Union of India vs Konark Electric Sales Corporation

Vipin Sanghi, J.—This appeal is directed against the order dated 01.02.2008 passed by the learned Single Judge in OMP No. 78/2008, whereby the objections preferred by the Appellant to the arbitral award dated 20.08.2007 u/s 34 of the Arbitration and Conciliation Act, 1996 (the Act) have been dismissed on the ground that the same were barred by limitation.

In relation to a dispute arising between the parties arising out of a contractual relationship the matter was referred to arbitration. The learned arbitrator rendered an award dated 20.08.2007 partly allowing the claims of the Respondent-claimant and dismissing the counter claims of the Appellant. According to the Appellant, a copy of the said award was received in the office of the Appellant on 29.08.2007. This is so stated in a supplementary/additional affidavit filed before us dated 15.05.2008. The Appellant under a mistaken impression that the Civil Court in Gurgaon has jurisdiction to entertain the objections to the said award, lodged its objections before the court of the District Judge, Gurgaon on 14.11.2007. The objection petition was disposed of by the District Judge, Gurgaon, for want of jurisdiction on 27.11.2007. Thereafter, the Appellant filed the objections in this Court on 15.01.2008.

The learned Single Judge has dismissed the objections as being barred by limitation on the premise that the Appellant had not disclosed as to when it received the copy of the award and, therefore, it had been presumed that the award was received by the Appellant on the same day, as it was published. The learned Single Judge observed that the time for filing the objections u/s 34(4) against the award dated 20.08.2007 expired on 20.11.2007, and even if the delay for the period of 30 days, for which the court had the power to condone the delay on the Appellant showing sufficient cause, were to be condoned, the said period expired on or about 20.12.2007. He further held that the objections preferred before the District Judge, Gurgaon, having been dismissed on 20.11.2007, the Appellant had sufficient time to file the objections before this Court by 20.12.2007. Had that been done, the Appellant would have made out a case for condonation of delay in the filing of the objections under proviso to Section 34(3) of the Act. Learned single judge further held that even in invoking Section 13 of the Limitation Act, the Appellant had to show that it had acted bona fide and with due diligence. However, the Appellant had not made any pleading in the application for seeking condonation of delay to show that the Appellant had acted bona fide and with due diligence, and the Appellant had failed to establish these factors even during the arguments. On this basis the objections preferred by the Appellant were dismissed.

Before us learned Counsel for the Appellant has sought to place reliance upon the decision of the Supreme Court in Consolidated Engg. Enterprises Vs. Principal Secy. Irrigation Deptt. and Others, to contend that the applicability of Section 14 of the Limitation Act is not excluded by the Act. The Supreme Court has held that Section 14 of the Limitation Act is available to the applicant who prefers objections to an arbitral award.

Having considered the submission of learned Counsel for the Appellant, we are of the view that there is no merit in this appeal and the same is liable to be dismissed as the objections preferred by the Appellant, even after being granted the exclusion of time spent by the Appellant in pursuing its remedy in the District Court, Gurgaon, are barred by limitation, and the delay is still beyond the period of 30 days for which the same could be condoned.

Assuming that the Appellant was served with the award on 29.08.2007 and not on 20.08.2007, the objections could have been preferred within a period of three months i.e. by 29.11.2007. In the meantime, the Appellant preferred objections before the District Court, Gurgaon on 14.11.2007, which came to be rejected for want of jurisdiction on 27.11.2007. From 14.11.2007 to 27.11.2007 (both days inclusive) 14 days were consumed. Therefore, upon application of Section 14 of the Limitation Act these 14 days would be excluded. The limitation for filing the objections, therefore, expired on 13.12.2007 (after adding 14 days after 29.11.2007). The power of the court to condone delay under proviso to Section 34(3) of the Act is limited to the extent of 30 days. Even if it were to be assumed that the Appellant is entitled to condonation of delay of 30 days beyond 13.12.2007, that would take us to 12.01.2008. However, the objections, admittedly, were preferred in this Court on 15.01.2008. It is well settled that the court has no power to condone the delay in the filing of objections beyond the period of 30 days. Consequently, there is no way that the objections preferred, by the Appellant can be saved from the bar of limitation.

For the aforesaid reasons, we see no merit in this appeal and dismiss the same, leaving the parties to bear their own respective costs. The Respondent shall be entitled to withdraw the amount deposited by the Appellant towards satisfaction of the decree arising from the award by moving an appropriate application before the Registrar of this Court and the amount deposited along with interest, if any, shall be released to the Respondent within eight weeks of moving an application for withdrawal of such deposited amount.