Dismissed

The Project Director Hptdb v. M/S Aks Engineer and Contractors Co.

Himachal Pradesh HC10 Aug 2023OMPM/47/2023

Case brief

AI extract

What is this about?

The High Court dismissed an application seeking to condone delay in filing objections under Section 34 of the Arbitration and Conciliation Act, 1996. The court held that the delay was not excused by state elections and reaffirmed that Section 34 precludes application of the Limitation Act to set aside awards.

What did the court decide?

Application for condonation of delay in filing objections under Section 34 of the Arbitration and Conciliation Act, 1996 dismissed.

The Project Director Hptdb Vs M/S Aks Engineer… — Specific Performance | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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OMP(M) No. 47 of 2023.

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Decided on : 10th August, 2023.

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The Project Director, Himachal Pradesh Tourism Development Board

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...Petitioner.

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Versus

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M/s AKS Engineer &Contractors Co. ... .Respondent.

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Coram:

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The Hon’ble Mr. Justice Satyen Vaidya, Judge.

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Whether approved for reporting?¹

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For the Petitioner: Mr. Atul G. Sood, Advocate. For the respondent: Mr. Vivek Singh Negi, Advocate, vice Mr. Purinder Sharma, Advocate.

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Satyen Vaidya, Judge (Oral).

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By way of instant application, a prayer has been made to condone the delay in filing the objections under Section 34 of the Arbitration and Conciliation Act, 1996 against the Arbitral Award dated 30.06.2022 passed by the Arbitral Tribunal.

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It is averred that a signed copy of award was received by the applicant/petitioner on 4^th July, 2023. Immediately thereafter the copy of award was forwarded to

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1 Whether reporters of the local papers may be allowed to see the judgment?

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…2…

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the concerned department, however, during this period elections to State Legislature were announced and Code of Conduct was imposed. The senior officials of the department remained busy in election duties till 8^th December, 2022. Thereafter, the process was undertaken for filing of objections and the same were finally filed before this Court on 7^th January, 2023.

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Section 34(3) of the Arbitration and Conciliation Act, 1996, provides for limitation to file objections to the arbitral award within three months from the date of receipt of signed copy of award. It is further provided that in case the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the aforesaid period of three months, it may entertain the application within a further period of 30 days but not thereafter.

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The above mandate of law is imperative and admits of no exception. Maximum period within which objections under Section 34 of the Arbitration and Conciliation

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…3…

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Act can be filed is three months plus 30 days thereafter, in case allowed by the Court.

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In the facts of the case, the period of three months as prescribed under sub-section 3 of Section 34 of the Arbitration and Conciliation Act expired on 4^th October, 2022. Even the period of 30 days, for which applicant could have been permitted by virtue of the proviso, as noticed above, expired on 4^th November, 2022. Admittedly, during this period no application was filed seeking extension of period. In these circumstances, the prayer made in the application cannot be allowed.

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Learned counsel for the petitioner has placed reliance on the provisions of Section 43 of the Arbitration and Conciliation Act to contend that the provisions of Limitation Act are applicable to the facts of the case. The argument so raised on behalf of the petitioner deserves to be rejected for the reason that the applicability of Limitation Act under Section 43 of the Arbitration and Conciliation Act has been made to the arbitrations as it applies to the proceedings in the Court. Meaning thereby that the claims in the arbitration

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…4…

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proceedings shall be governed by the same law of Limitation that applies to proceedings in normal suit. Even otherwise, this issue is no more res integra. In Union of India vs. Popular Construction Co. (2001)8 SCC 470, the Hon'ble Supreme Court has held as under:-

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“12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are “but not thereafter” used in the proviso of sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify the result.

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In result, there is no merit in the instant application

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and the same is accordingly dismissed.

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(Satyen Vaidya) Judge

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10^th August 2023. (jai)

The Project Director Hptdb v. M/S Aks Engineer and Contractors Co.

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The Project Director Hptdb v. M/S Aks Engineer and Contractors Co.

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