Dismissed

State of Rajasthan-State v. M/S. Gopalram Gumaniram Chaudhary

Rajasthan HC25 Mar 2021CMA/1242/2020

Case brief

AI extract

What is this about?

The High Court of Rajasthan allowed Section 5 condonation of delay in a Section 34 of the Arbitration and Conciliation Act appeal. Relying on Supreme Court precedents, the court held that Section 34(3) bars condonation under the Limitation Act, dismissing the appeal as the Section 34 application was time-barred.

What did the court decide?

The appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996 is dismissed as the application under Section 34 was barred by limitation.

State of Rajasthan-State Vs M/S. Gopalram Gumaniram Chaudhary — Arbitration | Rajasthan HC (2021)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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D.B. Civil Misc. Appeal No. 1242/2020

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State Of Rajasthan-State, Through Chief Engineer, Indira Gandhi Nahar Pariyojana, Bikaner

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Executive Engineer, Kolayat Lift Division, Indira Gandhi Nahar Pariyojana, Bikaner

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----Appellants

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Versus

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M/s. Gopalram Gumaniram Chaudhary, Contractor, 265 Durga Colony, Hanumangarh

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----Respondent

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For Appellant(s) : Mr. Manish Tak. For Respondent(s) : Mr. Pradeep Choudhary.

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HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE MR. JUSTICE ARUN BHANSALI Judgment

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PER HON’BLE BHANSALI, J.

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25/03/2021

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This appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (‘the Act, 1996’) read with Section 13 of the Commercial Courts Act, 2015 (‘the Act, 2015’) has been filed against the order dated 21/11/2019 passed by the Commercial Court, Jodhpur, whereby, the application filed by the appellants under Section 34 of the Act, 1996 have been dismissed as barred by limitation.

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An award dated 22/2/2018 was passed by the sole Arbitrator, which was sent by speed post to the parties on 19/9/2018 and it appears that the same was delivered to the appellant on 26/9/2018. Application under Section 34 of the Act, 1996 was filed on 11/3/2019.

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(2 of 4) [CMA-1242/2020]

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The Commercial Court after hearing the parties came to the conclusion that under the provisions of Section 34 (3) of the Act, 1996, the application could have been filed till 25/12/2018 i.e. within three months from the date of receipt of the award on 26/9/2018 and the same could be entertained within a further period of 30 days as provided in proviso to the said provision. However, as the application was filed even beyond the said period of 30 days, the same was barred by limitation and consequently rejected the application.

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Office has reported the appeal as barred by limitation.

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An application under Section 5 of the Limitation Act has been filed seeking condonation of delay in filing the appeal.

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Learned counsel for the respondent has no objection if the delay in filing the appeal is condoned.

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In view of the submissions made by learned counsel for the respondent, the delay in filing the appeal is condoned.

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Heard on admission.

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Learned counsel for the respondent made submissions that the issue, which arises in the appeal is squarely covered by the judgment of Hon’ble Supreme Court in Union of India vs. M/s. Popular Construction Co. : (2001) 8 SCC 470 and M/s. Simplex Infrastructure Ltd. vs. Union of India : (2019) 2 SCC 455.

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It was submitted that admittedly the application under Section 34 of the Act of 1996 was filed beyond limitation prescribed in Section 34 (3) of the Act, 1996 including the extended period under the proviso and, therefore, the Commercial Court was justified in rejecting the application.

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Learned counsel for the appellants attempted to make submissions that the Commercial Court did not look into the merit

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(3 of 4)

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[CMA-1242/2020]

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of the award passed by the Arbitrator, which was ex-facie contrary to the terms of the agreement, however, he could not point out any distinguishing feature to indicate that the application filed under Section 34 of the Act, 1996 was within limitation as prescribed.

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We have considered the submissions made by learned counsel for the parties and have perused the material available on record.

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The facts are not in dispute that the award was passed by the arbitrator on 22/2/2018, the same was received by the appellants on 26/9/2018 and the application under Section 34 of the Act, 1996 was filed on 11/3/2019 i.e. after 166 days.

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The provisions of Section 34 (3) of the Act, 1996, which provide for limitation for filing application for setting aside of the award, read as under:

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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 making that application had received the arbitral award or, if a 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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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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In terms of the above provisions, the outer limit for filing the application is 120 days from the date of receipt of the award and admittedly, the application has been filed beyond the said period and, therefore, the same was barred by limitation.

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The Hon’ble Supreme Court in the case of Popular Construction (supra) has laid down that the provisions of Section 5

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(4 of 4)

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[CMA-1242/2020]

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of the Limitation Act, in view of the express language of the provisions of Section 34 of the Act, 1996 are not applicable.

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In Simplex Infrastructure Ltd. (supra), the same view was reiterated.

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In view of the above factual and legal position, no case for interference in the order impugned is made out. Once the application was found to be barred by limitation, there was no occasion for the Commercial Court to examine the validity of the award.

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The appeal has no substance and the same is, therefore, dismissed.

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(ARUN BHANSALI),J

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(SANGEET LODHA),J

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9-baweja/-

State of Rajasthan-State v. M/S. Gopalram Gumaniram Chaudhary

Case brief

What is this about?

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State of Rajasthan-State v. M/S. Gopalram Gumaniram Chaudhary

Case brief

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