Supreme Court of India
Mypreferred Transformation And … vs M/S. Faridabad Implements Pvt. Ltd on 10 January, 2025
Author: Pamidighantam Sri Narasimha
Bench: Pamidighantam Sri Narasimha, Pankaj Mithal
2025 INSC 56 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 336 OF 2025
ARISING OUT OF SLP (C) NO. 9996 OF 2024
MY PREFERRED TRANSFORMATION &
HOSPITALITY PVT. LTD. & ANR. ...APPELLANT(S)
VERSUS
M/S FARIDABAD IMPLEMENTS PVT. LTD. …RESPONDENT(S)
JUDGMENT
PAMIDIGHANTAM SRI NARASIMHA, J.
Table of Contents
1. Introduction ………………………………………………………………………. 2
2. Facts ……………………………………………………………………………….. 4
3. Decision of the High Court under Section 34 and Section 37 of the
ACA ……………………………………………………………………………………… 5
4. Submissions ……………………………………………………………………… 7
5. Issues ……………………………………………………………………………. 12
6. Applicability of the Limitation Act to ACA ………………………………. 13
7. Applicability of the Limitation Act to Section 34(3) …………………….. 16
i. Section 5 of the Limitation Act …………………………………………… 18
Signature Not Verified
ii.
Digitally signed by
INDU MARWAH
Section 12 of the Limitation Act …………………………………………. 20
Date: 2025.01.10
18:42:43 IST
Reason:
iii. Section 14 of the Limitation Act …………………………………………. 20
iv. Section 17 of the Limitation Act …………………………………………. 22
1
v. Section 4 of the Limitation Act …………………………………………… 24
8. Applicability of Section 10 of the GCA …………………………………… 31
9. Summarising the Current Position of Law ………………………………. 32
10. Highlighting Certain Concerns with the Current Legal Position …… 33
11. Conclusion……………………………………………………………………… 37
1. Introduction: Leave granted. Facts, to the extent that they are
relevant for determining the issue of limitation for filing an
application challenging an arbitral award under Section 34 of the
Arbitration and Conciliation Act, 19961 are as follows. The
appellants received the arbitral award on 14.02.2022. The 3-
month limitation period for filing the application under Section
34(3) of the ACA expired on 29.05.2022, on which date the court
was functioning, but closed after five days for vacation
commencing from 04.06.2022 to 03.07.2022. The application
under Section 34 was filed immediately on the court’s reopening,
i.e. 04.07.2022. The High Court single judge under Section 34 and
the High Court division bench under Section 37 dismissed the
petition as barred by limitation. Under these circumstances, the
issue before us is whether the benefit of the additional 30 days
under the proviso to Section 34(3), which expired during the
1
Hereinafter “ACA”.
2
vacation, can be given when the petition is filed immediately after
reopening in exercise of power under Section 4 of the Limitation
Act, 19632.
1.1 After considering Sections 34(3) and 43(1) of the ACA,
Sections 4 and 29(2) of the Limitation Act and Section 10 of the
General Clauses Act, 18973, as well as precedents of this Court,
we have answered the question in the negative and have dismissed
the present appeal. While we have expressed certain concerns
regarding the curtailment of a precious remedy to challenge an
arbitral award due to a stringent construction of Section 4 of the
Limitation Act vis-à-vis Section 34(3), we have held that in light of
the current position of law, the Section 34 application preferred by
the appellant is barred by limitation based on the following
conclusions:
(i) There is no wholesale exclusion of Sections 4 to 24 of the
Limitation Act when calculating the limitation period
under Section 34(3) of the ACA.
(ii) Section 4 of the Limitation Act applies to Section 34(3) of
the ACA only to the extent when the 3-month period
expires on a court holiday. It does not aid the applicant
2
Hereinafter “Limitation Act”.
3
Hereinafter “GCA”.
3
when the 30-day condonable period expires on a court
holiday.
(iii) In view of the applicability of Section 4 of the Limitation
Act to Section 34 proceedings, Section 10 of the GCA does
not apply and will not benefit the applicant when the 30-
day condonable period expires on a court holiday.
2. Facts: The detailed facts leading up to the present appeal are
as follows. The appellants entered into lease agreements with the
respondent, who is the owner of the property. Pursuant to certain
disputes, the respondent invoked arbitration and an arbitral
award dated 04.02.2022 was made in its favour. The appellants
received a scanned copy of the award by email on 04.02.2022 itself,
and later received a signed hard copy of the award on 14.02.2022,
from which day limitation must be calculated. The 3-month
limitation period under Section 34(3), after considering the
extension of limitation by operation of this Court’s order dated
10.01.2022 on account of the COVID-19 pandemic,4 expired on
29.05.2022. The further 30-day condonable period expired on
28.06.2022. This fell during the High Court’s summer vacation
between 04.06.2022 and 03.07.2022. The appellants filed the
4
In Re: Cognizance of Extension of Limitation, Suo Motu Writ Petition (C) No 3 of 2020.
4
Section 34 petition along with an application for condonation of
delay on the date when the court reopened, i.e., 04.07.2022. It
would also be relevant to note the notification dated 20.05.2022 of
the Registrar General of the Delhi High Court as per which
04.07.2022 would be considered the date of reopening for
calculating limitation. In the meanwhile, the respondent filed for
execution of the award.
3. Decision of the High Court under Section 34 and Section 37 of
the ACA: The Section 34 application was dismissed by the single
judge by order dated 07.02.2023 as being barred by limitation. The
appellants preferred an appeal under Section 37, which was
dismissed by the division bench by order dated 03.04.2024 that is
impugned before us. The reasoning of the High Court proceeds as
follows:
3.1 The limitation period commenced from 14.02.2022, when the
appellants received a signed copy of the award. Under Section
34(3), an application to set aside the award must be made within
a period of 3 months from the receipt of the award, which comes
up to 14.05.2022. However, the High Court referred to this Court’s
order dated 10.01.20225, which extended the period of limitation
5
ibid.
5
in cases where the limitation expired between 15.03.2020 and
28.02.2022. The extended period of limitation was 90 days from
01.03.2022, which expired on 29.05.2022. The condonable period
of 30 days expired on 28.06.2022, which fell during the summer
vacation. The application was filed on the first date of reopening of
the court, i.e., on 04.07.2022.
3.2 The High Court referred to this Court’s decision in Assam
Urban Water Supply & Sewerage Board v. Subhash Projects &
Marketing Limited6, where it was held that Section 4 of the
Limitation Act applies only to cases where the “prescribed period”
of limitation expires on a date when the court is closed. However,
it does not apply when the 30-day condonable period expires on a
court holiday.
3.3 It further held that the notification dated 20.05.2022, which
permitted filing between 27.06.2022 to 02.07.2022 would not
impact the applicability of Section 10 of the GCA, as 04.07.2022
would be considered as the date of court reopening for the purpose
of limitation.
