Himachal Pradesh High Court
Decided On: 22Nd November vs Dev Raj on 22 November, 2024
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
2024:HHC:4443
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
OMP(M) No. 25 of 2024 in
Arb. Case No. 851 of 2024
Decided on: 22nd November, 2024.
_________________________________________________________________
Engineer-in-Chief & Ors. ….Applicants/Objectors
Versus
Dev Raj …Respondent
_________________________________________________________________
Coram
Ms. Justice Jyotsna Rewal Dua,
lWhether approved for reporting?
_________________________________________________________________
For the applicants: Mr.Y. P. S. Dhaulta and Mr. L. N.
Sharma, Additional Advocates
General with Mr. Sikandar Bhushan
and Ms. Leena Guleria, Deputy
Advocates General.
For the respondent: Mr. Suneet Goel, Sr. Advocate with
Mr. Vivek Negi and Mr. Vishwas
Kaushal, Advocates.
Jyotsna Rewal Dua, Judge
Gist of the point involved in the lis is, in case the
objections under Section 34 of the Arbitration and
Conciliation Act, 1996 (the Act in short) are preferred beyond
l
Whether reporters of Local Papers may be allowed to see the judgment? yes
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2024:HHC:4443
three months-the period of limitation prescribed under
Section 34(3) of the Act, but within the extendable period of
thirty days in terms of proviso thereto, whether the objector
is required to explain ‘sufficient cause’ for the entire period
from the date of receipt of the award till the date of filing of
the objections or only for the period beyond three months up
to the date of filing of the objections.
Award was passed on 06.11.2023 in favour of the
non-applicant/respondent by the learned Sole Arbitrator. The
State of Himachal Pradesh, feeling aggrieved against the
aforesaid award, has preferred objections under Section 34 of
the Arbitration & Conciliation Act, 1996. These objections
have been preferred twenty-four days beyond the period of
three months prescribed under Section 34(3) of the Act.
Hence, this application has been moved for condoning the
delay in filing the objections under Section 34 of the Act.
2. Facts and Submissions
2(i). Factual position relevant for the purpose of
adjudicating this application is not in dispute: –
Award was passed by the learned Arbitrator on
06.11.2023.
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Signed copy of the award was received by the
applicants/objectors on 07.11.2023 itself.
Three months’ period available under Section 34
(3) of the Act for preferring objections against the
award lapsed on 07.02.2024. The objections were
preferred on 02.03.2024 i.e. on 114th day from the
date of passing of the award or in other words 24 th
day after the expiry of three months’ period
from the date of receipt of the award.
2(ii). The applicants/objectors have pleaded following
factual reasons for condoning the delay in filing the
objections: –
2(ii)(a) After receipt of the signed copy of the award on
07.11.2023, applicant No.3, Executive Engineer, Rohru
Division, HPPWD Rohru, District Shimla, H.P., vide his letter
dated 29.01.2024, submitted a copy of the award to the office
of the Engineer-in-Chief, HPPWD, Shimla or further
necessary action.
2(ii)(b) The matter was examined in the legal cell of the
Engineer-in-Chief, whereafter it was submitted to the State
Government on 31.01.2024.
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2(ii)(c) The matter was examined at the Government level
in consultation with Law Department. The opinion of Law
Department was conveyed by the applicant No.1-State of HP
through Principal Secretary (Public Works) on 21.02.2024.
2(ii)(d) The Engineer-in-Chief HPPWD, Shimla conveyed
the decision of the State to applicant No.2 on 22.02.2024.
2(ii)(f) Applicant No.2, thereafter took steps for preparing
and drafting the objections. The same were prepared and filed
on 02.03.2024.
In view of above, learned Additional Advocate
General submitted that the delay in filing the objections was
neither intentional nor willful but had taken place for the
reasons beyond the control of the applicants/objectors.
Prayer was made for condoning the delay.
2(iii). The non-applicant/respondent, in its reply to
the application, took a pertinent objection that no justifiable
cause has been assigned by the applicants/objectors for
taking about two months in mere forwarding the signed copy
of the award dated 06.11.2023 to the Superintending
Engineer for taking further necessary action; That according
to the applicants/objectors, signed copy of the award was
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2024:HHC:4443
received by them on 07.11.2023, but, it was forwarded to the
concerned Engineer-in-Chief, only on 29.01.2024. This period
of eighty-three days has gone absolutely unexplained.
