Delhi High Court
Vasishta Mantena Nh04 Jv & Ors. vs Blacklead Infratech Pvt Ltd on 29 October, 2024
Author: Subramonium Prasad
Bench: Subramonium Prasad
$~61
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 29th OCTOBER, 2024
IN THE MATTER OF:
+ O.M.P. (COMM) 419/2023
VASISHTA MANTENA NH04 JV & ORS. .....Petitioners
Through: Mr. Ashish Kothari and Mr.
Balasubramanian Ramesh,
Advocates.
versus
BLACKLEAD INFRATECH PVT LTD. .....Respondent
Through: Mr. Varun Shankar, Mr. Aryan
Panwar, Mr. Anand Bhushan and Mr.
Ahmed Alam, Advocates.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT (ORAL)
I.A. 42258/2024
1. This is an application for condonation of delay in filing the petition
under Section 34 of the Arbitration & Conciliation Act, 1996.
2. The Petitioner has approached this Court by filing a petition under
Section 34 of the Arbitration & Conciliation Act challenging an Award
dated 24.05.2023 passed by the Sole Arbitrator.
3. Material on record indicates that dispute had arisen between the
Petitioner and the Respondent under an agreement for hire utilization of
Wirtgen Cold Recycler/Stabilizer Unit WR-240 Model 2016 and a Cement
Spreader Model SW16MC for work at its project at Andaman.
4. Disputes arose between the parties regarding payments to be made by
the Respondent. The Respondent filed a petition under Section 11 of the
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Arbitration & Conciliation Act being Arbitration Petition No.140/2020 for
appointment of an Arbitrator and this Court vide Order dated 14.03.2022
appointed an Arbitrator.
5. The petition under Section 34 of the Arbitration & Conciliation Act is
accompanied by an application for condonation of delay in filing the petition
under Section 34 of the Arbitration & Conciliation Act the same has been
objected by the Respondent stating that the challenge has been filed beyond
the period prescribed under the Arbitration & Conciliation Act, 1996.
6. The Award has been passed partly in favour of the Respondent who
was a Claimant before the learned Arbitrator. A preliminary objection has
been raised by the Respondent stating that the challenge to the Award is
beyond the period prescribed under the Arbitration & Conciliation Act and
therefore the challenge cannot be considered.
7. The short question which arises for consideration is whether the
petition under Section 34 has been filed within the time period prescribed
under the Arbitration & Conciliation Act.
8. The Log Information as placed on record indicates that the Petitioner
filed the petition under Section 34 of the Arbitration & Conciliation Act on
21.08.2023 when total 65 pages were filed. The said petition has been filed
within 89 days of the passing of Award. The defects were notified by the
Registry on the same date.
9. Since the petition had been filed without an Award or any documents,
the filing was marked as defective and sent back for re-filing on the very
same date. Re-filing was done on 25.09.2023, thereby some more defects
which were marked on 26.09.2023. The matter was re-filed on 03.10.2023
again with defects and ultimately the defect free filing was done on
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07.10.2023.
10. Learned Counsel for the Respondent contends that the first filing on
21.08.2023 which was without the award is a non-est filing, i.e., it cannot be
taken as a filing at all and the re-filing on 25.09.2023 which even assuming
but not admitting as the correct filing has been made beyond the time
prescribed under Section 34 of the Arbitration & Conciliation Act and
therefore the present petition cannot be considered.
11. Per contra, learned Counsel for the Petitioner contends that the initial
filing was within the period of limitation and was not a non-est filing. He
states that the objections to the petition were cured and the petition was
again filed on 25.09.2023 in proper format containing detailed grounds after
thorough analysis of the impugned Award. The petition was duly stamped
and supported by duly executed affidavit and accompanied by a
vakalatnama and therefore cannot be said that the filing was completely
non-est. The Petitioner places reliance on the judgment passed by this Court
in Oriental Insurance Company Limited v. Air India Limited, 2019 SCC
OnLine Del 11634 for the said proposition.