3.4 Finally, the High Court referred to this Court’s decision in
Bhimashankar Sahakari Sakkare Karkhane Niyamita v.
6
(2012) 2 SCC 624.
6
Walchandnagar Industries Limited7, which held that Section 10 of
the GCA is inapplicable to the condonable period stipulated in the
proviso to Section 34(3) of the ACA. While noting the submission
of the learned counsel on an inconsistency in Bhimashankar
(supra) regarding the applicability of the Limitation Act to Section
34(3), it held that nevertheless, the decision is binding and
unambiguous. Therefore, the High Court held that it does not have
the power to condone the delay in the present case and dismissed
the Section 37 appeal.
4. This Court, by its order dated 10.05.2024 issued notice on the
condition that the appellants must deposit Rs. 2 crores with the
Executing Court and also stayed the execution proceedings. The
deposit condition has been complied with by the appellants.
5. Submissions: We have heard Mr. Neeraj Kishan Kaul, learned
senior counsel for the appellants, and Mr. Syed Ahmed Naqvi,
learned counsel for the respondent. Mr. Kaul’s submissions
proceed as follows:
5.1 First, referring to Union of India v. Popular Construction8 and
its reliance in Assam Urban (supra), he submitted that the
Limitation Act, including Section 4, does not apply to Section 34(3).
7
(2023) 8 SCC 453.
8
(2001) 8 SCC 470.
7
Hence, he submitted that there was no occasion for the Court in
Assam Urban (supra) to interpret Section 4 of the Limitation Act
and delve into the difference between the ‘‘prescribed period’’ and
the condonable period under Section 34(3).
5.2 Second, since the Limitation Act is excluded, Section 10 of
the GCA applies to Section 34(3), including when the condonable
period expires on a holiday. He relied on Sridevi Datla v. Union of
India9, where the benefit of Section 10 of the GCA was extended to
the party when the condonable period under Section 16 of the NGT
Act expired on a holiday and the appeal was filed on the next
working day. Additionally, he submitted that the term ‘‘certain
day’’ in Section 10 of the GCA gives it wider import than Section 4
of the Limitation Act, and extends its applicability to when the
condonable period expires on a court holiday.
5.3 Third, Mr. Kaul expressed doubt regarding the correctness of
Bhimashankar (supra), where Section 10 of the GCA was held to
be inapplicable to Section 34(3) as the Limitation Act applies. He
sought to highlight certain contradictions in the judgment by
referring to paras 54, 55 and 57. He submitted that while paras 54
and 55 hold the Limitation Act to be inapplicable to Section 34(3),
9
(2021) 5 SCC 321.
8
the Court rejected the benefit of Section 10 of the GCA in para 57
on the basis that the Limitation Act applies. In this manner, the
Court distinguished Sridevi Datla (supra) and did not sufficiently
deal with the reasoning there. Instead, the Court relied on Assam
Urban (supra), which did not consider Section 10 of the GCA, and
Sagufa Ahmed10, which did not interpret Section 10 of the GCA
sufficiently. He also submitted that the observations of the Court
in Bhimashankar (supra) doubting Sridevi Datla (supra) on the
ground that it did not deal with Assam Urban (supra) are untenable
as Section 10 of the GCA was not under consideration in Assam
Urban (supra).
5.4 The written submissions filed by the appellants adopt a
slightly different line of argumentation. It is submitted that Section
4 of the Limitation Act does not apply to the proviso of Section
34(3), since that is not the ‘‘prescribed period’’. Hence, relying on
Sridevi Datla (supra) and considering that Section 10 of the GCA
is a beneficial legislation,11 it is submitted that Section 10 of the
GCA must apply to the proviso. Its inapplicability would be
oppressive and would render the 30-day condonable period under
10
Sagufa Ahmed v. Upper Assam Polywood Products Pvt Ltd, (2021) 2 SCC 317.
11
Relied on H.H. Raja Harinder Singh v. S. Karnail Singh, 1956 SCC OnLine SC 111; Manohar Joshi v. Nitin
Bhaurao Patil, (1996) 1 SCC 169; and Consolidated Engineering Enterprises v. Principal Secretary, Irrigation
Department, (2008) 7 SCC 169.
9
Section 34(3) otiose when it expires on a court holiday, leaving the
party remediless.
6. Mr. Naqvi, learned counsel for the respondent, first referred
to this Court’s recent decision in State of West Bengal v. Rajpath
Contractors and Engineers Ltd12 to submit that in identical facts,
this Court followed Assam Urban (supra) and held that Section 4
of the Limitation Act only applies to the 3-month limitation period
and not to the 30-day condonable period under Section 34(3).
These judgments, along with Bhimashankar (supra), determine the
issue.
6.1 Second, Mr. Naqvi submitted that the entirety of Sections 4
to 24 of the Limitation Act are not excluded from applying to
Section 34 proceedings. He took us through certain portions of
Consolidated Engineering Enterprises v. Principal Secretary,
Irrigation Department13, which is a 3-judge bench decision, to
submit that Popular Construction (supra) only deals with the
exclusion of Section 5 of the Limitation Act. In this case, Section
14 of the Limitation Act was held to be applicable. Similarly, he
submitted that other decisions also apply Section 12 of the
12
(2024) 7 SCC 257.
13
(2008) 7 SCC 169.
10
Limitation Act to Section 34(3). In the same vein, Section 4 of the
Limitation Act also applies.
6.2 Third, regarding the manner in which Section 4 of the
Limitation Act applies to Section 34(3), he submitted that Sagufa
Ahmed (supra) clearly distinguishes the prescribed period and
condonable period. The wording of Section 4 only makes it
applicable to the 3-month period and not the 30-day condonable
period, which cannot be extended any further. He also submitted
that Sridevi Datla (supra) did not notice the distinction drawn in
Sagufa Ahmed (supra) when applying Section 10 of the GCA.
6.3 Fourth, he submitted that Section 10 of the GCA does not
apply to Section 34(3) as the Limitation Act applies. He also
responded to Mr. Kaul’s reliance on the words ‘‘certain day’’ in
Section 10 of the GCA by submitting that they apply when a
statute fixes a particular day or date for performing some act,
which is not the case here. Therefore, the Section 34 application,
which was filed on the 126th day, was barred by limitation and the
High Court could not have condoned the delay through reference
to Section 10 of the GCA.
