent bonafide for pursuing the legal remedy should be excluded from the period of limitation prescribed u/s 34(3) of the said Act.

The learned Sr. Counsel Mr. R.K. Agrawal for the respondent however relying upon the decisions of the Apex Court in case of Union of India Vs. M/s Popular Construction Co., and in case of Assam Urban Water Supply and Sew. Board Vs. Subash Projects and Marketing Ltd., submitted that Section 5 of the Limitation Act would not be applicable to the proceedings u/s 34 of the said Act for setting aside the award. He also submitted that the case of the appellants does not fall within the five criteria laid down by the Apex Court in case of Consolidated Engineering Enterprises (supra) relied upon by the learned Govt. counsel for the appellants. Mr. Agarwal also submitted that the amount of the award has already been paid to the respondents.

In order to appreciate the rival contentions raised by the learned counsels for the parties, it is necessary to reproduce the relevant provision of Section 34(3) of the said Act, which reads 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 u/s 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 Apex Court in case of Union of India Vs. Popular Construction (supra) has also interpreted the said provision as under :-

As for 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.

The said decision has also been followed by the Apex Court in the latest case in case of Assam Urban Water Supply & Sewerage Board (supra), wherein even one day''s delay was not condoned by the Apex Court. In view of the above stated legal position, there is no shadow of doubt that the provisions contained in Section 5 of the Limitation Act is not applicable to the limitation prescribed u/s 34(3) of the said Act.

There is also no force in the submissions made by the learned Dy. Govt Advocate for the appellants that considering Section 14 of the Limitation Act, the court below should have condoned the delay. So far as Section 14 of the Limitation Act is concerned, it would apply to such case where the party was bonafide prosecuting with due diligence another civil proceeding. In the instant case, there was no proceeding filed by the appellants in any court of law and, therefore, there is no question of excluding any period u/s 14 of the Limitation Act. In the instant case, the delay has been caused in filing the application u/s 34 of the said Act only because of wrong advise given by the concerned law officer of the appellants'' Department, and because of the procedural delay which normally occures in Government cases. Under the circumstances, the court below has rightly dismissed the application of the appellants applicants filed u/s 5 of the Limitation Act. There being no merits in the present appeal, the same deserves to be dismissed and is accordingly dismissed.