12. He further states that the Award was passed on 24.05.2023. Section
34 of the Arbitration & Conciliation Act mandates that the application for
setting aside the award should be filed within three months and therefore the
three months period ends on 24.08.2023. He states that the further 30 days
period would commence from 25.08.2023 and ends on 24.09.2023 and since
24.09.2023 was a Sunday, the petition which was filed on 25.09.2023 is
within the period of limitation and therefore this Court has to only consider
the reason for condoning the delay is correct or not and it cannot be said that
the petition has been filed beyond the prescribed period.
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By:RAHUL SINGH
Signing Date:04.11.2024
18:46:44
13. Heard learned Counsel for the parties and perused the material on
record.
14. Section 34 (3) of the Arbitration & Conciliation Act mandates that an
application for setting aside an arbitration Award may not be filed after three
months having elapsed from the date on which the party making that
application had received the arbitral award. The proviso to Section 34(3)
states 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 30 days
and not thereafter.
15. It is now well settled that the application under Section 34 of the
Arbitration & Conciliation Act cannot be filed after a period prescribed
under the Act.
16. In Section 34 of the Arbitration & Conciliation Act, the term used is
that of a ‘month’ and not ‘days’. Admittedly, the award was passed on
24.05.2023 and therefore the petition should have been filed on or before
24.08.2023. It is stated that the initial petition has been filed on 21.08.2023,
which is within the period prescribed under the Arbitration & Conciliation
Act. The said petition has been admittedly filed without the copy of the
Award.
17. A petition under Section 34 of the Arbitration & Conciliation Act is
for challenging the Award. It cannot be said that a challenge to the Award
without the award itself being filed would be a valid filing. Without the
Award, the challenge would become meaningless because unless the Award
is perused by the Court, it cannot test or adjudicate on the correctness of the
Award. An application under Section 34 of the Arbitration & Conciliation
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Act filed without an Award and vakalatnama can only be a bunch of papers
filed only to save the limitation.
18. A Division Bench of this Court in Oil & Natural Gas Corporation
Limited v. Joint Venture of M/s Sai Rama Engineering Enterprises (SREE)
& M/s Megha Engineering & Infrastructure Limited (MEIL), FAO (OS)
(COMM) 324/2019, has observed as under:-
“32. It is material to note that Section 34 of the A&C
Act does not specify any particular procedure for filing
an application to set aside the arbitral award.
However, it does set out the grounds on which such an
application can be made. Thus, the first and foremost
requirement for an application under Section 34 of the
A&C Act is that it should set out the grounds on which
the applicant seeks setting aside of the arbitral award.
It is also necessary that the application be
accompanied by a copy of the award as without a
copy of the award, which is challenged, it would be
impossible to appreciate the grounds to set aside the
award. In addition to the above, the application must
state the name of the parties and the bare facts in the
context of which the applicants seek setting aside of
the arbitral award.” (emphasis supplied)
19. This Court is not going into other defects which have been pointed out
for it is of the opinion that without an Award there cannot be a challenge
under Section 34 of the Arbitration & Conciliation Act. It is not the case of
the Petitioner that he did not have the copy of the Award which he sought to
challenge by way of the present petition. The Award was with the Petitioner
on 24.05.2023 and there is no reason forthcoming as to why the copy of the
Award was not filed. The filing on 21.08.2023 was therefore a non-est
filing.
20. Since the filing on 21.08.2023 is a non-est filing the only question that
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is to be considered is as to whether the filing on 25.09.2023 can be said to be
a filing within the maximum time prescribed under Section 34 of the
Arbitration & Conciliation Act.
21. Taking 24.05.2023 as the terminus a quo, for challenge to the Award,
the application under Section 34 of the Arbitration & Conciliation Act
should have been filed on or before 24.08.2024 failing which the petition
could have been entertained only if it was filed within a period of 30 days
from 25.08.2023, i.e., 24.09.2024.
22. The case of the Petitioner that since 24.09.2023 was a Sunday, it was
filed on 25.09.2023, which was the next available day and therefore the
filing was done within the maximum time prescribed and therefore this
Court has to consider as to whether the delay beyond 25.08.2023 has been
properly explained or not. The Petitioner places reliance on Section 10 of the
General Clause Act and Section 4 of the Limitation Act.