Learned Senior Counsel for the non-
applicant/respondent contended that sufficient cause has not
been shown by the applicants/objectors in order to condone
the delay in moving the objections. Prayer was made to
dismiss the application.
2(iv) The applicants/objectors have not filed rejoinder.
3. Heard learned counsel for the parties and
considered the case file.
4. Consideration
4(i). Section 34 of the Act provides the remedy as also
the limitation period for setting aside an arbitral award.
Section 34(3) provides the limitation period for filing
objections against the arbitral award and reads as under: –
Section 34 (3) of the Act
“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
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2024:HHC:4443applicant 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.”
As per Section 34 (3) of the Act, objections can be
filed against the arbitral award within a period of three
months from the date of receipt of the award or from the date
of disposal of the request made under Section 33 of the Act.
In terms of the proviso to Section 34(3) of the Act, in case the
Court is satisfied that the applicant was prevented by
sufficient cause from making the application against the
arbitral award within the prescribed period of three months,
it may entertain the application within a further period of
thirty days, but not thereafter.
4(ii) In the instant case, objections were not preferred
within the prescribed period of three months from the date of
receipt of the arbitral award. The objections are, however,
within the further period of thirty days, which can be made
available to a party in given facts and circumstances, in
terms of proviso to Section 34(3) of the Act, upon satisfaction
of the Court that the applicant was prevented by sufficient
cause from making the application within the prescribed
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2024:HHC:4443period of three months.
4(ii)(a) In State of West Bengal represented through
Secretary & Ors. Vs. Rajpath Contractors and Engineers
Ltd.1 in context of interplay of Sections 4 and 5 of the
Limitation Act, to the petition under Section 34 of the Act, it
was held that the prescribed period under Section 34(3) of
the Act is three months and further that given the language
used in proviso to Sub-Section 3 of Section 34 of the Act,
applicability of Section 5 of Limitation Act to the petition
under Section 34 of the Act has been excluded. The period of
thirty days beyond three months which the Court may extend
on sufficient cause being shown under the proviso to Section
34(3) of the Act is not the ‘period of limitation’ therefore, not
the ‘prescribed period. Relevant paras from the judgment
read as under: –
“9. We may note here that Section 43 of the Arbitration Act
provides that the Limitation Act shall apply to the
arbitrations as it applies to proceedings in the Court. We
may note here that the consistent view taken by this
Court right from the decision in the case of Union of
India v. Popular Construction Co. is that given the
language used in proviso to subsection (3) of Section
34 of the Arbitration Act, the applicability of Section 5 of1
(2024) 7 SCC 257
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2024:HHC:4443the Limitation Act to the petition under Section 34 of the
Arbitration Act has been excluded.
10. Now, we proceed to consider whether the appellant will
be entitled to the benefit of Section 4 of the Limitation
Act. Section 4 of the Limitation Act reads thus:
“4. Expiry of prescribed period when court is
closed.–Where the prescribed period for
any suit, appeal or application expires on a
day when the court is closed, the suit,
appeal or application may be instituted,
preferred or made on the day when the
court reopens.
Explanation.–A court shall be deemed to be
closed on any day within the meaning of
this section if during any part of its normal
working hours it remains closed on that
day.”
11. The meaning of “the prescribed period” is no longer res
integra. In the case of Assam Urban Water Supply &
Sewerage Board v. Subash Projects & Mktg. Ltd. , in
paragraphs nos. 13 and 14, the law has been laid
down on the subject. The said paragraphs read thus:
“13. The crucial words in Section 4 of the 1963
Act are “prescribed period”. What is the
meaning of these words?
14. Section 2(j) of the 1963 Act defines:
“2. (j) ‘period of limitation’ [which] means the
period of limitation prescribed for any
suit, appeal or application by the
Schedule, and ‘prescribed period’
means the period of limitation
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2024:HHC:4443computed in accordance with the
provisions of this Act;
Section 2(j) of the 1963 Act when read
in the context of Section 34(3) of the
1996 Act, it becomes amply clear that
the prescribed period for making an
application for setting aside an arbitral
award is three months. The period of
30 days mentioned in the proviso that
follows subsection (3) of Section 34 of
the 1996 Act is not the “period of
limitation” and, therefore, not the
“prescribed period” for the purposes of
making the application for setting
aside the arbitral award. The period of
30 days beyond three months which
the court may extend on sufficient
cause being shown under the proviso
appended to subsection (3) of Section
34 of the 1996 Act being not the
“period of limitation” or, in other
words, the “prescribed period”, in our
opinion, Section 4 of the 1963 Act is
not, at all, attracted to the facts of the
present case.”
