Allowed

M/S Baldwin Boys High School v. Prime Edventures Private Limited

Karnataka HC20 Dec 2024COMAP/150/2021

Case brief

AI extract

What is this about?

Schools challenged an arbitral award one day late under Section 34; their condonation application was dismissed below. Holding limitation ran from receipt of the award and finality was achieved only by the later order dated 15.06.2019, and that administrative reasons could justify condonation within the 30-day window, the High Court set aside the dismissal and restored the petition.

What did the court decide?

Impugned order dismissing IA No.I set aside; delay of one day condoned; Section 34 petition restored to original number for decision on merits.

M/S Baldwin Boys High School Vs Prime Edventures Private Limited — Arbitration | Karnataka HC (2024)

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COMAP No.150 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF DECEMBER, 2024

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PRESENT

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THE HON'BLE MR JUSTICE V KAMESWAR RAO

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AND

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THE HON'BLE MR JUSTICE S RACHAIAH

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COMAP NO. 150 OF 2021

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BETWEEN:

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M/S BALDWIN BOYS HIGH SCHOOL, # 14, HOSUR ROAD, RICHMOND CIRCLE, RICHMOND ROAD, BENGALURU - 560 025.

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M/S BALDWIN GIRLS HIGH SCHOOL, RHENIUS STREET, RICHMOND TOWN, BENGALURU - 560 025.

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M/S BALDWIN CO-EDUCATION EXTENSION HIGH SCHOOL, 2^ND CROSS, 10^TH MAIN, 5^TH STAGE, BEML LAYOUT, RAJARAJESHWARI NAGAR, BENGALURU - 560 098.

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…APPELLANTS

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(BY SRI. PRAMOD NAIR, SENIOR ADVOCATE FOR SRI. GAURAV R., ADVOCATE)

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AND:

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PRIME EDVENTURES PRIVATE LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT,1956 AND HAVING ITS REGISTERED OFFICE AT

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NO. 16 AND 17, ’C’ CROSS, 43^RD MAIN, IDEAL HOMES TOWNSHIP, 2^ND STAGE, RAJARAJESHWARI NAGAR, BENGALURU - 560 098, REP. BY ITS DIRECTOR/AUTHORISED SIGNATORY MR. S.K. KHUSHDIL.

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STUDENTS INFORMATION AND LEARNING SYSTEMS, A PARTNERSHIP FIRM, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT NO.263, 3^RD FLOOR, BEML LAYOUT, 3^RD STAGE, RAJARAJESHWARINAGAR, BENGALURU - 560 098 REP. BY ITS PARTNER MR.S.K.KHUSHDIL.

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…RESPONDENTS

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(BY SRI. V. SREENIVASA RAGHAVAN, SENIOR ADVOCATE FOR SRI. P. CHINNAPPA, ADVOCATE FOR R1 AND R2)

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THIS COMAP IS FILED UNDER SECTION 13(1A) OF THE COMMERCIAL COURTS ACT, 2015 R/W SECTION 37(1)(C) OF THE ARBITRATION AND CONCILIATION ACT, 1996 PRAYING TO SET ASIDE THE ORDER ON I.A NO.1 IN COM.A.S.NO.119/2019 PASSED IN LXXXII ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DATED 04.08.2021 AND ALLOW I.A.NO.1 FILED BY THE APPELLANTS IN COM.A.S NO.119/2019 ON THE FILE OF LXXXII ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCHNO.83), ETC.

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THIS APPEAL ALONG WITH IA NO.1/HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 20.12.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, V KAMESWAR RAO J ., DELIVERED THE FOLLOWING:

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CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO AND THE HON'BLE MR JUSTICE S RACHAIAH

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CAV JUDGMENT

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(PER: THE HON'BLE MR JUSTICE V KAMESWAR RAO)

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The challenge in this appeal is to an order dated 04.08.2021 passed by the Court of LXXXII Addl. City Civil and Sessions Judge, Bengaluru (CCH-83) (‘Sessions Judge’ for short) on IA No.I in Com.A.S.No.119/2019, whereby the learned Sessions Judge has dismissed IA No.I filed by the appellants herein under Section 5 of the Limitation Act, 1963. Consequently, the petition filed under Section 34 of the Arbitration and Conciliation Act, 1996 (‘the Act’ for short) is also dismissed with costs to the respondents herein.