6.4 In the written submissions, the respondent has further
submitted that once Section 4 of the Limitation Act applies to
11
Section 34(3), the provision cannot be further split into individual
sections, sub-sections, and provisos to make Section 10 of the GCA
applicable. Moreover, Section 10 of the GCA cannot be applied to
the condonable period as that would amount to reading the
expression ‘‘prescribed period’’ in Section 10 as including the
condonable 30-day period, which is contrary to various judgments
of this Court. Lastly, that Sridevi Datla (supra) was decided in the
context of Section 16 of the NGT Act, while Assam Urban (supra),
Bhimashankar (supra), and Rajpath Contractors (supra) are
specifically in the context of Section 34(3).
7. Issues: Before proceeding with our analysis, it is necessary to
frame issues to systematically address the submissions of the
learned counsels and the questions of law arising in this case
regarding the applicability of Section 4 of the Limitation Act and
Section 10 of the GCA to the condonable period under Section
34(3):
i. Do the provisions of the Limitation Act apply to Section 34
proceedings, and to what extent?
ii. Does Section 4 of the Limitation Act apply to Section 34(3)
as per an analysis of the statutory scheme as well as
precedents of this Court on the issue? If Section 4 applies,
12
does it apply only to the 3-month limitation period or alsothe 30-day condonable period?
iii. In light of the answer in (ii), will Section 10 of the GCA
apply to Section 34(3), and if so, in what manner?
The answers to these issues will determine whether the Section 34
application in the present case was filed within the condonable
period of 30 days.
8. Applicability of the Limitation Act to ACA: Section 29(2) of the
Limitation Act stipulates that where any special or local law
prescribes a period of limitation that is different from the Schedule,
Section 3 of the Limitation Act14 shall apply as if such period is the
one prescribed in the Schedule. Further, Section 4 to 24 shall
apply insofar as, and to the extent to which, they are not expressly
excluded by such special or local law. Therefore, Section 29(2)
14
Section 3 of the Limitation Act reads:
“3. Bar of limitation.—(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every
suit instituted, appeal preferred, and application made after the prescribed period shall be
dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act,—
(a) a suit is instituted,—
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when
the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and
shall be deemed to have been instituted—
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;
(ii) in the case of a counter claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is
presented to the proper officer of that court.”13
imports the provisions of the Limitation Act to special and locallaws that prescribe a different period of limitation, unless there is
an express exclusion contained in such law. Section 29(2) reads:
“29. Savings.—
(2) Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from the
period prescribed by the Schedule, the provisions of section
3 shall apply as if such period were the period prescribed
by the Schedule and for the purpose of determining any
period of limitation prescribed for any suit, appeal or
application by any special or local law, the provisions
contained in sections 4 to 24 (inclusive) shall apply only in
so far as, and to the extent to which, they are not expressly
excluded by such special or local law.”
9. The effect of Section 29(2) has been summarised by this Court
in Mukri Gopalan v. Cheppilat Puthanpurayil15 as follows:
“8. …A mere look at the aforesaid provision shows for its
applicability to the facts of a given case and for importing
the machinery of the provisions containing Sections 4 to 24
of the Limitation Act the following two requirements have to
be satisfied by the authority invoking the said provision.
(i) There must be a provision for period of limitation under
any special or local law in connection with any suit, appeal
or application.
(ii) The said prescription of period of limitation under such
special or local law should be different from the period
prescribed by the Schedule to the Limitation Act.
9. If the aforesaid two requirements are satisfied the
consequences contemplated by Section 29(2) would
automatically follow. These consequences are as under:
(i) In such a case Section 3 of the Limitation Act would apply
as if the period prescribed by the special or local law was
the period prescribed by the Schedule.
(ii) For determining any period of limitation prescribed by
such special or local law for a suit, appeal or application all15
Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5, as affirmed in Bhakra Beas
Management Board v. Excise & Taxation Officer, (2020) 17 SCC 692, paras 13 and 14.14
the provisions containing Sections 4 to 24 (inclusive) would
apply insofar as and to the extent to which they are not
expressly excluded by such special or local law.”
10. Section 43(1) of the ACA fortifies the applicability of the
Limitation Act not only to court proceedings under the ACA but
also to arbitrations. It reads:
“43. Limitations.—(1) The Limitation Act, 1963 (36 of
1963), shall apply to arbitrations as it applies to
proceedings in Court.”
11. This Court in Consolidated Engineering Enterprises (supra)
considered the necessity of a provision in the nature of Section
43(1), when Section 29(2) of the Limitation Act already makes
Sections 4 to 24 of the Limitation Act applicable to special statutes,
including the ACA. It held that the ACA does not prescribe the
period of limitation for various proceedings under the Act, and
deviates from the Limitation Act in specific instances like Section
34(3) and Sections 43(2) to (4).16 By virtue of Section 29(2), the
Limitation Act applies to court proceedings under the ACA. The
purpose of Section 43(1) of the ACA is to extend the applicability
of the Limitation Act to arbitrations also, as these are private
tribunals and not courts. Since the Limitation Act is only
applicable to court proceedings, Section 43(1) is necessary to make
16
Consolidated Engineering (supra), para 42.
15
it applicable to arbitrations in the same manner as it applies to
court proceedings.17
12. Applicability of the Limitation Act to Section 34(3): Once it is
clear that the Limitation Act generally applies to arbitrations and
court proceedings under the ACA, it is necessary to consider its
applicability to Section 34 proceedings. Section 34(3) provides the
limitation period and condonable period to file a Section 34
application, and it reads:
“34. Application for setting aside arbitral award.—
(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 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 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.”
13. From reading the provision, it is clear that an application to
set aside an arbitral award under Section 34 must be within 3
months from the receipt of the award or the date of disposal of a
request under Section 33. This is the period of limitation.18
Further, the court may exercise discretion to entertain the
17
ibid, para 45.
18
State of Goa v. Western Builders, (2006) 6 SCC 239, para 10; Consolidated Engineering Enterprises (supra),
para 19.
16
application, within a further period of 30 days, if sufficient cause
is shown, but not thereafter.19
14. As per Section 29(2) of the Limitation Act, the effect of there
being a different limitation period under Section 34(3) is that:
Section 3 of the Limitation Act applies to proceedings under
Section 34 of the ACA as if the 3-month limitation period is the
period prescribed in the Schedule to the Limitation Act. Further,
Sections 4 to 24 of the Limitation Act apply to determine whether
the application is within the period of limitation, “insofar as, and
to the extent to which, they are not expressly excluded.”.
15. There are two aspects necessary for our consideration at this
point: first, the interpretation of “express exclusion”; and second,
the extent of such exclusion.
16. The mere prescription of a period of limitation that is different
from the Limitation Act, even if mandatory and compulsory, is not
sufficient to displace the applicability of the Limitation Act’s
provisions.20 However, an exclusion of the Limitation Act’s
provisions can be inferred if the nature and language of the
provisions, and the scheme of the special law necessarily exclude
the applicability of one or more of the provisions contained in
19
See State of Maharashtra v. Hindustan Construction Co. Ltd., (2010) 4 SCC 518, para 29.