Even in this case, this Court was dealing with the
period of limitation for preferring a petition
under Section 34 of the Arbitration Act. We may note
that the decision in the case of State of Himachal
Pradesh and Another v. Himachal Techno Engineers
and Another which is relied upon by the appellant,
follows the aforesaid decision.”
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4(ii)(b) In P. Radha Vs. Bai and others Vs. P. Ashok
Kumar and another2, it was reiterated that proviso to
Section 34 (3) of the Act though provides for condoning the
delay, however unlike Section 5 of the Limitation Act, the
delay can be condoned only for a period of thirty days, that
too on showing sufficient cause. Under Section 34(3) of the
Act, the commencement period for computing the limitation
period is the date of receipt of the award or the date of the
disposal of request under Section 33 (correction/additional
award). Section 34 is the only remedy for challenging an
award passed under Part-1 of the Act. Section 34(3) of the
Act contains Limitation provision, which is inbuilt into the
remedy provision. One does not have to look at the Limitation
Act or any other provision for identifying the limitation period
for challenging an award passed under Part-I of the
Arbitration Act. The party can challenge an award as soon as
it receives it. Once an award is received, the party has
knowledge of the award and the limitation period commences.
Relevant paras from the judgment are as under: –
32.1 Section 34 is the only remedy for challenging an
award passed under Part I of the Arbitration Act.
2
(2019) 13 SCC 445
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Section 34 (3) is a limitation provision, which is
an inbuilt into the remedy provision. One does
not have to look at the Limitation Act or any other
provision for identifying the limitation period for
challenging an Award passed under Part I of the
Arbitration Act.
32.2 The time limit for commencement of limitation period is
also provided in Section 34(3) i.e. the time from which
a party making an application “had received the
Arbitral Award” or disposal of a request under
Section 33 for corrections and interpretation of the
Award.
32.3…………
32.4 The limitation provision in Section 34(3) also
provides for condonation of delay. Unlike Section 5 of
Limitation Act, the delay can only be condoned
for 30 days on showing sufficient cause. The
crucial phrase “but not thereafter” reveals the
legislative intent to fix an outer boundary period for
challenging an Award.
32.5 Once the time-limit or extended time-limit for
challenging the arbitral award expires, the period for
enforcing the award under Section 36 of the
Arbitration Act commences. This is evident from the
phrase ‘where the time for making an application to
set aside the arbitral award under Section 34 has
expired”. There is an integral nexus between the
period prescribed under Section 34(3) to challenge the
award and the commencement of the enforcement
period under Section 36 to execute the award.
42. In the context of Section 34, a party can challenge an
award as soon as it receives the award. Once an
award is received, a party has knowledge of the
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award and the limitation period commences. The
objecting party is therefore precluded from
invoking Section 17(1)(b) & (d) once it has knowledge
of the Award. Section 17(1)(a) and (c) of
Limitation Act may not even apply, if they are
extended to Section 34, since they deal with a
scenario where the application is “based upon” the
fraud of the respondent or if the application is for
“relief from the consequences of a mistake”.
Section 34 application is based on the award and not
on the fraud of the respondent and does not seek the
relief of consequence of a mistake.
44. In view of the above, we hold that once the party has
received the award, the limitation period under Section
34(3) of the Arbitration Act commences. Section 17 of
the Limitation Act would not come to the rescue of such
objecting party.”