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The facts that need to be noted are, the appellants herein had filed Com.A.S.No.119/2019 under Section 34 of the Act challenging the arbitral award dated 05.03.2019, which was corrected on 29.03.2019 and an order dated 15.06.2019 was also passed by the learned Arbitrator. IA No.I which is an application under Section 5

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of the Limitation Act filed seeking condonation of delay of one day in filing the petition. The learned Sessions Judge had primarily framed two points for his consideration:

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(1) Whether the applicants/petitioners were prevented by sufficient cause from making the application within the period of three months?

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(2) What Order?

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The learned Sessions Judge by referring to

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various judgments, has primarily rejected the application by inter alia stating:

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i) the period of limitation for filing a petition under Section 34 shall reckon from the date when the signed copy of the award is delivered to the parties in terms of Section 31(5) of the Act;

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ii) the application filed under Section 33 of the Act having been disposed of on 29.03.2019, the limitation has to be reckoned from that date and admittedly, there is one day delay in filing the petition and hence, the Court has no power to condone the delay even for a single day;

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iii) the application is filed under Section 5 of the Limitation Act and not under Section 34(3) of the Act for condonation of delay, as such, is not maintainable;

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iv) only a memorandum of facts was filed by the Advocate wherein administrative delay has been mentioned as the reason, which shall not be a valid reason to condone the delay beyond statutory period prescribed under Section 34 (3) of the Act.

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Submissions:

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The submission of Sri. Pramod Nair, learned Senior Counsel for the appellant is, the Sole Arbitrator had passed an award dated 05.03.2019 partly allowing the claims of the respondents and rejecting the claim of loss of goodwill. On 22.03.2019, the respondents filed an application under Section 33(1) of the Act requesting the learned Arbitrator to correct the computation or typographical errors. The said application was disposed of by the learned Arbitrator on 29.03.2019 and some modifications were made to the award. He also stated

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that, on 15.06.2019, the learned Arbitrator suo motu carried out a few more modifications in respect of the amounts that the appellants were liable to pay to the respondents and passed the final arbitral award. Aggrieved by the findings of the Arbitrator’s final award dated 15.06.2019, an application under Section 34(1) of the Act was filed by the appellants on 29.07.2019 with a memorandum of facts for condonation of delay of one day, which was dismissed. According to him, the impugned order of the learned Sessions Judge suffers from non-appreciation of the relevant facts and law relating to limitation when there is a challenge to an arbitral award. He also stated, Section 34 provides for calculation of limitation period from the date of receipt of the award. According to him, in view of the aforesaid facts, the arbitral award having been passed on 05.03.2019 and an application under Section 33 of the Act filed by the respondents which was allowed on 29.03.2019 and the learned Arbitrator formally modified his award on 15.06.2019 and the petition having been filed on 29.07.2019, the same is within limitation from

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15.06.2019. He lay stress on the fact that in the order dated 29.03.2019, in all, six errors were corrected, whereas in the order dated 15.06.2019, only three errors were identified and corrected by the learned Arbitrator. So in that sense, the order dated 29.03.2019 is not a final and conclusive one. The conclusiveness to the award was because of the order dated 15.06.2019. In support of his submissions, he has drawn our attention to the order dated 29.03.2019 and 15.06.2019. He do concede to the

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fact that if it is construed that the award dated 05.03.2019 has been corrected/modified on 29.03.2019, then the petition was filed beyond three months but within 30 days. It is on a safer side, the memorandum seeking condonation of delay of one day was filed by the appellants. He stated, the order dated 29.03.2019 was received by the appellants on the same day and as such, the limitation would start running from the next day i.e., 30.03.2019. As per the provisions of Section 34 of the Act, the challenge cannot be made after three months have elapsed, except that if the Court is satisfied that the applicant was prevented by sufficient cause from making

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the application within the period of three months it may entertain the application within a further period of thirty days, but not thereafter. According to Sri. Nair, the said period of three months had expired on 30.06.2019. The petition having been filed on 29.07.2019, the same was within, the 30 days after three months. He also stated that the reasons for not filing the petition within the three months period as supported by the memorandum of facts, was primarily for administrative reasons and the same should have been considered by the learned Sessions Judge in favour of the appellants, thereby condoning the delay in not filing within three months, but within thirty days thereafter and considering the petition filed under Section 34 of the Act on merits. In support of his submissions, he would rely upon the following judgments:

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i) Judgment of the Supreme Court in State of Himachal Pradesh and Another -Vs.- Himachal Techno Engineers and Another [(2010) 12 SCC 210] and Haryana Urban Development Authority, Karnal -Vs.- Mehta Construction Company and Another [(2022) 5 SCC 432] ;

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ii) Judgment of the Delhi High Court in Delhi Development Authority -Vs.- Ajab Singh and Co. [2022 SCC OnLine Del 2236] .