20
Mangu Ram v. Municipal Corporation of Delhi, (1976) 1 SCC 392, para 7.
17
Sections 4 to 24 of the Limitation Act.21 Thus, as per settled case-
law, an express reference to an exclusion is not essential and the
court can examine the language of the special law and its scheme
to arrive at a conclusion that certain provisions of the Limitation
Act are impliedly excluded.
17. The applicability of Sections 4 to 24, and the extent of their
applicability and exclusion under Section 34(3), has been
considered by this Court in several cases. It is useful to categorise
these cases based on the provision of the Limitation Act under
consideration therein.
18. Section 5 of the Limitation Act22: In the leading judgment of
Popular Construction (supra), this Court considered whether a
court can condone delay beyond 30 days, as specified in the
proviso to Section 34(3), by relying on Section 5 of the Limitation
Act. It considered the expression ‘’but not thereafter’’ in the proviso
to Section 34(3), which it held would amount to an express
21
Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133, para 17; Popular Construction (supra),
paras 8-11; Commissioner of Customs and Central Excise v. Hongo India Pvt Ltd, (2009) 5 SCC 791, para 35.
22
Section 5 of the Limitation Act reads:
“5. Extension of prescribed period in certain cases.—Any appeal or any application, other than
an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of
1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the
court that he had sufficient cause for not preferring the appeal or making the application within
such period.
Explanation.—The fact that the appellant or the applicant was misled by any order,
practice or judgment of the High Court in ascertaining or computing the prescribed period may be
sufficient cause within the meaning of this section.”
18
exclusion within the meaning of Section 29(2) of the Limitation Act.
Hence, Section 5 would not apply as it would render this phrase
redundant if a further period was allowed to be condoned through
reference to Section 5 of the Limitation Act.23
18.1 The Court further considered the scheme and object of the
ACA and held that Section 34(1) provides for recourse against the
arbitral award “in accordance with” sub-sections (2) and (3), which
set out the grounds and the time period for challenging the arbitral
award. Reading the provision as a whole, the Court held that an
application beyond 3 months and 30 days would not be “in
accordance with” Section 34(3), and hence the recourse under
Section 34(1) cannot be availed.24
18.2 Further, the Court also considered the enforceability of the
award under Section 36 of the ACA once the time to make an
application under Section 34 expires.25 Thus, it held that the
scheme of the ACA would result in an exclusion of Section 5 of the
Limitation Act, and therefore, a delay beyond 30 days cannot be
condoned by recourse to Section 5.
23
Popular Construction (supra), para 12.
24
ibid, para 16.
25
ibid.
19
19. Section 12 of the Limitation Act26: This Court in State of
Himachal Pradesh v. Himachal Techno Engineers27 held that
Section 12 of the Limitation Act applies for the purpose of
calculating limitation under Section 34(3), and the same is not
excluded by the provisions of the ACA. It held that the day from
which the 3-month limitation period is to be reckoned must be
excluded as per Section 12(1).28
20. Section 14 of the Limitation Act29: In State of Goa v. Western
Builders (supra), a division bench of this Court held that nothing
in the ACA or in the language of Section 34 excludes the
applicability of Section 14 of the Limitation Act. Hence, the time
spent by a party who was bona fide prosecuting his remedy before
a court that did not have jurisdiction must be excluded while
calculating the prescribed period under Section 34(3). It held that
26
The relevant portion of Section 12 of the Limitation Act reads:
“12. Exclusion of time in legal proceedings.—(1) In computing the period of limitation for any
suit, appeal or application, the day from which such period is to be reckoned, shall be excluded…”
27
(2010) 12 SCC 210.
28
ibid, paras 12, 19.
29
The relevant portion of Section 14 of the Limitation Act reads:
“14. Exclusion of time of proceeding bona fide in court without jurisdiction.—(1) In computing
the period of limitation for any suit the time during which the plaintiff has been prosecuting with
due diligence another civil proceeding, whether in a court of first instance or of appeal or revision,
against the defendant shall be excluded, where the proceeding relates to the same matter in issue
and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like
nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant
has been prosecuting with due diligence another civil proceeding, whether in a court of first
instance or of appeal or revision, against the same party for the same relief shall be excluded, where
such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other
cause of a like nature, is unable to entertain it…”20
when the special law is silent and there is no specific prohibition,it must be interpreted in a manner that advances justice. While
the object of the ACA is to ensure expeditious decisions in
commercial matters through arbitration, Section 43 makes the
entirety of the Limitation Act applicable. The Limitation Act is
excluded only to that extent of the area which is covered under the
ACA, and hence Section 5 is excluded by virtue of the stipulation
of the mandatory 30-day condonable period under Section 34(3).30
21. A three-judge bench of this Court in Consolidated Engineering
Enterprises (supra) also held that Section 14 of the Limitation Act
applies to Section 34(3). Merely because Section 5 of the Limitation
Act stands excluded, does not lead to a conclusion that other
provisions are also excluded.31 Adopting a similar reasoning as
Western Builders (supra), the Court held that there is no provision
in the ACA that excludes the applicability of Section 14 of the
Limitation Act to Section 34 proceedings.32 Further, the Court held
that there is a fundamental distinction between Sections 5 and 14
of the Limitation Act. Section 5 allows the court to exercise
discretion to condone delay, and thereby extends the period of
30
Western Builders (supra), paras 16-25. Followed in Gulbarga University v. Mallikarjun S. Kodagali, (2008) 13
SCC 539.
31
Consolidated Engineering Enterprises (supra), para 20.
32
ibid, paras 23, 27.
21
limitation.33 However, under Section 14, the exclusion of time is
mandatory if certain conditions are satisfied. Exercise of power
under Section 5 is therefore broader than Section 14, as a wide
range of reasons can be put forth to show sufficient cause for
delay.34 Hence, it held that the decision in Popular Construction
(supra) does not mean that Section 14 of the Limitation Act is also
inapplicable to Section 34(3) of the ACA. This decision has been
subsequently followed by this Court in other cases.35
22. Section 17 of the Limitation Act36: In P. Radha Bai v. P. Ashok
Kumar37, this Court held that Section 17 of the Limitation Act does
not enable condonation of delay in a Section 34 application beyond
the 30-day period when such delay is caused due to fraud played
on the applicant party. The Court took note of the applicability of
Sections 12 and 14 of the Limitation Act (discussed above). It held
33
ibid, paras 28, 54.
34
ibid, para 28.
35
Coal India Limited v. Ujjal Transport Agency, (2011) 1 SCC 117; Commissioner, Madhya Pradesh Housing
Board v. Mohanlal and Company, (2016) 14 SCC 199.