4(ii)(c) In Government of Maharashtra (Water
Resources Department) Represented by Executive
Engineer. Vs. Borse Brothers Engineers and Contractors
Private Limited3 The Hon’ble Apex Court emphasizing the
object sought to be achieved under the Arbitration Act and
Commercial Courts Act i.e. the speedy resolution of disputes,
held that the expression ‘sufficient cause’ is not elastic
enough to cover long delays beyond the period provided in the
appeal provision itself. The expression ‘sufficient cause’ is not
3
(2021) 6 SCC 460
– 13 –
2024:HHC:4443
itself a loose panacea for the ill of pressing negligent and stale
claims. ‘Sufficient cause’ means that the party should not
have acted in a negligent manner or there was a want of
bonafide on its part in view of facts and circumstances of the
case or it cannot be alleged that the party has ‘not acted
diligently’ or remained inactive. The expression ‘Sufficient
cause’ should be given a liberal interpretation to ensure that
substantial justice is done but only so long as negligence,
inaction or lack of bonafides cannot be imputed to the party
concerned. Law of limitation may harshly affect a particular
party but it has to be applied with all its rigor when the
statute so prescribes. A result flowing from statutory
provision is never an evil “Inconvenience is not” a decisive
factor to be considered while interpreting a statute. Whether
or not sufficient cause has been furnished, can be decided on
the facts of a particular case and no straitjacket formula is
possible. The relevant portion of the judgment read as
under:
“58. Given the object sought to be achieved under both
the Arbitration Act and the Commercial Courts Act, that
is, the speedy resolution of disputes, the expression
“sufficient cause” is not elastic enough to cover long
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delays beyond the period provided by the appeal
provision itself. Besides, the expression “sufficient
cause” is not itself a loose panacea for the ill of pressing
negligent and stale claims. This Court, in Basawaraj v.
Land Acquisition Officer, (2013) 14 SCC 81, has held:
“9. Sufficient cause is the cause for which the
defendant could not be blamed for his absence.
The meaning of the word “sufficient” is
“adequate” or “enough”, inasmuch as may be
necessary to answer the purpose intended.
Therefore, the word “sufficient” embraces no
more than that which provides a platitude,
which when the act done suffices to accomplish
the purpose intended in the facts and
circumstances existing in a case, duly examined
from the viewpoint of a reasonable standard of
a cautious man. In this context, “sufficient
cause” means that the party should not have
acted in a negligent manner or there was a
want of bona fide on its part in view of the facts
and circumstances of a case or it cannot be
alleged that the party has “not acted diligently”
or “remained inactive”. However, the facts and
circumstances of each case must afford
sufficient ground to enable the court concerned
to exercise discretion for the reason that
whenever the court exercises discretion, it has
to be exercised judiciously. The applicant must
satisfy the court that he was prevented by any
“sufficient cause” from prosecuting his case,
and unless a satisfactory explanation is
furnished, the court should not allow the
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application for condonation of delay. The court
has to examine whether the mistake is bona
fide or was merely a device to cover an ulterior
purpose. (See Manindra Land and Building
Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC
1336] , Mata Din v. A. Narayanan [(1969) 2 SCC
770 : AIR 1970 SC 1953] , Parimal v.
Veena [(2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1
: AIR 2011 SC 1150] and Maniben Devraj Shah
v. Municipal Corpn. of Brihan Mumbai [(2012) 5
SCC 157 : (2012) 3 SCC (Civ) 24 : AIR 2012 SC
1629] .)
10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC
993] this Court explained the difference
between a “good cause” and a “sufficient
cause” and observed that every “sufficient
cause” is a good cause and vice versa.
However, if any difference exists it can only be
that the requirement of good cause is complied
with on a lesser degree of proof than that of
“sufficient cause”.
11. The expression “sufficient cause” should be given
a liberal interpretation to ensure that
substantial justice is done, but only so long as
negligence, inaction or lack of bona fides cannot
be imputed to the party concerned, whether or
not sufficient cause has been furnished, can be
decided on the facts of a particular case and no
straitjacket formula is possible. (Vide Madanlal
v. Shyamlal [(2002) 1 SCC 535 : AIR 2002 SC
100] and Ram Nath Sao v. Gobardhan Sao
[(2002) 3 SCC 195 : AIR 2002 SC 1201] .)
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12. It is a settled legal proposition that law of
limitation may harshly affect a particular party
but it has to be applied with all its rigour when
the statute so prescribes. The court has no
power to extend the period of limitation on
equitable grounds. “A result flowing from a
statutory provision is never an evil. A court has
no power to ignore that provision to relieve what
it considers a distress resulting from its
operation.” The statutory provision may cause
hardship or inconvenience to a particular party
but the court has no choice but to enforce it
giving full effect to the same. The legal maxim
dura lex sed lex which means “the law is hard
but it is the law”, stands attracted in such a
situation. It has consistently been held that,
“inconvenience is not” a decisive factor to be
considered while interpreting a statute.
