JUDGMENT A.B. Naik, J.
1. Rule, returnable forthwith. Respective Advocates waives service. With the consent of the respective parties, the matter is taken up for final hearing.
2. This Writ Petition, filed under Article 227 of the Constitution of India and is directed against the judgment and order dated 3rd December, 2003 passed by the learned District Judge, Jalna, thereby dismissing the application filed by the petitioner seeking condonation of delay of 393 days in filing Miscellaneous Civil Petition No. 88/2003, under Section 34(3) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act").
3. The petitioner herein, is a society registered under the Maharashtra Cooperative Societies Act, 1960. The main purpose and object of the petitioner was to crush sugarcane of its members and to produce sugar. The petitioner entered into an agreement with respondent No. 1 i.e. proprietor of M/s Tara Engineers Kolhapur in the year 1991, for erection of factory and installation of machinery. After entering into an agreement, the respondent No. 1 has completed the work assigned. There arose some dispute between the petitioner and respondent. The respondents invoked the arbitration clause. As per the Arbitration Clause, the Commissioner of Sugar M.S., Pune was the arbitrator. After the parties entered into the arbitration proceedings, the sole arbitrator passed an award on 5th April, 2002 directing the petitioner to pay Rs. 33,67,426 within a period of two months from date of award.
4. The petitioner challenged the award by submitting the application under Section 34 of the Act before the District Judge, Jalna. According to the petitioner, in the title clause, it is mentioned that it is filed in the District Court, the application which was filed on 3rd July, 2002 as per the provisions of Section 34(3) of the Act. The limitation to file the application under Section 34 is of three months. However, it is contended that the Office of the District Court, Jalna expressed that the application will lie before the Civil Judge, Senior Dn. Jalna and not in the District Court. It is the contention of the petitioner that on the oral suggestion from the Registry of the District Court, the application under Section 34 was presented before the learned Civil Judge S.D. Jalna. It is contended as the Registry of the District Court has not accepted the application, the petitioner presented the said application by correcting the title clause of the original application and lodged it in the Registry of the Civil Judge Sr. Dn. Jalna on 3rd July 2002. Accordingly, the application was registered as Application No. 89/2002. On the presentation of the application before the Civil Judge S.D. Jalna, notices came to be issued and served on the respondents. The respondent No. 1 appeared in the matter and filed an application raising preliminary objection as to the competency of the Civil Judge to deal with application under Section 34 of the Act, claiming that the learned Civil Judge S.D. lacks inherent jurisdiction to entertain, try and decide the application. Therefore, the respondent No. 1 prayed that a preliminary issue be framed by exercising the jurisdiction conferred on the Court by virtue of Section 9A of the Civil Procedure Code, as applicable to the State of Maharashtra. The said application was heard by the learned Civil Judge, S.D. Jalna who after hearing the parties at length, accepted the preliminary objection raised by the respondents and held that it has no jurisdiction to entertain the application under Section 34 of the Act. On coming to this conclusion, the learned Civil Judge returned the application to the petitioner for presenting it to the Court having jurisdiction. Accordingly, by the order dated 30th July 2003 the learned trial Judge upheld the preliminary objection and returned the application along with all documents to the petitioner, as per Order VII Rule 10 of the Civil Procedure Code. The learned trial Judge directed the parties to take note of the order. It has come on record that the Advocates appearing for the respective parties, have noted the order on the same day i.e. on 30th July, 2003. Accordingly, they endorsed below the order.
5. After the above said order passed by the learned Civil Judge, the proceedings were filed before the District Court at Jalna which was numbered as Misc. Application No. 88/2003. In the said application, an application for condonation of delay came to be filed on 11th September, 2003. The petitioner, in order to seek condonation of delay of 293 days (time spent by the petitioner to prosecute the application before the learned Civil Judge S.D. Jalna), stated in the application that the petitioner was prosecuting the proceedings bona fide in the Court of learned Civil Judge S.D. Jalna. It is contended that the learned Civil Judge by the order dated 30th July 2003 has held that it has no jurisdiction to entertain the application and, therefore, the application came to be returned to the petitioner for filing it is the competent Court having jurisdiction. It is contended that the application which was filed on 4th July 2002 before the learned Civil Judge was within limitation prescribed under Section 34 of the Act. It is contended that before filing of the application before the learned Civil Judge S.D., Jalna, in fact, the application was presented in the Registry of the District Court. However, it was orally informed to the petitioner that the application has to be filed before the learned Civil Judge S.D., Jalna. It is, therefore, contended that the time spent by the petitioner in prosecuting the application before the learned Civil Judge S.D., Jalna deserves to be condoned by exercising the power and jurisdiction vested in the Court, by virtue of Section 14 of the Indian Limitation Act, 1963 (hereinafter referred to as "the Limitation Act"). It was contended that the application which was filed before the learned Civil Judge S.D., Jalna, was within limitation and if the time spent by the petitioner in prosecuting the application before the Civil Court is excluded, the application filed before the District Court is very much within limitation. It is also contended that the point of jurisdiction was decided by the learned Civil Judge on 30th July 2003; and the original application along with the documents were, in fact, returned to the petitioner on 30th August, 2003. It is contended that delay of 393 days in filing the application before the District Court occurred due to the reasons stated in the application; as the petitioner was prosecuting the application with due diligence and the delay caused is not with any motive or intention and, therefore, it was prayed that the delay of 393 days in filing the application before the District Court under Section 34 be condoned.