36
The relevant portion of Section 17 of the Limitation Act reads:
“17. Effect of fraud or mistake.—(1) Where, in the case of any suit or application for which a
period of limitation is prescribed by this Act,—
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the
fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been
fraudulently concealed from him,
the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud
or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed
document, until the plaintiff or the applicant first had the means of producing the concealed
document or compelling its production…”
37
(2019) 13 SCC 445.
22
that Section 17 only defers the commencement of the limitation
period, but does not extend or break the limitation period.38
However, it held Section 17 to be inapplicable for the following
reasons.
22.1 Under Section 34(3) of the ACA, the limitation period
commences on the date of receipt of award or the date of disposal
of request under Section 33 for correction or an additional award.
However, if Section 17 of the Limitation Act were to apply, the
limitation would commence on the date of discovery of the alleged
fraud or mistake, and the outer limit to challenge the award would
go beyond the mandatory 3 months plus 30 days period.39 Based
on these inconsistencies between Section 17 of the Limitation Act
and the language of Section 34(3), the Court held that there is an
“express exclusion”.
22.2 It also considered the object of the ACA to ensure speedy
dispute resolution and finality to the award; enforceability of the
award under Section 36 of the ACA, once the time to challenge the
award expires; and “unbreakability” of the time limit under Section
34(3), to hold that Section 17 of the Limitation Act is inapplicable.40
38
ibid, para 30.
39
ibid, paras 31.1-31.2.
40
ibid, paras 36-37.
23
23. Section 4 of the Limitation Act: We found it necessary to deal
with the case-law, categorised as per the provisions of the
Limitation Act, due to a certain view at the bar that the provisions
of the Limitation Act are entirely inapplicable to Section 34(3).
Such a view was put forth before the High Court as well as before
us. Through the above discussion, it is amply clear that there is
no wholesale exclusion of the provisions of the Limitation Act in
calculating the period of limitation under Section 34(3). Rather,
each provision’s applicability/exclusion has been individually
tested by this Court, on a case-to-case basis, based on the
language and purpose of the specific provision in the Limitation
Act, the language of Section 34(3) of the ACA, and the scheme and
object of the ACA. It is in this light that we must consider whether
Section 4 of the Limitation Act applies to Section 34(3), and in what
manner. The above context is also necessary to appreciate the
precedents on this issue.
24. Before analysing the case-law, it is relevant to extract Section
4 of the Limitation Act:
“Section 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 re-opens.
Explanation.—A court shall be deemed to be closed on
any day within the meaning of this section if during any24
part of its normal working hours it remains closed on that
day.”We will also extract Section 10 of the GCA to juxtapose these
provisions:
“Section 10. Computation of time.—(1) Where, by any
Central Act or Regulation made after the commencement of
this Act, any act or proceeding is directed or allowed to be
done or taken in any Court or office on a certain day or
within a prescribed period, then, if the Court or office is
closed on that day or the last day of the prescribed period,
the act or proceeding shall be considered as done or taken
in due time if it is done or taken on the next day afterwards
on which the Court or office is open:
Provided that nothing in this section shall apply to any act
or proceeding to which the Indian Limitation Act, 1877 (15
of 1877), applies.
(2) This section applies also to all Central Acts and
Regulations made on or after the fourteenth day of January,
1887.”
(emphasis supplied)
25. As per Section 4, if the ‘‘prescribed period’’, which is defined
in Section 2(j) of the Limitation Act as the period of limitation
computed in accordance with its provisions41, expires on a day
when the court is closed, the application may be made on the day
when the court reopens.
26. This Court in Assam Urban (supra) considered the
applicability of Section 4 of the Limitation Act in a situation when
41
Section 2(j) of the Limitation Act reads:
“2. Definitions.—In this Act, unless the context otherwise requires,—
(j) “period of limitation” means the period of limitation prescribed for any suit, appeal or
application by the Schedule, and “prescribed period” means the period of limitation computed in
accordance with the provisions of this Act;” (emphasis supplied)25
the condonable period of 30 days expired on a court holiday. Thebrief facts are that the appellants received the arbitral awards on
26.08.2003, the 3-month limitation period expired on 26.11.2003,
on which date the court was open. The further condonable period
of 30 days expired during court vacation between 25.12.2003 to
01.01.2004. The application under Section 34 was filed on
02.01.2004, on the date of court reopening. This Court upheld the
dismissal of the Section 34 application on the ground of delay, as
the same could not be condoned.
26.1 First, the Court held that by virtue of Section 43(1), the
Limitation Act applies to matters of arbitration, “save and except
to the extent its applicability has been excluded by virtue of the
express provision contained in Section 34(3) of the 1996 Act”.42
26.2 It then considered the meaning of the expression
‘‘prescribed period’’ in Section 4, to determine whether the
appellants in this case would be entitled to an extension of time.
Reading Section 2(j) of the Limitation Act in the context of Section
34(3) of the ACA, it held that the “prescribed period’’ for an
application to set aside the arbitral award is 3 months. The 30-day
period is not the period of limitation, but the condonable period,
42
Assam Urban (supra), para 9.
26
and is therefore not the “prescribed period’’. Hence, it held that
Section 4 was not attracted to the facts of the case.43
27. Contrary to the interpretation of the judgment put forth by
Mr. Kaul during the hearings, a reading of the entire judgment
does not indicate that the Court in Assam Urban (supra) held
Section 4 of the Limitation Act to be inapplicable. The wording of
para 9 of the judgment makes it clear that the Limitation Act does
not apply only to the extent that its applicability is excluded by an
express provision in Section 34(3). While the Court did not
explicitly deal with whether Section 4 of the Limitation Act was
excluded, a reading of the entire judgment makes it clear that the
Court proceeded on the basis that Section 4 applies. Therefore, we
find it difficult to accept Mr. Kaul’s submission that Section 4 was
held to be excluded in Assam Urban (supra). His further
submission that once the Limitation Act is inapplicable, there was
no occasion for the Court to decide on the applicability of Section
4 only to the prescribed period of 3 months, must also be rejected
for the same reason.
28. The position of law after Assam Urban (supra) is that while
Section 4 of the Limitation Act applies to Section 34(3) of the ACA,
43
ibid, paras 11-14.
27
it only applies in relation to the prescribed period of 3 months. It
does not apply when the condonable period of 30 days expires on
a day when the court is not working.
29. This position of law was subsequently considered and
reiterated in Bhimashankar (supra) as well. Here, the arbitral
award was made on 24.08.2016, the 3-month period of limitation
expired on 24.11.2016, and further 30 days came upto
24.12.2016, which fell during the court’s winter/Christmas
vacation. The Court here considered the applicability of Section 4
of the Limitation Act and Section 10 of the GCA.