13. The statute of limitation is founded on public
policy, its aim being to secure peace in the
community, to suppress fraud and perjury, to
quicken diligence and to prevent oppression. It
seeks to bury all acts of the past which have
not been agitated unexplainably and have from
lapse of time become stale. According to
Halsbury’s Laws of England, Vol. 28, p. 266:
“605. Policy of the Limitation Acts.–The
courts have expressed at least three
differing reasons supporting the existence
of statutes of limitations namely, (1) that
long dormant claims have more of cruelty
than justice in them, (2) that a defendant
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might have lost the evidence to disprove a
stale claim, and (3) that persons with good
causes of actions should pursue them with
reasonable diligence.”
An unlimited limitation would lead to a sense of
insecurity and uncertainty, and therefore,
limitation prevents disturbance or deprivation of
what may have been acquired in equity and
justice by long enjoyment or what may have been
lost by a party’s own inaction, negligence or
laches.
14. In P. Ramachandra Rao v. State of
Karnataka [(2002) 4 SCC 578 : 2002 SCC (Cri)
830 : AIR 2002 SC 1856] this Court held that
judicially engrafting principles of limitation
amounts to legislating and would fly in the face
of law laid down by the Constitution Bench
in Abdul Rehman Antulay v. R.S. Nayak [(1992) 1
SCC 225 : 1992 SCC (Cri) 93 : AIR 1992 SC
1701] .
15. The law on the issue can be summarised to the
effect that where a case has been presented in
the court beyond limitation, the applicant has to
explain the court as to what was the “sufficient
cause” which means an adequate and enough
reason which prevented him to approach the
court within limitation. In case a party is found to
be negligent, or for want of bona fide on his part
in the facts and circumstances of the case, or
found to have not acted diligently or remained
inactive, there cannot be a justified ground to
condone the delay. No court could be justified in
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condoning such an inordinate delay by imposing
any condition whatsoever. The application is to
be decided only within the parameters laid down
by this Court in regard to the condonation of
delay. In case there was no sufficient cause to
prevent a litigant to approach the court on time
condoning the delay without any justification,
putting any condition whatsoever, amounts to
passing an order in violation of the statutory
provisions and it tantamounts to showing utter
disregard to the legislature.”
Hon’ble Apex Court taking note of the law laid
down in Postmaster General and others Versus Living Media
India Limited and another4 held that different yardstick for
condonation of delay cannot be laid down merely because
Government is involved. No special treatment can be
accorded to the Government from the provisions of Section 34
of the Act. Paras relevant to the context are as under: –
“59. Likewise, merely because the Government is involved, a
different yardstick for condonation of delay cannot be
laid down. This was felicitously stated in Postmaster
General vs. Living Media (India) Ltd.7% [“Postmaster
General”], as follows: (SCC pp. 573-74, paras 27-29)
“27. It is not in dispute that the person(s) concerned
were well aware or conversant with the issues
involved including the prescribed period of
limitation for taking up the matter by way of filing4
(2012) 3 SCC 563
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2024:HHC:4443
a special leave petition in this Court. They cannot
claim that they have a separate period of
limitation when the Department was possessed
with competent persons familiar with court
proceedings. In the absence of plausible and
acceptable explanation, we are posing a question
why the delay is to be condoned mechanically
merely because the Government or a wing of the
Government is a party before us.
28. Though we are conscious of the fact that in a
matter of condonation of delay when there was
no gross negligence or deliberate inaction or lack
of bona fides, a liberal concession has to be
adopted to advance substantial justice, we are of
the view that in the facts and circumstances, the
Department cannot take advantage of various
earlier decisions. The claim on account of
impersonal machinery and inherited bureaucratic
methodology of making several notes cannot be
accepted in view of the modern technologies
being used and available. The law of limitation
undoubtedly binds everybody, including the
Government.
29. In our view, it is the right time to inform all the
government bodies, their agencies and
instrumentalities that unless they have
reasonable and acceptable explanation for the
delay and there was bona fide effort, there is no
need to accept the usual explanation that the file
was kept pending for several months/years due
to considerable degree of procedural red tape in
the process. The government departments are
under a special obligation to ensure that they
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perform their duties with diligence and
commitment. Condonation of delay is an
exception and should not be used
as an anticipated benefit for the government
departments. The law shelters everyone under
the same light and should not be swirled for the
benefit of a few.”
