Remanded

State of Jharkhand And Ors. v. Sri Dinesh Prasad

Jharkhand HC10 Feb 2023Arb. Appeal/24/2011

Case brief

AI extract

What is this about?

This arbitration appeal challenges a lower court order dismissing a petition to set aside an arbitral award on limitation grounds. The High Court held that the lower court erred in ignoring the statutory power to condone delay up to 30 days under Section 34(3). The order sets aside the lower court decision and remits the matter for fresh hearing on limitation and merits.

What did the court decide?

Impugned order setting aside petition on limitation grounds set aside; matter remitted to lower court for fresh order after hearing on limitation and merits.

State of Jharkhand And Ors. Vs Sri Dinesh Prasad — Arbitration | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Arbitration Appeal No. 24 of 2011

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The State of Jharkhand through the Special Secretary Building Construction Department, Project Bhawan P.O. P.S. Dhurwa Ranchi

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The Superintending Engineer Public Works Department (Building) Ranchi Division Number 1 Project Bhawan P.O. P.S. Dhurwa Ranchi

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The Executive Engineer Public Works Department (Building) Ranchi Division Number 1 Project Bhawan P.O. P.S. Dhurwa Ranchi … … Objectors / Appellants

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Versus

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Sri Dinesh Prasad, Son of not known to the appellant Civil Contractor, Resident of Kamla kant Lane, Ratu Road, P.O. P.S. Sukhdeo Nagar District - Ranchi … … Respondent

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellants : Mr. Ankit Kumar, Advocate For the Respondent : Mr. A.K. Sahani, Advocate

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27 /10.02.2023 Learned counsel for the parties are present.

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2. This arbitration appeal has been filed for the following relief:

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“ That the petitioner/Appellant is filing the instant Appeal against the judgment and order dated 2.08.2011 passed by the learned Sub Judge – I at Ranchi (hereinafter “Impugned Order”) whereby and whereunder the miscellaneous case bearing Misc. Case No.19 of 2009 preferred by the State against the award passed by the learned sole arbitrator Hon’ble (retired Justice Sri. Anand Prasad Sinha) in Arbitration Case No.10/07 was dismissed only on the ground that the petition preferred by the appellant was a time barred one and further more the Sub-Judge I only considering the aforesaid reason held that the award passed by the sole arbitrator was valid, genuine and not against public policy and further more without considering the fact that the appellant herein had preferred the case against the award dated 06.04.09 vide their appeal which was filed on 08.07.2009 just beyond the time of 90 days.”

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3. Learned counsel for the appellants submits that the present case is governed by Arbitration and Conciliation Act, 1996. He submits that the award involved in the present case is dated 06.04.2009 which is apparent from the award itself wherein it has been recorded that the date of commencement of arbitral proceedings is 06.01.2008, date of completion of hearing is 23.11.2008 and date of award is 06.04.2009. The learned counsel submits that the application for setting aside the award was filed on 08.07.2009. Therefore, the delay in filing the petition for setting aside the award under Section 34 was only three days. He submits that a petition under Section 34 (3) was filed for condonation of delay, but the learned court below has totally ignored the provision of law which empowers the court to condone delay up to

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30 days and has dismissed the petition under Section 34 of the Act of 1996 as barred by limitation by stating that the court did not have the power to condone the delay of even one day. The learned counsel submits that the impugned order has clearly recorded that a petition under Section 34 (3) was filed before the learned court below seeking condonation of delay.

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4. The learned counsel for the respondents, on the other hand, is not in a position to dispute the aforesaid submissions from the memo of appeal and the award annexed by the appellant that the award was passed on 06.04.2009 and a petition under Section 34 of the Arbitration and Conciliation Act, 1996 was filed on 08.07.2009 before the learned court below. Further from the lower court records which has been received, a petition for condonation of delay filed under Section 34 (3) of the Arbitration and Conciliation Act, 1996 has been found. As per the provision of Section 34 of the Arbitration and Conciliation Act, 1996, the period for challenging the award is three months and as per the proviso to sub-Section (3) of Section 34, if the court is satisfied that the applicant was prevented by sufficient cause while making the application within the said period of three months, it may entertain the application within a further period of 30 days, but not thereafter. Thus, the outer limit for challenging an award under Section 34 of the aforesaid Act of 1996 is three months plus 30 days.

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5. The aforesaid aspect of the matter has been totally ignored by the learned court below while holding that it did not have the power to condone delay of even one day. The learned court below has committed serious error in dismissing the petition under Section 34 of the Arbitration and Conciliation Act filed by the appellant merely on the ground that the application having been filed beyond the prescribed period, it did not have the power to condone delay beyond three months from the date on which the party had received the arbitral award and thus, has not decided the case on merit. 6. Consequently, the impugned order is hereby set aside and the matter is remitted back to the learned court below for passing fresh order in accordance with law after hearing the parties on the point of limitation as well as on the merits of the case.

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7. Upon the submissions of the learned counsels for the parties at this stage, it is observed that it will be open to the parties to file appropriate affidavits before the learned court below on the point of condonation of delay, if so advised.

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8. The parties are directed to appear before the learned court below on 13.03.2023 and upon their appearance, the concerned court shall proceed with the matter and dispose of the same within a period of two months from the date of appearance of the parties.

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9. This arbitration appeal is accordingly disposed of.

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10. Pending interlocutory application, if any, stands closed.

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11. Let this order be communicated to the learned court below through e-mail/FAX.

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(Anubha Rawat Choudhary, J.)

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Saurav/

State of Jharkhand And Ors. v. Sri Dinesh Prasad

Case brief

What is this about?

What did the court decide?

State of Jharkhand And Ors. v. Sri Dinesh Prasad

Case brief

What is this about?

What did the court decide?

What the court decided

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