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On the other hand, Sri. V.Srinivasa Raghavan, learned Senior Counsel for the respondents would contest the appeal by stating that the challenge is misconceived and the appeal has been filed with the sole intention to delay and deprive the respondents herein of the money due and payable to it under the arbitral award dated 05.03.2019. According to Sri. Raghavan, it is trite law that an application laying a challenge to the arbitral award under Section 34 of the Act must necessarily be filed within the timeline prescribed under Section 34(3) of the Act. The impugned order has been passed in accordance with the settled principles of law as laid down by this Court and also the Supreme Court in as much as even a day’s delay cannot be condoned in the scheme of the Act and the learned Sessions Judge has rightly dismissed the application filed by the appellants under Section 5 of the Limitation Act.

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He also stated that, the Sole Arbitrator passed the arbitral award on 05.03.2019. On 22.03.2019, the respondents herein filed an application under Section 33 of the Act seeking correction of certain typographical and clerical errors in the award dated 05.03.2019. The appellants vide their letter dated 28.03.2019, had given no objection to the correction sought by the respondents herein and suggested a correction to the stamp duty calculation submitted by the respondents. Accordingly, learned Arbitrator allowed the Section 33 application and the corrections as prayed for were carried out in the award dated 05.03.2019. The corrected award was communicated and made available to the parties on 29.03.2019 itself. According to him, the learned Arbitrator, out of abundant caution, issued an order dated 15.06.2019 informing the parties of his decision on the Section 33 application filed by the respondents. However, he reiterates that Section 33 application was allowed on 29.03.2019 itself and the same is evident from the award as produced by the appellants. Hence, according to him, the petition seeking setting aside of the arbitral award

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must be made within three months from the date when the party making petition has received the arbitral award or if a request has been made under Section 33, then from the date on which that request had been disposed of by the Arbitral Tribunal or within a period of 30 days thereafter upon demonstrating sufficient cause to justify the delay. In other words, it is his submission, Section 33 application filed by the respondents was disposed of on 29.03.2019 and as such the limitation for challenging the arbitral award began to run from 29.03.2019/30.03.2019 and not from 15.06.2019 as sought to be erroneously contended by the appellants. He lay stress on the fact that the appellants having filed the petition only on 29.07.2019, admittedly beyond 3 months 30 days from 29.03.2019 and it is trite law that even a delay of one day beyond the time limit of 3 months 30 days cannot be condoned, the learned Sessions Judge has rightly dismissed the IA No.I filed by the appellants.

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According to him, even the reasons given seeking condonation of delay for administrative reasons, the same

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are vague and has no basis. The appellants have not provided any evidence to substantiate the claims/ averments made in the application. He also stated that the appellants have not even bothered to swear the reasons on affidavit. IA No.I is merely supported by a memorandum of facts filed by the appellant’s Legal Counsel. The reasons given were not cogent or sufficient to discharge the statutory burden cast on the appellants to satisfy the Court that they were prevented by sufficient cause from filing of such petition within three months as provided under Section 34(3) of the Act.

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He also stated that, the appellants themselves

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have pleaded that there is a delay of one day, over and above the condonable period of 30 days provided in the proviso to Section 34(3) of the Act, in filing the petition. If that be so, the learned Sessions Judge could not have condoned the delay of one day beyond the permissible period. According to him, learned Sessions Judge has rightly stated that the Court is powerless to condone the delay after 3 months 30 days have elapsed.

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One of the submissions of Sri. Raghavan is that, after passing the order dated 29.03.2019 disposing of the application under Section 33, the Arbitral Tribunal was rendered functus officio and order dated 15.06.2019 is thus, of no consequence. Be that as it may, it was his submission that the application having been filed under Section 5 of the Limitation Act and not under Section 34(3) of the Act, the learned Sessions Judge has rightly rejected the IA No.I. In support of his submissions, he has relied upon the following judgments:

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i. Judgments of the Supreme Court in:

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a) Simplex Infrastructure Limited -Vs.Union of India [(2019) 2 SCC 455] ;

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b) State of Maharashtra and Another -Vs.Ramdas Construction Company and Another [(2021) 4 SCC 629] ;

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c) Mahindra and Mahindra Financial Services Ltd. -Vs.- Maheshbhai Tinabhai Rathod and Others [2021 SCC OnLine SC 1315] ;

