The Executive Engineer (C) Dr-X, Delhi Jal Board vs M/s Arun Kumar

Reva Khetrapal, J.

IA No. 6393/2012 (filed by the petitioner for condonation of delay in filing).

This is an application filed by the petitioner seeking condonation of delay in filing the petition u/s 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act"). The facts relevant for deciding the present application are that the impugned award was passed on 31.01.2011 and copy thereof was received by the petitioner on 01.02.2011. The petitioner, thereafter, preferred the petition u/s 34 of the Act before the learned Additional District Judge, Karkardooma Courts. However, vide order dated 08.12.2011, the learned Additional District Judge, Karkardooma Courts dismissed the petition for want of pecuniary jurisdiction. Certified copy of the same was received by the petitioner on 17.12.2011. The present petition u/s 34 was filed by the petitioner on 25.01.2012. The petitioner, relying upon the decision of the Bombay High Court in the case of HMP Engineers Ltd. and Others Vs. Rallis India Ltd. and Hon''ble Mr. A.M. Ahmadi, (Chief Justice of India, Retd), Sole Arbitrator, , contends that the time period spent by the petitioner in pursuing the petition u/s 34 of the Act before the learned Additional District Judge, Karkardooma Courts ought to be excluded as the petitioner pursued the same under a bona fide belief.

Heard the Learned Counsel for the parties. The present petition has been filed u/s 34 of the Act. Time limit for filing the said petition has been specifically provided in Section 34(3) of the Act which provides that the said petition is to be filed within three months from the date of receipt of the arbitral award. The proviso to Section 34(3) further clearly provides that the Court can condone the delay up to the further period of 30 days, but not thereafter. Hon''ble Supreme Court in the case of Union of India Vs. M/s Popular Construction Co., has made the following pertinent observations as regards the phrase ''but not thereafter'':-

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.

Let us examine the facts of the present case in view of the aforesaid legal position. The impugned award was passed on 31.01.2011 and copy thereof having been received by the petitioner on 01.02.2011, the period of limitation of three months is to be reckoned from 02.02.2011. Three months from 02.02.2011 expire on 01.05.2011. A further period of 30 days, to be reckoned from 02.05.2011, expires on 31.05.2011. The present petition has been filed on 25.01.2012. As stated above, it is the case of the petitioner that he was pursuing the petition u/s 34 of the Act before the learned Additional District Judge, Karkardooma Courts, New Delhi and the time spent should be excluded giving the petitioner benefit of Section 14 of the Limitation Act, 1963. The pertinent fact to be noted, however, is the fact that the petition before the learned Additional District Judge, Karkardooma Courts, was filed by the petitioner on 29.04.2011 and the copy of the order dismissing the petition dated 08.12.2011 was received by the petitioner on 17.12.2011, which means that the total time spent by the petitioner (i.e. from 29.04.2011 to 17.12.2011) in pursuing the petition before learned Additional District Judge, Karkardooma Courts, New Delhi was 232 days. Now, assuming the petitioner to be entitled to the benefit of the provisions of Section 14 of the Limitation Act, 1963 and excluding 232 days'' from the period of limitation, the last date of filing present petition which was 31.05.2011 may be extended to 18.01.2012. Therefore, the petitioner should have filed the petition latest by 18.01.2012. The petitioner has, however, filed the present petition on 25.01.2012. As such, the petition is filed beyond the limitation period of 3 months and 30 days. The delay in filing of the petition u/s 34 beyond the aforesaid period cannot be condoned.

There being no merit in the present application, the same is accordingly dismissed.

IA No. 6396/2012 (filed by the petitioner for condonation of delay in re-filing).

This is an application filed by the petitioner seeking condonation of 74 days'' delay in re-filing the petition u/s 34 of the Act.

In view of the dismissal of IA No. 6393/2012, the present application does not survive for consideration. Dismissed as infructuous.

O.M.P. 329/2012

In view of the dismissal of IA No. 6393/2012, the petition is dismissed being not maintainable.