29.1 On the issue of Section 4 of the Limitation, it held that the
issue is covered by Assam Urban (supra), where it was held that
the benefit of exclusion of the period when the court is closed is
only available with respect to the “prescribed period of limitation”
and not the period extendable by the court in exercise of its
discretion.44
29.2 To determine the applicability of Section 10 of the GCA, it
considered whether the Limitation Act applies to the ACA. It
specifically rejected the submission that the Limitation Act does
44
Bhimashankar (supra), paras 50-53.
28
not apply. It further referred to Assam Urban (supra) on the extent
of exclusion and held as follows in para 54:
“54. Now, so far as the submission on behalf of the
appellant that the Limitation Act shall not be applicable to
the proceedings under the Arbitration Act is concerned, the
aforesaid has no substance. Section 43(1) of the Arbitration
Act specifically provides that the Limitation Act, 1963 shall
apply to arbitrations as it applies to proceeding in Court.
However, as observed and held by this Court in Assam
Urban, the Limitation Act, 1963 shall be applicable to the
matters of arbitration covered by the 1996 Act save and
except to the extent its applicability has been excluded by
virtue of express provision contained in Section 34(3) of the
Arbitration Act.”
(emphasis supplied)In paras 55 and 56, it discussed Popular Construction (supra) and
Hindustan Construction (supra) on the inapplicability of Section 5
of the Limitation Act and the mandatory nature of the 30-day time
limit for condonation of delay, respectively.
29.3 Finally, in paras 57 and 58, in light of the proviso to Section
10 of the GCA which specifically excludes its applicability to any
act or proceeding to which the Limitation Act applies, the Court
rejected the applicability of Section 10 of the GCA to Section 34(3).
30. The logic of the above reasoning in Bhimashankar (supra),
like in Assam Urban (supra), proceeds on the basis that Section 4
of the Limitation Act applies to Section 34(3), as the same is not
expressly or impliedly excluded. Reading paragraphs 54 to 58
together, it is clear that any apparent contradiction within them,
29
which was raised by Mr. Kaul, does not in fact exist. The judgment
is consistent throughout, in that it necessarily affirms the
applicability of Section 4 of the Limitation Act while calculating
limitation under Section 34(3), and consequently, relies on the
proviso of Section 10 of the GCA to hold that Section 10 of the GCA
does not apply.
31. The applicability of Section 4 of the Limitation Act is also
implicit in the recent decision in State of West Bengal v. Rajpath
Contractors (supra). Here, the award was served on the appellant
on 30.06.2022. The 3-month limitation was reckoned from
01.07.2022, which came upto 30.09.2022. The court vacation
started from 01.10.2022. The further 30-day period ended on
30.10.2022, which was during the court vacation. The application
was filed on 31.10.2022. The Court held that the prescribed
limitation period ended on 30.09.2022, when the court was
working. Hence, by referring to Assam Urban (supra), it held that
the appellant could not benefit from Section 4 of the Limitation Act
as only the 30-day period expired on a court holiday. Hence, it held
that the application was filed beyond the time under Section 34(3)
and the delay could not be condoned.45
45
Rajpath Contractors (supra), paras 10-12.
30
32. Applicability of Section 10 of the GCA: In view of this legal
position, the final issue for our consideration is whether the
appellant can claim the benefit of Section 10 of the GCA. This issue
is also answered against the appellant by virtue of the clear and
express language of the proviso to Section 10 of the GCA.
33. This Court in Bhimashankar (supra) has already considered
this issue and has clearly held that since the Limitation Act applies
to Section 34(3), Section 10 of the GCA is not applicable.46 The
argument put forth by the appellant in its written submissions that
Section 10 of the GCA must apply to the 30-day period stipulated
in the proviso to Section 34(3) also warrants rejection due to the
statutory language of the proviso to Section 10 of the GCA, which
states that it does not apply to “any act or proceeding” to which the
Limitation Act applies. Considering that Section 4 of the Limitation
Act applies to a Section 34 proceeding, the appellant cannot
simultaneously claim benefit of Section 10 of the GCA.
34. Since the applicability of Section 10 of the GCA is rejected at
the very threshold, it is no longer necessary to consider the
interpretation of “prescribed period’’ under Section 10 of the GCA
as including the condonable period, as put forth by this Court in
46
Bhimashankar (supra), paras 57 and 58.
31
Sridevi Datla (supra) in the context of Section 16 of the NGT Act.
The position of law in the context of Section 34(3) of the ACA has
been clearly enunciated in Assam Urban (supra), Bhimashankar
(supra), and Rajpath Contractors (supra). Hence, Sridevi Datla
(supra) can be differentiated on this ground as well.
35. Summarising the Current Position of Law: From the reasoning
and decisions in the above cases, the following conclusions
evidently follow:
35.1 First, Section 4 of the Limitation Act applies to Section 34(3)
of the ACA.
35.2 Second, Section 4 of the Limitation Act benefits a party only
when the “prescribed period’’, i.e. the 3-month limitation period
under Section 34(3) expires on a court holiday. In such a situation,
the application under Section 34 will be considered as having been
filed within the limitation period if it is filed on the next working
day of the court.
35.3 Third, Section 4 of the Limitation Act does not come to the
aid of the party when the 3-month limitation period expires on a
day when the court was working. The 30-day condonable period
expiring during the court holidays will not survive and neither
Section 4, nor any other provision of the Limitation Act, will inure
32
to the benefit of the party to enable filing of the Section 34application immediately after reopening.
35.4 Fourth, since Section 4 of the Limitation Act applies to
proceedings under Section 34 of the ACA, the applicability of
Section 10 of the GCA stands excluded in view of the express
wording of its proviso that excludes the applicability of the
provision when the Limitation Act applies.
36. Highlighting Certain Concerns with the Current Legal Position:
Before parting with this judgment, we find it necessary to express
certain difficulties with the current position of law. In our view, the
above construction of limitation statutes is quite stringent and
unduly curtails a remedy available to arbitrating parties to
challenge the validity of an arbitral award. This must be addressed
by the Parliament.
36.1 The purpose of reading the Limitation Act alongside the ACA
is not to restrict the special remedy under the ACA, but to enable
exercise of such remedy in circumstances as contemplated under
the Limitation Act. In this context, Section 29(2) of the Limitation
Act becomes relevant as it incorporates Sections 4 to 24 of the
Limitation Act in special statutes, including the ACA, to the extent
that its provisions are not expressly excluded.
33
36.2 The language of Section 34(3) read with its proviso does not
expressly or impliedly exclude Section 4 of the Limitation Act and
this interpretation is in consonance with the important principle
contemplated under Section 29(2) to protect rights and remedies.
This Court has already recognised the applicability of Section 4 of
the Limitation Act.