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d) Oriental Insurance Company Limited - Vs.- Tejparas Associates and Exports Private Limited [(2019) 9 SCC 435] ;

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e) Ved Prakash Mithal and Sons -Vs.Union of India [2018 SCC OnLine SC 3181] ;

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f) Union of India -Vs.Popular Construction Co. [(2001) 8 SCC 470] ;

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g) P. Radha Bai and Others -Vs.- P. Ashok Kumar and Another [(2019) 13 SCC 445] ;

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h) Chintels India Ltd. -Vs.Bhayana Builders Pvt. Ltd. [(2021) 4 SCC 602] ;

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i) Government of Maharashtra (Water Resources Department) -Vs.- M/s Borse Brothers Engineers and Contractors Pvt. Ltd. [(2021) 6 SCC 460] ;

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j) Assam Urban Water Supply and Sewage Board -Vs.Subash Projects and Marketing Ltd. [(2012) 2 SCC 624] .

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ii. Judgments of this Court in:

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a) Bangalore Electricity Supply Company Ltd. and Others -Vs.- M/s SPML Infra Ltd. and Others [COMAP No.7/2019 and connected matters , decided on 13.02.2020 ] ;

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b) Shri. Sateesh Bhimarao Kamble -Vs.The Deputy Commissioner and Arbitrator under the National Highways Act, Belgaum and Another [ILR 2013 KAR 4326] ;

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c) Bhimashankar Sahakari Sakkare Karkhane Niyamita Indi Taluk -Vs.Walchandnagar Industries Ltd. [2022 (3) KarLJ 247] ;

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d) Manohar and Others -Vs.National Highway Authority of India and Others [MANU/KA/9275/2019] ;

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e) M/s Eagle MPCC -Vs.- Union of India and Others [WP No.39483/2016 , decided on 27.02.2019 ] .

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iii. Judgments of the Delhi High Court in:

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a) Bharat Sanchar Nigam Ltd. -Vs.- M/s Vindhya Telelinks Pvt. Ltd. [OMP (COMM) 503/209 , decided on 02.12.2019 ] ;

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b) Union of India -Vs.- Wishwa Mittar Bajaj & Sons and Another [2007 SCC OnLine Del 363] ;

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c) Union of India -Vs.- National Project Construction Corp. Ltd. [2018 SCC OnLine Del 8028] ;

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d) Union of India -Vs.- Sunrise Enterprises, Panipat [(2012) ILR II Delhi 763] .

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Analysis:

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Having heard the learned counsel for the parties and perused the record, the issue which arises for consideration is, whether in the facts of this case, the learned Sessions Judge was right in dismissing IA No.I filed by the appellants seeking condonation of delay in filing the petition under Section 34(1) of the Act?

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There is no dispute that the respondents have filed an application under Section 33 of the Act for making certain corrections to computation/typographical errors in the arbitral award dated 05.03.2019 on 22.03.2019. The appellants herein had given their no objection for such corrections. The learned Arbitrator has passed an order making certain corrections on 29.03.2019. The corrections as made by the learned Arbitrator are in the following manner:

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“3. On a perusal of the Award, it is indeed found that the above errors are present and require to be corrected.

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(a). Accordingly, in paragraph no.96 of the award, the amount shown as Rs.1,61,71,950/- shall stand corrected as Rs.1,67,71,950/-.

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(b). In Paragraph no.129 of the award, the amount shown as Rs.2,00,52,000/- shall stand corrected as Rs.2,52,00,000/-.

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(c). In the operative portion of the award, clause no.iv shall be corrected to substitute the amount “Rs.56,60,183/-” with the amount “Rs.58,70,183/-” and the total amount shown as “Rs.63,14,826/-” as “Rs.65,49,114/-”.

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(d). In the operative portion of the award, clause no.vii shall be corrected to substitute the amount "Rs. 70,18,200/-" with the amount "Rs. 88,20,000/-" and the total amount shown as "Rs.78,29,908/-" as "Rs. 98,40,100/-".

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(e). Clause no. ix shall stand corrected as follows:

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Respondent shall reimburse the claimants the arbitrator's fee, the administrative expenses including the additional sitting charges and other expenses in a sum of Rs. 14,86,529/-

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(f). Clause no.x shall stand corrected as follows:

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"The respondent shall reimburse the claimant of the stamp duty of Rs.2,27,932/to be paid on this Award".

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4. The above corrections are carried out in the

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award and the relevant pages have been replaced. Copies prepared with the corrections incorporated and duly signed are to be furnished to the parties.”

