Dismissed

The State Of Jharkhand Through The Executive Engineer And Ors. v. Subrata Sasmal And Co. Ltd. Through Its Managing Director Subrata Sasmal And Anr.

Jharkhand HC24 Jan 2020Arb. Appeal/10/2016

Case brief

AI extract

What is this about?

Single judge of Jharkhand High Court rejected a petition for condonation of 389-day delay in filing an arbitration appeal under Section 37 of the Arbitration and Conciliation Act, 1996, relying on Supreme Court precedent limiting such appeals to 120 days.

What did the court decide?

Rejection of I.A. No. 8471 of 2016 for condonation of delay; dismissal of Arbitration Appeal No. 10 of 2016 and other pending interlocutory applications.

The State Of Jharkhand Through The Executive Engineer And Ors… — Arbitration | Jharkhand HC (2020)

¶1

IN THE HIGH COURT OF JHARKHAND AT RANCHI

¶2

Arbitration Appeal No. 10 of 2016 With

¶3

I.A. No. 8471 of 2016

¶4

The State of Jharkhand through the Executive Engineer, Irrigation Division, Kharkai Link Canal Division, Dist: East Singhbhum

¶5

The Chief Engineer, Subernarekha Multipurpose Project, Icha Galudih Complex, Adityapur, District East Singhbhum

¶6

The Superintending Engineer, Barrage Circle, Galudih now substituted by Superintending Engineer, Kharkai Canal Anchal, District East Singhbhum

¶7

… … Applicants/Appellants

¶8

Versus

¶9

Subrata Sasmal & Co. Ltd. through its Managing Director Subrata Sasmal

¶10

Mr. Kashinath Bera, Managing Director of Subrata Sasmal & Co. Ltd., District Midnapur, West Bengal.

¶11

… … Opp. Parties/Respondents

¶12

CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY ---

¶13

For the Appellants : Mr. Rahul Kumar Gupta, Advocate Mr. Akash Bhushan, Advocate : For the Respondents

¶14

¶15

07 /24.01.2020

¶16

1. Counsel for the appellants Mr. Rahul Kumar Gupta along with Mr. Akash Bhushan, Advocate, is present.

¶17

2. This appeal has been preferred against the judgment dated 07.08.2015 passed by learned Civil Judge (Sr. Division) at Ghatshila in Misc. Case No. 1 of 2009 under Section 35 of Arbitration and Conciliation Act whereby the Misc. Case filed for setting aside the award dated 31.08.2008 passed by the sole arbitrator has been dismissed and the award has been confirmed.

¶18

3. Learned counsel for the appellants submits that I.A. No. 8471 of 2016 has been filed in this arbitration appeal under Section 5 of the Limitation Act arising out of the judgment dated 07.08.2015 passed by the learned Civil Judge (Sr. Division) at Ghatshila in Misc. Case No. 1 of 2009. He submits

¶19

¶20

that the proceeding was under the provisions of Arbitration and Conciliation Act, 1996.

¶21

4. After hearing the learned counsel for the appellants, this Court finds that the point regarding condonation of delay in filing an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 is squarely covered by the judgment of the Hon’ble Supreme Court passed in Civil Appeal No. 9244 of 2019 decided on 06.12.2019 wherein it has been clearly observed that so far as the filing of appeal is concerned, Article 116 of the Limitation Act would come into play and ultimately, it has been held in para 5 that a period of 90 days is available to file an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 and the grace period of 30 days under Section 5 of the Limitation Act is available. It has also been held that delay beyond 120 days is not liable to be condoned. The Hon’ble Supreme Court has followed the earlier judgment and order dated 17.09.2018 passed in SLP (C) No. 23155 of 2013 (Union of India Vs. Varindera Const. Ltd.), wherein it has been held as under:

¶22

“… that an appellate proceeding is a continuation of the original proceeding, as has been held in Lachmeshwar Prasad Shukul and Others Vs. Keshwar Lal Chaudhuri and Others, AIR 1941 Federal Court 5, and repeatedly followed by our judgments, we feel that any delay beyond 120 days in the filing of an appeal under Section 37 from an application being either dismissed or allowed under Section 34 of the Arbitration and Conciliation Act, 1996 should not be allowed as it will defeat the overall statutory purpose of arbitration proceedings being decided with utmost despatch.”

¶23

5. Admittedly, in the present case, the delay in filing the appeal is 389 days and considering the judgment passed by the Hon’ble Supreme Court, the delay of 389 days cannot be condoned by this Court, therefore, the petition for condonation of delay being I.A. No. 8471 of 2016, is hereby rejected.

¶24

¶25

6. Accordingly, this arbitration appeal is also dismissed.

¶26

7. Any other pending interlocutory application is also dismissed.

¶27

8. Let a copy of this order be communicated to the learned court below through ‘FAX’

¶28

(Anubha Rawat Choudhary, J.)

¶29

Pankaj