36.3 The substantive remedies available under Sections 34
and 37 of the ACA are, by their very nature, limited in their scope
due to statutory prescription. It is therefore necessary to interpret
the limitation provisions liberally, or else even the limited window
available to parties to challenge an arbitral award will be lost. The
remedy under Section 34 is precious, and courts will keep in mind
the need to secure and protect such remedy while applying
limitation provisions.47 If this limited remedy is denied on stringent
principles of limitation, it will cause great prejudice and has the
effect of (a) denying the remedy, and (b) in the long run, it will have
the effect of dissuading contracting parties from seeking resolution
of disputes through arbitration. This is against public policy.
36.4 However, the difficulty arises as the judgments affirming the
applicability of Section 4 of the Limitation Act equate the
47
Kirpal Singh v. Government of India, 2024 SCC OnLine SC 3814, para 10.
34
expression ‘’prescribed’’ in that section and Section 29(2) of the
Limitation Act only with the main period of limitation (3 months).
The problem with this construction is that the special law, i.e.,
Section 34(3) of the ACA, along with its proviso does not prescribe
the period of limitation in the manner that a period is specified in
the Schedule of the Limitation Act. The statutorily prescribed
period under Section 34(3) of the ACA is 3 months, and an
additional 30 days. In our opinion, it will be wrong to confine the
period of limitation to just 3 months by interpreting it as the
“prescribed period” and excluding the balance 30 days under the
proviso to Section 34(3) as not being the prescribed period through
a process of interpretation.
36.5 The purpose of applying the Limitation Act to special laws
is to vest in the court the power to exercise discretion or to grant
the benefit of exclusion. In such cases, when the Limitation Act
applies, the discretion of the court as contemplated under its
provisions, commencing from Sections 4 to 24, must be given full
effect. In this light, the additional period of 30 days specifically
provided under the ACA loses its efficacy and purpose, and
becomes untenable due to the current position of law. This takes
us to a fundamental question as to the meaning of “express
35
exclusion” of certain provisions of the Limitation Act by the ACA.
In Popular Construction (supra), the Court came to the conclusion
that Section 34(3) proviso “impliedly” – as against the specific
expression “expressly” in Section 29(2) of the Limitation Act –
excludes Section 5 of the Limitation Act.
36.6 Once the Court commenced disapplying provisions of the
Limitation Act to the ACA on the ground of implied exclusions, it
is only a matter of interpretation to include or exclude provisions
from Sections 4 to 24 of the Limitation Act on a case-to-case basis.
Thus, for example, while the Court held that Sections 5 and 17 of
the Limitation Act are excluded from Section 34(3), it came to the
conclusion that Sections 4, 12, and 14 of the Limitation Act are
applicable. In a way, the applicability of provisions from
Sections 4 to 24 of the Limitation Act and the manner in which
they apply are at the doorstep of the court, rather than being
determined by a clear and categorical statutory prescription. This
is perhaps the reason why the Parliament has used the expression
“express exclusion” in Section 29(2) of the Limitation Act. We are
conscious of the fact that it is too late in the day to hold that
“express exclusion” will not include implied exclusion. It is for the
legislature to take note of this position and bring about clarity and
36
certainty. We say no more, for the overbearing intellectualisation
of the Act by courts has become the bane of Indian arbitration.
37. Conclusion: For the reasons set forth above, the application
preferred by the appellant under Section 34 of the ACA stands
dismissed as it was filed beyond the condonable period of 30 days,
which conclusively and absolutely expired on 28.06.2022.
38. For the reasons stated above, we affirm the judgment and
order passed by the High Court in FAO (OS) (COMM) No. 67/2023
dated 03.04.2024 and dismiss the appeal.
39. There shall be no order as to costs.
40. Pending applications, if any, stand disposed of.
………………………………….J.
[PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHI;
JANUARY 10, 2025.
37
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 336 OF 2025
(Arising out of SLP (C) No.9996 of 2024)
MYPREFERRED TRANSFORMATION
AND HOSPITALITY PVT. LTD. AND ANR. …APPELLANT(S)
VERSUS
M/S FARIDABAD IMPLEMENTS PVT. LTD. …RESPONDENT(S)
JUDGMENT
PANKAJ MITHAL, J.
1. The sole issue arising in this appeal for our consideration is
whether the High Court was justified in dismissing the
petition filed by the appellants herein under Section 34 of the
Arbitration and Conciliation Act, 19961 as barred by time.
2. My esteemed brother, in his opinion expressed on the above
issue, has clearly concluded that the petition filed by the
appellants under Section 34 of the A & C Act was beyond
1
Hereinafter referred to as ‘the A & C Act’
1
limitation and was rightly dismissed as barred by time. I fully
agree with the said opinion expressed by my brother on the
basis of the legal interpretation of the various relevant
provisions and the conclusions drawn on its basis. However,
I would like to write a supporting opinion in my own way
based upon the facts of the case at hand.
3. On account of lease agreements entered into between the
appellants and the respondent, certain disputes arose
between them. Therefore, respondent invoked the arbitration
clause whereupon the disputes were referred to arbitration.
An arbitral award was passed on 04.02.2022, a soft copy of
which was supplied to the appellants on the very same day
by e-mail. A signed hard copy of the award dated 04.02.2022
was made available to the appellants on 14.02.2022.
4. The prescribed period of time for filing a petition under
Section 34 of the A & C Act is 3 months from the date on
which the party, filing the petition, had received the arbitral
award or if a request had been made under Section 33 of the
A & C Act, from the date on which the request has been
disposed of by the Arbitral Tribunal. Here, we are not
2
concerned with the second part of Sub-Section (3) of Section
34 of the A & C Act but only with the first part of it which
provides for a limitation of 3 months from the date on which
the party, filing the petition, had received the arbitral award.
Since the appellants in the present case received the arbitral
award on 14.02.2022, the 3 months period prescribed for
filing a petition as per sub-Section (3) of Section 34 expired
on 14.05.2022. By operation of this Court’s order dated
10.01.2022 on account of COVID-19 pandemic, the said
period of limitation stood extended upto 29.05.2022.
5. The day on which the limitation expired for filing a petition
under Section 34 of the A & C Act after giving the benefit of
the COVID-19 pandemic i.e., 29.05.2022, as mentioned
above, happened to be a working day. However, the
appellants filed the petition under Section 34 of the A & C
Act, not on the last day of limitation i.e. 29.05.2022 but on
04.07.2022 when the Courts re-opened after the summer
vacation which were notified between 04.06.2022 and
03.07.2022. The petition filed by the appellants under
3
Section 34 of the A & C Act was accompanied by an
application for condonation of delay.
6. The High Court rejected the delay condonation application
and accordingly dismissed the petition filed by the appellants
under Section 34 of the A & C Act vide order dated
07.02.2023 as barred by limitation. The appeal preferred by
the appellants under Section 37 of the A & C Act before the
Division Bench also met the same fate.