60. The decision in Postmaster General has been followed in
the following subsequent judgments of this Court:
(i) State of Rajasthan v. Bal Kishan Mathur at
paras 8-8.2;
(ii) State of U.P. v. Amar Nath Yadav at paras 2-3;
(iii) State of T.N. v. N. Suresh Rajan at paras 11-13;
and
(iv) State of M.P. v. Bherulal at paras 3-4.
61. In a recent judgment, namely, State of M.P. v. Chaitram
Maywade, this Court referred to Postmaster General,
and held as follows: (SCC pp. 668-69, paras 1-5)
“1. The State of Madhya Pradesh continues to do
the same thing again and again and the
conduct seems to be incorrigible. The special
leave petition has been filed after a delay of
588 days. We had an occasion to deal with
such inordinately delayed filing of the appeal by
the State of Madhya Pradesh in State of M.P. v.
Bherulal in terms of our order dated 15-10-
2020.
2. We have penned down a detailed order in that
case and we see no purpose in repeating the
same reasoning again except to record what are
stated to be the facts on which the delay is
sought to be condoned. On 5-1-2019, it is stated
that the Government Advocate was approached
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d in respect of the judgment delivered on 13-11-
2018 and the Law Department permitted filing
of the SLP against the impugned order on 26-5-
2020. Thus, the Law Department took almost
about 17 months’ time to decide whether the
SLP had to be filed or not. What greater
certificate of incompetence would there be for
the Legal Department.
3. We consider it appropriate to direct the Chief
Secretary of the State of Madhya Pradesh to
look into the aspect of revamping the Legal
Department as it appears that the Department
is unable to file appeals within any reasonable
period of time much less within limitation. These
kinds of excuses, as already recorded in the
aforesaid order, are no more admissible in view
of the judgment in Postmaster General v. Living
Media (India) Ltd.
4. We have also expressed our concern that these
kinds of the cases are only “certificate cases” to
obtain a certificate of dismissal from the
Supreme Court to put a quietus to the issue. The
object is to save the skin of officers who may be
in default. We have also recorded the irony of
the situation where no action is taken against
the officers who sit on these files and do
nothing.
5. Looking to the period of delay and the casual
manner in which the application has been
worded, the wastage of judicial time involved,
we impose costs on the petitioner State of Rs
35,000 to be deposited with the Mediation and
Conciliation Project Committee. The amount be
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deposited within four weeks. The amount be
recovered from the officer(s) responsible for the
delay in filing and sitting on the files and
certificate of recovery of the said amount be also
filed in this Court within the said period of time.
We have put to Deputy Advocate General to
caution that for any successive matters of this
kind the costs will keep on going up.”
4(ii)(d) In Pathpati Subba Reddy (died) by L.Rs. and
others vs. Special Deputy Collector (LA)5, in context of a
matter arising under Section 54 of the Land Acquisition Act,
it was held that even after establishment of sufficient cause
for various reasons, condonation of delay can be refused
depending upon the bonafide of a party. When mandatory
provision is not complied with and delay is not properly,
satisfactorily and convincingly explained, such delay ought
not to be condoned on sympathetic grounds. The conclusion
drawn by the Hon’ble Apex Court after considering several
precedents in timeline, are as under: –
“26. On a harmonious consideration of the provisions of the
law, as aforesaid, and the law laid down by this
Court, it is evident that:
5
SLP (C) No. 31248 of 2018, decided on 08.04.2024 and 2024 SCC Online SC 513
– 23 –
2024:HHC:4443
(i) Law of limitation is based upon public policy
that there should be an end to litigation by
forfeiting the right to remedy rather than the
right itself;
(ii) A right or the remedy that has not been
exercised or availed of for a long time must
come to an end or cease to exist after a fixed
period of time;
(iii) The provisions of the Limitation Act have to
be construed differently, such as Section
3 has to be construed in a strict sense
whereas Section 5 has to be construed
liberally;
iv) In order to advance substantial justice,
though liberal approach, justice-oriented
approach or cause of substantial justice may
be kept in mind but the same cannot be used
to defeat the substantial law of limitation
contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise
discretion to condone the delay if
sufficient cause had been explained, but
that exercise of power is discretionary in
nature and may not be exercised even if
sufficient cause is established for
various factors such as, where there is
inordinate delay, negligence and want of
due diligence;
(vi) Merely some persons obtained relief in similar
matter, it does not mean that others are also
entitled to the same benefit if the court is not
satisfied with the cause shown for the delay
in filing the appeal;
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(vii) Merits of the case are not required to be
considered in condoning the delay; and
(viii) Delay condonation application has to be
decided on the parameters laid down for
condoning the delay and condoning the
delay for the reason that the conditions
have been imposed, tantamounts to
disregarding the statutory provision.”
