Dismissed

State of U.P. Thru. Prin.Secy. Public Works Deptt. Secrt. Lko. and Others v. M/S Shanti Construction Thru. Its Partner Sh. Ramesh Kumar Agrawal

Allahabad HC16 Apr 2024ARPL/16/2023

Case brief

AI extract

What is this about?

The High Court dismissed an appeal regarding a Section 34 petition filed under the Arbitration and Conciliation Act. The court held the petition was barred by limitation because the time spent in a wrong forum was excluded under Section 14, and the subsequent filing exceeded the statutory period under Section 34(3).

What did the court decide?

The appeal was dismissed as the petition under Section 34 was barred by limitation.

State of U.P. Thru. Prin.Secy. Public Works… — Execution and Attachment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:30171-DB

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Chief Justice's Court

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Case :- APPEAL UNDER SECTION 37 OF ARBITRATION AND CONCILIATION ACT 1996 No. - 16 of 2023

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Appellants :- State Of U.P. Thru. Prin.Secy. Public Works Deptt. Secrt. Lko. And Others Respondent :- M/S Shanti Construction Thru. Its Partner Sh. Ramesh Kumar Agrawal

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Counsel for Appellants :- Shri Nishant Shukla, Standing Counsel for the Appellants-State.

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Counsel for Respondent :- Shri Pritish Kumar with Shri B.P. Singh, Shri Shantanu Gupta, Advocates for the respondent

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Hon'ble Arun Bhansali,Chief Justice Hon'ble Jaspreet Singh,J.

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The appeal is directed against the order dated 10.01.2023 passed by the Commercial Court No.2, Lucknow whereby the petition filed by the appellants under Section 34 of the Arbitration and Conciliation Act, (for short, 'the Act') has been dismissed as barred by limitation.

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Award dated 19.02.2016 was passed by the Arbitral Tribunal. Aggrieved by it, a petition under Section 34 of the Act was filed by the appellants before the District Judge, Jalaun wherein the said Court on 10.01.2023 came to the conclusion that the territorial jurisdiction lies with the Court at Lucknow and, therefore, the petition was ordered to be returned.

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The appellants, filed a fresh petition, after obtaining certified copies from the record of the petition filed at Jalaun under Section 34 of the Act, before the Commercial Court, Lucknow on 09.08.2018 along with an application under Sections 5 and 14 of the Limitation Act, 1963 seeking condonation of delay. The application seeking condonation of delay was contested by the respondent-claimant wherein it was contended that as the limitation provided under Section 34 of the Act had expired and, therefore, the application being barred by limitation, the same deserves dismissal.

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The Commercial Court after hearing the parties, came to the conclusion that though the petition before the Court at Jalaun was within limitation, the same was ordered to be returned on 07.04.2018 whereafter the same has been filed on 09.08.2018 i.e. after four months and, therefore, the same was barred by limitation and consequently, rejected the same.

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Learned counsel for the appellants made submissions that the

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Commercial Court was not justified in rejecting the petition as barred by limitation as the appellants had filed an application under Sections 5 and 14 of Limitation Act and made out sufficient cause for condonation of delay and, therefore, the order impugned deserves to be quashed and set aside.

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Submissions have also been made that the appellants obtained a certified copy of the order dated 07.04.2018 and certified copy of the petition filed before the District Judge, Jalaun on 28.04.2018 and from the said date, the petition was within limitation and on that count also the order impugned deserves to be set aside.

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Reliance was placed on Government of Maharashtra (Water Resources Department) Represented by Executive Engineer v. Borse Brothers Engineers and Contractors Private Limited, (2021) 6 SCC 460 .

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Learned counsel for the respondent contested the submissions made. It is submitted that the petition filed before the Commercial Court at Lucknow was ex-facie barred by limitation and in terms of provisions of Section 34(3) of the Act as the same was barred beyond the condonable period, the same has been rightly rejected.

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Further submission has been made that the appellants instead of receiving the petition as filed before the Commercial Court at Lucknow have filed a certified copy of the said proceedings before the Commercial Court at Jalaun, which essentially amounts to filing a fresh petition and, therefore also, the rejection cannot be faulted.

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Reliance was placed on M/s. Simplex Infrastructure Limited v. Union of India, AIR 2019 SC 505 .

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We have considered the submissions made by the learned counsel for the parties and have perused the material available on record.

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The facts are not in dispute wherein aggrieved by the award dated 19.02.2016 proceedings were initiated before the District Judge, Jalaun by filing a petition under Section 34 of the Act. The petition remained pending for about two years. When on 07.04.2018, the District Judge, Jalaun came to the conclusion that the territorial jurisdiction to entertain the said petition lies with the Courts at Lucknow and consequently he ordered for return of the petition.

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Apparently instead of receiving the petition pursuant to the

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order of return of the said petition, the appellants obtained certified copy of the said petition as well as the order dated 07.04.2018 on 24.04.2018 and filed the same before the Commercial Court, Lucknow on 09.08.2018.

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The limitation for filing of proceedings under Section 34 of the Act has been provided in sub-section (3) of Section 34 of the Act wherein the same has to be filed within three months from the date of Arbitral Award and the proviso to the said subsection gives further period of thirty days, in case, the Court is satisfied that the applicant was prevented by sufficient cause from filing the petition within a period of three months. The petition was filed before a wrong forum i.e. the District Judge, Jalaun and the same was ordered to be returned to be filed before the appropriate forum, though the period which was spent before the wrong Court, was liable to be excluded in terms of the provisions of Section 14 of the Limitation Act, however, in the present case, even if the said period upto 07.04.2018 when the petition was ordered to be returned is excluded, as the appellants chose to file the petition on 09.08.2018 i.e. after passage of four months, by then the limitation as provided under Section 34(3) of the Act had already expired, therefore, the Commercial Court was justified in rejecting the petition as barred by limitation.

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So far as the reliance placed on the judgment in the case of Borse Brothers (supra) is concerned, the said judgment would have no application to the instant case inasmuch as the above judgment of the Hon'ble Supreme Court deals with condonation of limitation in filing an appeal under Section 37 of the Act and has nothing to do with the limitation as prescribed under Section 34 of the Act.

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Further, the plea raised that the limitation be counted from the date the certified copy was obtained by the appellants, also has no basis inasmuch as once the order dated 07.04.2018 was passed by the Court at Jalaun, the petition was available for being returned and instead the appellants chose to apply for a certified copy and present the certified copy before the Commercial Court at Lucknow and, therefore, based on its own conduct it cannot seek to get a longer period of limitation.

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In view of the above discussions, there is no substance in the appeal, the same is, therefore, dismissed.

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Order Date :- 16.4.2024 Rakesh/-

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(Jaspreet Singh, J.) (Arun Bhansali, CJ.)

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Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

State of U.P. Thru. Prin.Secy. Public Works Deptt. Secrt. Lko. and Others v. M/S Shanti Construction Thru. Its Partner Sh. Ramesh Kumar Agrawal

Case brief

What is this about?

What did the court decide?

State of U.P. Thru. Prin.Secy. Public Works Deptt. Secrt. Lko. and Others v. M/S Shanti Construction Thru. Its Partner Sh. Ramesh Kumar Agrawal

Case brief

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What did the court decide?

What the court decided

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