7. The submission is that, though, the period of limitation for
filing a petition under Section 34 of the A & C Act is 3 months
but the court, on being satisfied that the appellants were
prevented by sufficient cause from filing the petition within
the aforesaid 3 months, could have entertained it within a
further period of 30 days. Therefore, the maximum period in
which the petition under Section 34 of the A & C Act, after
condoning the delay, could be entertained is 90+30 days i.e.,
120 days. The said period expired on 28.06.2022 which fell
during the summer vacation of the Court. Therefore, the
petition filed by the appellants on the first day of re-opening
of the Court after summer vacation was within time.
4
8. In order to appreciate the above submission, it may be
pertinent to refer to Section 43 of the A & C Act which
provides for the applicability of the Limitation Act, 1963
which in unequivocal terms states that the Limitation Act
shall apply to Arbitrations as it applies to proceedings in
court. In view of the above provision and the case law on the
subject as discussed by my brother, there remains no doubt
that the Limitation Act is applicable to the arbitration
proceedings as also to court proceedings under the A & C Act.
9. The Limitation Act is based on public policy to bring to an
end the life of a dispute for which appropriate remedy has
not been availed within a time bound period.
10. Section 3 of the Limitation Act, 1963 clearly lays down that
every suit instituted, appeal preferred and application made
to the court after the prescribed period shall be dismissed
even though limitation has not been setup as a defence.
11. Section 2(j) of the Limitation Act defines “period of limitation”
to mean the period of limitation prescribed for any suit,
appeal or application under the Schedule. The Schedule to
the Limitation Act lays down the limitation prescribed inter
5
alia for any suit, appeal or application. However, by virtue of
Section 29(2) of the Limitation Act, the period of limitation for
any suit, appeal or application as contained in the Schedule
of the Limitation Act stands substituted by the period
prescribed in Section 34(3) of the A & C Act for the purposes
of filing a petition under Section 34 of the A & C Act.
12. Section 4 of the Limitation Act provides that if the prescribed
period of limitation of any suit, appeal or application expires
on a day when the court is closed, the suit, appeal or
application can be submitted/presented or made to the court
on the day when the court reopens which on such
presentation would be treated as within time.
13. The period of limitation prescribed for filing a petition under
Section 34 of the A & C Act is 3 months i.e., 90 days. In the
present case, the said period of limitation prescribed by
extending the benefit of COVID-19, expired on 29.05.2022
when the courts were working. Therefore, the appellants were
not entitled to the benefit of Section 4 of the Limitation Act to
permit them to prefer the petition on the re-opening of the
6
court as the period of limitation prescribed had not expired
on the day when the court was closed.
14. The appellants are not entitled even to any benefit as per
Section 10 of the General Clauses Act2, 1897 which also
permits the filing of a petition on the re-opening of the court
where the last day of prescribed period for filing it falls or
expires on the day on which the court is closed. The proviso
to Section 10 in no uncertain terms states that the provisions
of Section 10 of the GC Act shall not apply to any Act or
proceedings to which the Limitation Act applies. In the case
at hand, admittedly in proceedings of arbitration as also to
court proceedings under the A & C Act, the Limitation Act
squarely applies. Therefore, by proviso to Section 10 of GC
Act, Section 10 of the GC Act stands excluded and would not
be attracted to accord any benefit to the appellants.
15. The period of limitation prescribed for instituting a suit or
filing an appeal or making an application has to be
2
Hereinafter referred to as ‘the GC Act’
7
distinguished from a condonable period which cannot be
made part of the period of limitation prescribed.
16. In view of the above discussion, as the period of limitation
prescribed for filing a petition under Section 34 of the A & C
Act expired on a working day and not on a day on which the
court was closed, the appellants were not entitled to file it on
the re-opening of the court after the summer vacation and as
such the petition so filed was patently barred by limitation.
17. Admittedly, as the period of limitation prescribed for filing a
petition under Section 34 of the A & C Act expired on
29.05.2022 whereas the petition was preferred on
04.07.2022 much beyond the period of limitation prescribed
and the condonable period of 30 days stipulated under the
proviso to Section 34(3) of the A & C Act, the petition under
Section 34 of the A & C Act was beyond time and the delay
could not have been condoned. Accordingly, there is no error
or illegality on part of the High Court in dismissing the
petition under Section 34 of the A & C Act as barred by
limitation.
8
18. It would not be out of context for me to mention on the basis
of my experience that practically all new/recent enactments
are deviating from the prescribed period of limitation as per
the Schedule of the Limitation Act and are generally
prescribing its own period of limitation as under the A & C
Act itself. At the same time, statutes further provide that the
delay beyond a certain period cannot be condoned by the
court. This is obviously in deviation to what is prescribed by
Section 5 of the Limitation Act.
19. In my personal opinion, the statutes ought not to provide
different period of limitation for instituting suit, preferring
appeal and making an application, rather all statutes should
stick to a uniform period of limitation say 90 days for
preferring Special Leave Petition/Appeal to the Supreme
Court of India. The courts should also be empowered to
condone the delay if sufficient cause is shown for not filing it
within the time prescribed rather than restricting the
condonable period to a fix period of 15 days or 30 days as
provided in some of the statutes.
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20. This deviation and restriction create confusion and ordinarily
even a lawyer at times fails to notice that a different period of
limitation has been prescribed for preferring an appeal under
a particular statute. Moreover, there may be genuine cases
where the litigant may not be able to approach the court in
time for cogent reasons beyond his control. For example, in
arbitration matters where an award is passed on a particular
date and a copy of it is also served upon the litigating party
but that party happens to be seriously ill and hospitalised for
months together and as such is unable to prefer a petition
under Section 34 within the period of limitation prescribed.
If the delay in challenging the award is not condoned beyond
the period of 30 days, he would suffer great prejudice and
may lose the remedy on a technical ground even though he
may be having a good case on merit. There may also be a
situation where a litigant is facing proceedings by the law
enforcement agencies like the Enforcement Directorate,
Central Bureau of Investigation, etc., and is taken into
custody and as such is unable to take the legal remedy within
the period of limitation prescribed. He avails the remedy only
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after he is out of custody; months after the service of the
order. In such circumstances, in my opinion, the legislature
ought not to confine condoning the delay only for a
prescribed period and not beyond it. Rather it should follow
the principle of condoning the delay as enshrined under
Section 5 of the Limitation Act. This would not only avoid a
good case to be thrown out on the ground of limitation but at
the same time would bring about uniformity in law.
21. I, therefore, suggest to the law makers to keep this in mind
while enacting new Acts and ensure that uniform system is
applied in all enactments, be it present or future.
……………………………….. J.
(PANKAJ MITHAL)
NEW DELHI;
JANUARY 10, 2025.
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