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Whereas the order dated 15.06.2019, more

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particularly paragraphs No.3(a) and 3(b) read as under:

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“3. (a) In AC 17/2018 -The total consideration in the Award is INR 1,61,71,950. Whereas, as per the calculation provided, the actual total comes up to INR 1,67,71,950.(2350 students X INR 183 X 183 X 39 = 1,67,71,950).Amounting to a difference of INP 6,00,000). The same stands corrected accordingly.

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b) In AC 20/2018-The total consideration provided is INR 2,00,52,000. Where, as per the calculation provided, the actual total comes up to INR 2,52,00,000 (5600 students X INR 1500 X 3 =2,52,00,000). Amounting to difference of INR 51,48,000. Consequently, the damages awarded would stand at Rs 4,30,86,388/- In so far as the direction to reimburse the stamp duty paid by the claimant, In terms of clause (X) shall stand modified and increased to Rs 2,28,932/- Instead of Rs 2,17,710/-

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Further in addition to Rs 13,66,525/- to be reimbursed to the claimant, on various counts, the respondents shall include the additional sitting fee of Rs1,20,000/- in respect of 8 sittings, at Rs 15000/-, each.”

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The corrections shall be deemed to have been carried out in the body of the Award the and it shall

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be the duty of the respondent to comply as to the additional sums payable.”

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The submission of Sri. Nair by drawing our

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attention to paragraph No.18 of the petition interalia was that on a reading of the order passed on 29.03.2019 and the one communicated on 15.06.2019, it is clear that the contents of both the orders are not identical but at variance. This according to him, is because, (i) the amount of stamp duty said to be payable in the order passed on 29.03.2019 and as per order passed on 15.06.2019, is completely different, (ii) in the order dated 29.03.2019, a total of six errors were corrected, whereas in the order dated 15.06.2019, only three errors were identified and corrected by the learned Arbitrator. In that sense, it is his case that order dated 15.06.2019 is not mere reiteration of the order dated 29.03.2019, but different. The stand of the respondents to paragraph No.18 of the appeal is denial of the averments.

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On perusal of the orders passed on 29.03.2019 and 15.06.2019, it is noted that the stamp duty in the

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order dated 29.03.019 depicts the amount as Rs.2,27,932/-, whereas the order dated 15.06.2019 reflects the amount as Rs.2,28,932/-. In order dated 29.03.2019, it is reflected that the amount to be reimbursed to the respondents by the appellants as Rs.14,86,529/-, whereas on a reading of the order dated 15.06.2019, it is seen the amount is reflected as Rs.14,86,525/-.

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Sri. Nair is right in submitting that there is difference in the errors corrected/depicted in the orders dated 29.03.2019 and 15.06.2019. It follows the finality to the application under Section 33 of the Act was achieved on vide order dated 15.06.2019.

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Having said that, it is not the case of the appellants that they have filed further application after 29.03.2019 to seek correction of the order dated 29.03.2019 and they were waiting for the disposal of the said application. The plea of Sri. Raghavan is as the Section 33 application was decided on 29.03.2019, the limitation to file has expired on 26.06.2019.

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So it need to be decided, whether the petition under Section 34, having been filed on 29.07.2019, pursuant to order dated 29.03.2019, shall be beyond time or not.

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At the outset we must consider from which date the time start running to file a petition under Section 34 of the Act. The Supreme Court in the case of Himachal

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Techno Engineers (supra) on which reliance has been placed by Sri. Nair, more particularly paragraph No.13, has held as under:

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“13. Section 9 of the General Clauses Act, 1897 provides that in any Central Act, when the word “from” is used to refer to commencement of time, the first of the days in the period of time shall be excluded. Therefore the period of “three months from the date on which the party making that application had received the arbitral award” shall be computed from 13-11-2007.”

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From the above, it is clear that the period of three months shall be computed from 30.03.2019. In the same judgment in paragraph No.18, the Supreme Court has also stated as under:

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“18. Therefore when the period prescribed is three months (as contrasted from 90 days) from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending upon the months, it may mean 90 days or 91 days or 92 days or 89 days.”

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The aforesaid conclusion of the Supreme Court makes it clear that the three months’ period would expire in the third month on the date corresponding to the date upon which the period starts. In other words, the period of three months would expire on 30.06.2019. The fact of the matter is the appeal has been filed beyond three months, on 29.07.2019 i.e., on the 29^th day of 30 days period provided in the proviso to Section 34(3) of the Act. So, in that sense, the petition has not been filed after the expiry of 3 months and 30 days, as contended by Mr.Raghavan and so held by the learned Sessions Judge.