4(iii) In the instant case, since the objections have
been preferred beyond the period of three months under
Section 34 (3) of the Act, therefore, in terms of the proviso
attached thereto, it has to be considered as to whether the
applicants/objectors were prevented by sufficient cause in
not preferring the objections within the prescribed period of
three months. The applicants are not just required to show
sufficient cause for the period of twenty-four days beyond the
prescribed period of three months, they are mandated by the
proviso to Section 34(3) of the Act to explain as to why the
objections could not be preferred within the prescribed period
of three months. The contention raised by the
applicants/objectors that they are not required to explain the
delay in not preferring the objections within the prescribed
period, is not tenable. The word ‘sufficient cause’ figuring in
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proviso to Section 34(3) of the Act, in fact, relates to the
reasons for not filing the objections within the prescribed
period. The prescribed period is three months. It is only in
case the assigned reasons reflect the bonafides of the
applicants/objectors, constitute sufficient cause and the
Court records its satisfaction to that an effect, only then the
thirty days’ period beyond the prescribed period of three
months’ can be condoned and not otherwise.
4(iv) Examining facts of the present case in light of
provisions of Section 34 of the Act and the law laid down on
the subject, there is no escape from conclusion that the
applicants/objectors have not been able to furnish any cause
much less sufficient cause for condoning the delay in not
filing their objections against the award within the prescribed
period of three months. As noticed earlier, the award was
passed by the learned Arbitrator on 06.11.2023. The
applicants/objectors received signed copy of the award on
07.11.2023 itself. First action in furtherance of filing of
objections against the award, was taken by the
applicants/objectors only on 29.01.2024. There is no whisper
either in the application seeking condonation of delay or in
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the rejoinder thereto as to what stopped the applicants/
objectors from taking any action against the award w.e.f.
07.11.2023 till 29.01.2024. No cause, reason much less
sufficient one has been furnished by the applicants/
objectors for not filing the objections within the prescribed
limitation period of three months. No case, therefore, is made
out for condoning the delay beyond the prescribed period of
three months.
5. Conclusion
Applicants/objectors’ contention that they are not
required to explain reasons for the delay in not filing the
objections under Section 34 of the Act during the prescribed
period of three months and only the time taken for filing the
objections in the available extended period of thirty days is to
be explained, is a fallacious and misconceived notion. It is
only on satisfaction of the sufficient cause shown by the
applicants/ objectors for not filing their objections to the
award within the prescribed period of three months under
Section 34(3) of the Act that the delay can be condoned by
the Court up to the extendable period of thirty more days.
The moment the prescribed period of three months lapses
– 27 –
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without filing the objections, the applicants/objectors are
mandated in law to furnish sufficient cause for the entire
period of delay from the date of receipt of the award till the
date of filing of objections. The limitation period commences
from the date of receipt of the award. It is only upon
demonstration of the sufficient cause for this entire period
that the objections can be entertained up to the extendable
period of thirty days from date of the expiry of prescribed
period of three months. It has already been held that in the
facts of the given case, the applicants/objectors have
miserably failed to justify the delay in filing the objections. No
cause much less sufficient cause has been pleaded for not
taking any action in furtherance of filing objections against
the award in total block of more than two months (83 days)
within the prescribed limitation period of three months.
In view of above discussion, no case for condoning
the delay is made out. Accordingly, the application is
dismissed. Consequently, the Arbitration Case is also
dismissed.
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Pending miscellaneous application(s), if any, also
stand disposed of.
Jyotsna Rewal Dua
Judge
November 22, 2024
R.Atal