Bhairaveshwara Cool Point Private Limited Vs M/S Grant Thornton India LLP

M/S GRANT THORNTON INDIA LLP NOW 21^st FLOOR, DLF SQUARE, JACARANDA MARG DLF PHASE-II, GURGAON, HARYANA- 122 002. REP. BY ITS ASSOCIATE DIRECTOR MR. KARAN SOOD.

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NC: 2025:KHC:41015-DB COMAP No. 339 of 2025

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HC-KAR

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SRI. VEERANNA G. TIGADI (RETIRED DISTRICT AND SESSIONS JUDGE) ARBITRATOR, ARBITRATION AND CONCILIATION CENTRE, BENGALURU, KANIJA BHAVAN, BENGALURU- 560 001.

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…RESPONDENTS

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(BY SRI. RAGHURAM CADAMBI, ADVOCATE FOR R1)

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THIS APPEAL IS FILED UNDER SECTION 13(1A) OF THE COMMERCIAL COURTS ACT, PRAYING TO SET ASIDE THE ORDER DATED 11.03.2025 PASSED BY THE COURT OF LXXXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH 87) IN COM.A.P. 106/2024. BY ALLOWING THE APPEAL.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and

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HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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NC: 2025:KHC:41015-DB COMAP No. 339 of 2025

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

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Heard the learned counsel appearing on either side.

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We notice that Section 34 application preferred by the appellant had been rejected specifically on the ground of limitation. It is admitted that the award in the instant case was passed on 23.11.2023. It is also an admitted fact that the copy of the award was duly received by the appellant on 23.12.2023. The time for filing the application as provided under Section 34 of the Arbitration and Conciliation,1996 would have expired on the admission of the appellant on 22.03.2024. The further period of 30 days would also expire on 21.04.2024. The application was admittedly filed only on 08.07.2024.

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The learned counsel for the appellant submits that there was sufficient cause for the appellant in not having approached the Section 34 Court within the time as provided under Section 34 of the Arbitration and Conciliation Act and that medical records have been produced to prove that the appellant was in the intensive care unit of a hospital from 04.01.2024 to 10.02.2024.

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HC-KAR

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It is further contended that three years time had

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been granted under the Arbitration and Conciliation Act to initiate the arbitration proceedings and that the strict provisions of Section 34 of the Arbitration and Conciliation Act with regard to the time for filing an application to set aside an arbitral award is therefore not proper. It is further contended that in view of the fact that there was sufficient cause shown by the appellant for the delay in having approached the Section 34 Court, the said application ought to have been considered on merits.

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The learned counsel for the respondents on the other hand contends that there is no provision for extending the time provided under Section 34 of the Arbitration and Conciliation Act for submitting the application. The learned counsel would also place reliance on the decision of the Apex Court in the case of Union of India v/s Popular Construction Co. reported in (2001) 8 SCC 470 and submits that the question stands covered as against the appellant. The learned counsel would contend that the question of application of Section 5 of the Limitation Act to provisions under Section 34

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HC-KAR

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of the Arbitration and Conciliation Act has been decided in the said judgment and the Apex Court has specifically found that in view of the express exclusion as provided under Section 34 of the Arbitration and Conciliation Act, Section 5 of the Limitation Act is not applicable to an application under Section 34. It is further held at paragraph No.16 of the Union of India 's case (supra) which reads as follows:-

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"16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award "in accordance with" sub-section (2) and sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, sub-section (3) would not be an application "in accordance with" that sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that

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"where the time for making an application to set aside the arbitral award under Section 34 has expired... the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court".

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This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time

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HC-KAR

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to set aside the award expired, the court was required to "proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow" (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court's powers by the exclusion of the operation of Section 5 of the Limitation Act."

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We have considered the contentions advanced on

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either side. Section 34 of the Arbitration and Conciliation Act specifically provides a timeline for filing an application. Section 34(1) and (3) of the Arbitration and Conciliation Act and the proviso reads as follows:

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"34. Application for setting aside arbitral award. -

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(1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and subsection (3).

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(2) x x x x x

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(3) An application for setting aside may not be made after three months have elapsed from the date on which the party arbitral award or, request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal:

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HC-KAR

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Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter."

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Learned counsel for the appellant would also rely

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on the decisions of the Apex Court rendered under Section 37 of the Arbitration and Conciliation Act and submits that the said decisions are liable to be applied even to an application under Section 34 of the Arbitration and Conciliation Act.

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We are unable to accept the contentions of the learned counsel for the appellant. It is a trite law that it is not for the Court considering an appeal to decide whether the provisions of the Act providing timelines are proper and legally valid or not. The contentions raised are therefore to be noted only for rejection of the same.

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In view of the specific language of the statue which states that the delay in filing the application may be condoned for a period of 30 days after the expiry of 90 days "and not thereafter", we are of the opinion that the rejection of the application filed by the appellant was perfectly in order. We are unable to accept the contentions raised by the learned counsel

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