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Having said that, it is also settled law that a petition which is filed beyond three months but within 30 days thereafter, the party challenging the award under Section 34(1), has to satisfy the Court that he/she was

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prevented by sufficient cause, from filing the petition within the prescribed period of three months resulting in filing of an application within a further period of thirty days. At this stage we may reproduce the reasons given by the appellant to seek condonation of delay, in the

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memorandum of facts as under:-

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5. Assuming that this Hon'ble Court finds the date of the Award to be 29 March 2019, this application is being preferred to condone the delay of 30 days in filing the petition for the following bona fide reasons.

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(a) The Petitioners are educational institutions, [managed by the Baldwin Education Society). Once the Award was received, the Society's members were involved in several levels of discussions inter se and with their legal counsel, to consider the findings in the Award and to examine the legality and enforceability of the Award under the Arbitration Act. The Society, along with the relevant members of the Petitioner schools, spent significant time to deliberate on the merits filing the petition challenging the Award.

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(b) As the costs involved in litigating the matter are high, and given that the Petitioners are minority education institutions, the Society and the Petitioner schools had to have detailed deliberations and adhere to several internal procedures before deciding to file the present Petition, and this process took time. Since the Petitioner schools were also shut for summer vacation,

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there was some difficulty in coordinating discussions regarding the Award among the decision- makers of the Petitioners.

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(c) After being convinced that the Petitioners have has a good prima facie case in its favour, the Petitioners decided to file the above Petition. The finalization of the requisite legal drafts similarly took a considerable amount of time given the significant amounts involved in the dispute, as well as the internal processes and detailed deliberations that had to be conducted in respect of each Petitioner. The delay in finalising the draft and filing the suit (if any) was caused on account of the bona fide reason stated above.”

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The reasons are primarily relatable to the time taken for the appellants to consider the findings in the award and to examine the legality and enforceability of the award under the Act. In other words the delay occurred because of the time consumed to consider the award and take a decision on the administrative side.

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The submission of Sri. Raghavan is primarily that the administrative delay cannot be the reason to condone the delay. The administrative delays do not constitute sufficient cause under proviso to Section 34(3) of the Act to condone the delay. He has referred to the judgment of the Supreme Court in the case of Simplex

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Infrastructure Limited (supra). In the said judgment, the Supreme Court was concerned with the facts wherein on 27.10.2014, the Arbitrator made an award in favour of the appellant. The respondent received the copy of the award on 31.10.2014. Aggrieved by the award, the respondent filed an application under Section 34 of the Act on 30.01.2015 before the District Judge, Port Blair for setting aside the arbitral award. During the pendency of the proceedings, the appellant had filed an application under Section 9 of the Act before the High Court of Calcutta praying for an injunction on encashment of bank guarantee against the respondent. On 02.02.2016, the District Judge dismissed the respondent’s application under Section 34 of the Act for want of jurisdiction. On 28.03.2016, the respondent filed an application under Section 34 of the Act before the High Court of Calcutta, challenging the arbitral award dated 27.10.2014 along with an application for condonation of delay of 514 days. The respondent justified the delay on the ground that there being a bonafide mistake in filing the application before the wrong forum and the respondent’s counsel

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causing delay due to which necessary formalities were not complied within the prescribed time. On 27.04.2016, the learned Single Judge of the High Court allowed the respondent’s application and condoned the delay of 514 days.

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The issue that was raised before the Supreme Court was whether the learned Single Judge was justified in condoning the delay of 514 days for the respondent to file application under Section 34 of the Act. The case of the appellant before the Supreme Court was that even if the benefit of Section 14 of the Limitation Act is extended to the respondent in filing the application under Section 34 of the Act, there would still be delay of 131 days. The Supreme Court was of the view that the respondent though received the arbitral award on 31.10.2014, but had filed Section 34 petition only on 30.01.2015. On 12.02.2016, the District Judge dismissed the application and on 28.03.2016, the respondent filed application before the High Court under Section 34 of the Act for setting aside the arbitral award. The Supreme Court was

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of the view that the respondent took 44 days in filing the application before the High Court. The finding of the Supreme Court was even if the respondent is given the benefit of provision of Section 14 of the Limitation Act in respect of the period spent in pursuing the proceedings before the District Judge, Port Blair, the petition under Section 34 was filed much beyond the outer period of 90 days. Suffice to state, the said judgment has no applicability to the facts of this case. The respondent before the Supreme Court had pleaded that as the Departmental Office was located at Port Blair, Andamans, it was a time-consuming process for obtaining permission from the Circle Office at Chennai, which resulted in delay. The Supreme Court has negated the said plea by holding that the administrative delay would not be a valid reason to condone the delay that too beyond the statutorily prescribed period under Section 34 of the Act.