23. This issue as to whether the bar of Section 10 of the General Clause
Act is available in such cases or not is no longer res integra and has been
decided against the Petitioner by the Apex Court in Assam Urban Water
Supply & Sewerage Board v. Subhash Projects & Marketing Limited,
(2012) 2 SCC 624, the Apex Court has observed as under:-
“6. Section 34(3) of the 1996 Act provides that an
application for setting aside an award may be made
within three months of the receipt of the arbitral
award. The proviso that follows sub-section (3) of
Section 34 provides that on sufficient cause being
shown, the court may entertain the application for
setting aside the award after the period of three months
and within a further period of 30 days but not
thereafter.”
24. A perusal of the above said judgment indicates that the benefit of
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By:RAHUL SINGH
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Section 10 of the General Clauses Act is not available while considering an
application of delay after the period of limitation.
25. The said issue has been explained by the Apex Court in
Bhimashankara Sahakari Sakkare Karkhane Niyamita v. Walchandnagar
Industries Limited (WIL), (2023) 8 SCC 453, wherein the Apex Court has
observed as under:-
“50. Section 34(3) of the Arbitration Act and Sections
2(j) and 4 of the Limitation Act, 1963 fell for
consideration before this Court in Assam Urban
[Assam Urban Water Supply & Sewerage Board v.
Subash Projects & Mktg. Ltd., (2012) 2 SCC 624 :
(2012) 1 SCC (Civ) 831] . Even the very issue raised in
the present appeal fell for consideration before this
Court in Assam Urban [Assam Urban Water Supply &
Sewerage Board v. Subash Projects & Mktg. Ltd.,
(2012) 2 SCC 624 : (2012) 1 SCC (Civ) 831] . In the
aforesaid decision, this Court interpreted the aforesaid
provisions and has specifically observed and held that
the benefit of exclusion of period during which Court is
closed is available only when application for setting
aside the award is filed within “prescribed period of
limitation” and it is not available in respect of period
extendable by the Court in exercise of its discretion.
xxx
58. Therefore, in light of the application of the
Limitation Act, 1963 to the proceedings under the
Arbitration Act and when Section 10 of the General
Clauses Act, 1897 specifically excludes the
applicability of Section 10 to any act or proceeding to
which Limitation Act, 1963 applies and in light of the
definition of “period of limitation” as defined under
Section 2(j) read with Section 4 of the Limitation Act
and as observed and held by this Court in Assam
Urban [Assam Urban Water Supply & Sewerage
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Board v. Subash Projects & Mktg. Ltd., (2012) 2 SCC
624 : (2012) 1 SCC (Civ) 831] , benefit of exclusion of
period during which the Court is closed shall be
available when the application for setting aside award
is filed within “prescribed period of limitation” and
shall not be available in respect of period extendable
by Court in exercise of its discretion.”
(emphasis supplied)
26. Similarly, in Shahgufa Ahmed & Ors. v. Upper Assam Polywood
Products Private Limited & Ors., (2021) 2 SCC 317, the issue as to whether
Section 10 of the General Clauses Act can be made applicable for condoning
the delay after the prescribed period of limitation is over and within the
period extended under the said Act, the Apex Court in the said judgment has
observed as under:-
“17. But we do not think that the appellants can take
refuge under the above order in Cognizance for
Extension of Limitation, In re [Cognizance for
Extension of Limitation, In re, (2020) 19 SCC 10 :
2020 SCC OnLine SC 343] . What was extended by the
above order [Cognizance for Extension of Limitation,
In re, (2020) 19 SCC 10 : 2020 SCC OnLine SC 343]
of this Court was only “the period of limitation” and
not the period up to which delay can be condoned in
exercise of discretion conferred by the statute. The
above order [Cognizance for Extension of Limitation,
In re, (2020) 19 SCC 10 : 2020 SCC OnLine SC 343]
passed by this Court was intended to benefit vigilant
litigants who were prevented due to the pandemic and
the lockdown, from initiating proceedings within the
period of limitation prescribed by general or special
law. It is needless to point out that the law of limitation
finds its root in two Latin maxims, one of which is
vigilantibus et non dormientibus jura subveniunt which
means that the law will assist only those who are
vigilant about their rights and not those who sleep overSignature Not Verified
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them.