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Insofar as Ramdas Construction Company ’s

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case (supra) on which reliance is placed by Sri. Raghavan is concerned, the judgment is on the proposition that the

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delay that has occurred beyond 3 months and 30 days is not condonable. There is no dispute on the said proposition.

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In the case of Wishwa Mittar Bajaj & Sons

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(supra) of the Delhi High Court, as relied upon by Sri. Raghavan for the same proposition that administrative delays do not constitute sufficient cause, is concerned in the said case, an award dated 26.07.2005 was received by the Officer of the Union of India on 28.07.2005. The objections under Section 34 of the Act were filed in the Court on 28.11.2005. The case of the respondent in that

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judgment was, the 3 months and 30 days period had expired on 26.11.2005 and in view of the clear mandate under Section 34(3) of the Act, the period is not condonable. The High Court held that mere fact that the file was carried from one table to another and left there

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for unexplained duration, cannot by itself, a reason to condone the delay, if it was permissible. In fact, there is a finding by the High Court that the Court has no

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jurisdiction to condone the delay which is beyond 30 day’s period after 3 months has elapsed.

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In Bharat Sanchar Nigam Ltd. ’s case (supra) relied upon by Sri. Raghavan for the same proposition, the Delhi High Court has followed the judgment of the Supreme Court in the case of Simplex Infrastructure Limited (supra) by holding that the administrative delay would not be a valid ground to condone the delay beyond the period prescribed under Section 34(3) of the Act.

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Insofar as judgments in the cases of Mahindra and Mahindra Financial Services Ltd. (supra), Oriental Insurance Company Limited (supra) and M/s SPML Infra Ltd. (supra) are concerned, Sri. Raghavan has relied on the proposition that if any period of limitation is prescribed under a special enactment, that period of limitation as prescribed under the special law will govern the limitation and not the provisions of the Limitation Act, 1963. In other words, Section 5 of the Limitation Act, 1963 would not apply to the awards passed under the Act of 1996. Thus, delay in

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challenging the award under Section 34 of the Act cannot be condoned under Section 5 of the Limitation Act, 1963. There is no dispute on that proposition. The power being there, under Section 34(3) of the Act, surely the Court below could have considered the application favourably, but the same on the parameters relevant for consideration under Section 34(3) of the Act.

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Insofar as the judgments in the cases of Shri. Sateesh Bhimarao Kamble (supra) and National Project Construction Corp. Ltd. (supra) are concerned, the same were relied upon by Sri. Raghavan to contend that strict interpretation of the provision, Section 34(3) of the Act need to be given and the Court cannot condone the delay of even a single day beyond 120 days provided under Section 34(3) of the Act.

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In the case of Ved Prakash Mithal and Sons

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(supra) on which Sri. Raghavan has relied upon, the Supreme Court held that the period of limitation for filing a petition under Section 34(3) of the Act starts running from the date on which application filed under Section 33

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of the Act is disposed of by the Arbitrator. Similarly, in the cases of P. Radha Bai (supra), Bhimashankar Sahakari Sakkare Karkhane Niyamita Indi Taluk (supra), Manohar (supra), Sunrise Enterprises, Panipat (supra), Chintels India Ltd. (supra) and

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M/s Borse Brothers Engineers and Contractors Pvt.

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Ltd. (supra), Sri. Raghavan has relied upon the same on the proposition that the proviso to Section 34(3) enables a Court to entertain an application to challenge an award after three months period has expired but only within an additional period of 30 days, but not thereafter to contend that 3 months 30 days is the outer boundary for challenging the award.

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He has also relied upon the judgments in the cases of Assam Urban Water Supply and Sewage Board (supra), Bhimashankar Sahakari Sakkare

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Karkhane Niyamita Indi Taluk (supra) and M/s Eagle MPCC (supra) to contend that the period of 30 days beyond three months which the Court may condone on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the Act is not the

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period of limitation or the prescribed period under Section 4 of the Limitation Act, 1963. Hence, the benefit of Section 4 of the Limitation Act cannot be availed under the proviso to Section 34(3) of the Act.

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Suffice to state, the above judgments referred by Sri. Raghavan would not be applicable to the facts of this case as noted by us above and also in view of our finding above. Even the reliance on the judgments in the cases of Assam Urban Water Supply and Sewage Board (supra), Bhimashankar Sahakari Sakkare Karkhane Niyamita Indi Taluk (supra) and M/s Eagle MPCC (supra) for the proposition that the benefit under Section 4 of the Limitation Act cannot be availed under proviso to Section 34(3) of the Act is concerned, the said issue does not arise for consideration in the case in hand in as much as it is not the case of Sri. Nair that the limitation has expired when the Court was closed, resulting in the filing of the petition under Section 34 of the Act on the day when the Court had re-opened. Hence, the judgments have no applicability to the issue which has arisen for consideration.

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Sri. Nair is justified in relying upon the judgment

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in the case of Himachal Techno Engineers (supra) of which a reference has been made by us in the above paragraphs.

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Insofar as judgment in the case of Mehta Construction Company (supra) is concerned, the same was relied upon by Sri. Nair to contend when a petition under Section 34 has not been filed within three months, but filed before the expiry of 30 days, the delay can be condoned even where the appellant therein had pleaded administrative reasons. Paragraphs No.7 to 14 of the said

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judgment are reproduced as under:

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“7. As per sub-section (3) to Section 34 of the Act, an application for setting aside an award is to be made within three months from the date on which a party filing objections under sub-section (1) to Section 34 has received the arbitral award; or, if a request has been made under Section 33, from the date on which that request has been disposed of by the Arbitral Tribunal. However, the proviso states that the Court may condone delay of a period up to thirty days in filing of the objections if it is satisfied that the applicant is prevented by sufficient cause

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from making an application under Section 34(1) of the Act.

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8. In the present case, it is an accepted position that the application for setting aside of the award dated 20-12-2013 was made on 28-3-2014 accompanied by an application for condonation of delay. The Court, therefore, had the power to condone the eight days' delay, which was less than thirty days, in terms of the proviso to sub-section (3) to Section 34 of the Act. In the application seeking condonation of delay, it was inter alia stated that after receiving a copy of the award at about 6.50 p.m. on 20-3-2014, the appellant had engaged an empanelled advocate and the records pertaining to the arbitration case were constructed and examined. The short delay had also occurred as sanctions and approvals were required from the higher/competent authority.

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9. Given the aforesaid background and the short condonable delay which had occurred, we do not think that the High Court and the Additional District Judge, Karnal were justified in refusing to condone the delay. The application for condonation of delay in filing of the objections should have been allowed.

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10. The learned counsel for the respondent, however, contends that the Additional District Judge, Karnal had also dismissed the objections on merits. We have considered this contention but observe that

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the observation and findings recorded by the Additional District Judge are cryptic and perfunctory. The same is equally true of the reasoning given by the High Court in the impugned order [Haryana Urban Development Authority (HUDA) v. Mehta Construction Co., 2019 SCC OnLine P&H 6257] , which is full of generalisation and does not deal with specific issues and contentions raised by the appellant in the objections. In particular, the objection that the claims of the respondent were barred by limitation.

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(emphasis supplied)

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Similarly, in the case of Ajab Singh and Co. (supra) relied upon by Sri. Nair, the Court had referred to the judgment of the Supreme Court in State of Haryana -Vs.- Chandra Mani [(1996) 3 SCC 132] wherein it was held that certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. It also held, the expression ‘sufficient cause’ should, therefore, be considered with pragmatism in justiceoriented approach rather than sufficient cause for explaining every day’s delay.

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We are of the view that the judgments relied upon by Sri. Nair would be applicable to the facts of this case. In as much, the petition having been filed Under Section 34, though beyond three months but within 30 days, thereafter, surely the court should be little flexible, as after 30 days, the very remedy for the appellant to challenge the award shall not survive or is lost. Hence, we hold that though there was delay in filing a petition under Section 34 of the Act, but the same was within in 30 days having been filed on 29.07.2019, the delay, in filing the petition on 29^th day, is condoned.

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The impugned order passed by the Court of LXXXII Addl. City Civil and Sessions Judge, Bengaluru (CCH-83) on IA No.I in Com.A.S.No.119/2019 is set aside.

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The petition under Section 34 of the Act filed by the appellant on the file of Court of LXXXII Addl. City Civil and Sessions Judge is restored to its original number. The Sessions Judge shall decide the challenge to the award dated 05.03.2019 read with orders dated 29.03.2019/ 15.06.2019 on merits and in accordance with law.

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