18. It may be useful in this regard to make a reference
to Section 10 of the General Clauses Act, 1897 which
reads as follows:
“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.”
19. The principle forming the basis of Section 10(1) of
the General Clauses Act, also finds a place in Section 4
of the Limitation Act, 1963 which reads as follows:
“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 itSignature Not Verified
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remains closed on that day.”
20. The words “prescribed period” appear in several
sections of the Limitation Act, 1963. Though these
words “prescribed period” are not defined in Section 2
of the Limitation Act, 1963, the expression is used
throughout, only to denote the period of limitation. We
may see a few examples:
20.1. Section 3(1) makes every proceeding filed after
the prescribed period, liable to be dismissed, subject
however to the provisions in Sections 4 to 24.
20.2. Section 5 enables the admission of any appeal or
application after the prescribed period.
20.3. Section 6 uses the expression prescribed period
in relation to proceedings to be initiated by persons
under legal disability.
21. Therefore, the expression “prescribed period”
appearing in Section 4 cannot be construed to mean
anything other than the period of limitation. Any
period beyond the prescribed period, during which the
court or tribunal has the discretion to allow a person
to institute the proceedings, cannot be taken to be
“prescribed period”.
22. In Assam Urban Water Supply & Sewerage Board
v. Subash Projects & Mktg. Ltd. [Assam Urban Water
Supply & Sewerage Board v. Subash Projects & Mktg.
Ltd., (2012) 2 SCC 624 : (2012) 1 SCC (Civ) 831] ,
this Court dealt with the meaning of the words
“prescribed period” in paras 13 and 14 as follows :
(SCC pp. 627-28)
“13. The crucial words in Section 4 of the 1963 Act
are “prescribed period”. What is the meaning of
these words?
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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 computed 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 arbitral award is three
months. The period of 30 days mentioned in proviso
that follows sub-section (3) of Section 34 of the 1996
Act is not the “period of limitation” and, therefore,
not “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 sub-section (3)
of Section 34 of the 1996 Act being not the “period
of limitation” or, in other words, “prescribed
period”, in our opinion, Section 4 of the 1963 Act is
not, at all, attracted to the facts of the present case.”
27. A Division Bench of this Court in Mypreferred Transformation and
Hospitality Private Limited & Anr. v. Faridabad Implements Private
Limited, 2024 SCC Online Del 2437, has observed as under:-
“28. Mr. Nayar, earnestly contended that there is
inconsistency in the decision of the Supreme Court in
Bhimashankara Sahakari Sakkare Karkhane Niyamita
v. Walchandnagar Industries Limited (WIL)3. He
referred to paragraph 54 of the said decision where the
Supreme Court had reiterated that the provisions of the
Limitation Act would be inapplicable to the extent, they
were excluded by virtue of express provision contained
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in Section 34(3) of the A&C Act. He submitted that if
the provisions of the Limitation Act were expressly
excluded in view of the special provisions relating to
limitation contained in Section 34(3) of the Limitation
Act, the proviso to Section 10 of the General Clauses
Act would be applicable. The said contention appears
attractive but we are unable to accept the same. There
is no ambiguity in the decision in Bhimashankara
Sahakari Sakkare Karkhane Niyamita v.
Walchandnagar Industries Limited (WIL)3. The
Supreme Court has expressly held that Section 10 of
the General Clauses Act is not applicable in respect of
the period of delay, which could be condoned by the
Court in terms of the proviso to Section 34(3) of the
A&C Act. This Court is informed that a petition
seeking review of the said decision is pending before
the Supreme Court. However, that is of little assistance
to the appellants at this stage as undisputedly, the said
decision, unless reviewed, is a binding authority.”
28. The filing on 25.09.2023 was therefore beyond the period of
prescribed limitation and this Court cannot entertain this petition.
29. In view of the above this Court has no other alternative but to dismiss
the petition on the ground that it is barred by time. Resultantly, the
application is dismissed.
SUBRAMONIUM PRASAD, J
OCTOBER 29, 2024
hsk
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By:RAHUL SINGH
Signing Date:04.11.2024
18:46:44