6. The application came to be opposed by the respondents, by filing their say at Exhs. 4 and Exh. 11 thereby opposed the application for condonation of delay. It is contended that the application is misconceived one, inasmuch as it is not maintainable. It is contended that the delay cannot be condoned as the Limitation Act is not applicable to the proceedings filed under Section 34 of the Act. It is contended that the application which was filed under Section 34 before the learned Civil Judge S.D. Jalna, was on the last date of prescribed period of limitation but, in fact, the application was registered on 7th December 2002 and on preliminary objection raised by the defendant, the issue of jurisdiction was decided on 30th July 2003. It is contended that on the very day the Advocate appearing for the petitioner has noted the order and thereafter about one month, the petitioner has not taken any steps whatsoever to present the application under Section 34 before the competent Court. The filing of application before the District Court on 2nd September 2003, itself was defective and incomplete. The defects were cured only on 15th September, 2003. On the basis of these averments, it is contended that the conduct of the petitioner was not bona fide and the petitioner was not prosecuting the proceedings with due diligence.
7. The respondents further contended that the application under Section 34 was registered by the Registry of the Civil Court on 7th December 2002 and, for the purpose of limitation, the date 7-12-2002 is the date to consider the question of limitation. Therefore, they contended that the application which was filed before the Civil Judge itself was beyond limitation. Hence, it is contended that the application filed by the petitioner be rejected. It is further contended that the defect in the application was cured only on 15th September, 2003 and, as such, the proceedings were filed only on 15th September 2003 and not before that and, therefore, it is contended that the application was hopelessly barred by time and the same be rejected.
8. In addition to the objection for condonation of delay, the respondents also raised the objection as regards lodging of the application without payment of proper court fees, on the basis of the contention raised by the respective parties. The learned District Judge framed two points for determination. After hearing the learned Advocates appearing for the parties, negatived the contention of the petitioner and held that the time spent by the petitioner in prosecuting the application before the Civil Judge S.D. Jalna cannot be excluded and delay cannot be condoned. He also recorded the finding that the application cannot be registered without sufficient court fees. In course of the judgment, the learned District Judge, Jalna, considered the provisions of Section 34 of the Act and, on considering the provisions of Section 34(3) and the various judgments cited before him, he came to the conclusion that the delay in preferring the application cannot be condoned as the provisions of Sections 5 and 14 of the Limitation Act are not applicable.
9. The learned District Judge, on merit, also, held that the delay is not properly explained. The learned District Judge also held that the application filed under Section 34 of the Act is in the nature of the appeal and provisions of Article 4 of the Bombay Court Fees Act, 1959 as amended are attracted and the ad valorem Court fees was leviable and as the ad valorem court fee on the amount of Rs. 33,67,426 was not paid. Thus, the learned District Judge also accepted the objection of the respondents about the Court fee and held that the application was not duly filed.
10. Shri G.G. Vayal, instructed by Shri V.D. Salunke, the learned Advocate appearing for the petitioner has raised following contentions before me. He contended that the learned District Judge committed manifest error in rejecting the application for condonation of delay. He submitted that the learned District Judge proceeded on hyper-technicalities and dismissed the application, that too without considering the stakes involved in the dispute. He submitted that there are several grounds available to the petitioner to challenge the validity of the award. On dismissing the application of the condonation of delay, the valuable right is taken away on the basis of mere technicalities. Shri Vayal, further, submitted that on factual aspect if considered in proper perspective, there will be no delay in filing the application before the District Court, at all. He contended that Section 34(3) of the Act limitation prescribes three months time for filing such application. He submitted that the said section further empowers the Court to condone the delay if sufficient cause is shown by the applicant. In the present case, he submitted that, in fact, the application was lodged before the District Judge on 4th July, 2002, but the Registry of the District Court did not accept the application and, as such, on the basis of the oral objection raised by the Registry of the District Court, on the same day, the application was presented before the Civil Judge, Sr. Dn. Jalna. Therefore, he contended that the presentation of the application before the learned Civil Judge was in time and the Civil Court held that it has no jurisdiction and accordingly, the application came to be returned. Therefore, he submitted that the time spent from 4th July, 2002 till the learned Civil Judge passed an order on 30th July, 2003 and further till papers are received by the petitioner on 30th August, 2003 is to be excluded, under Section 14 of the Limitation Act. He, therefore, submitted that this aspect has not been properly appreciated and considered by the learned District Judge, He further submitted that the provisions of Section 14 of the Limitation Act are attracted in the present proceedings and the delay is required to be condoned. He contended that by virtue of Section 43 of the Act, the provisions of the Limitation Act are made applicable and, therefore, he contended that by virtue of Section 43 of the Act, the Court gets the jurisdiction to condone the delay in filing the application under Section 34 of the Act; hence he contended that the learned District Judge, therefore, proceeded on wrong assumption that the delay cannot be condoned, by invoking provisions of Section 14 of the Limitation Act. He, therefore, submitted that considering the stakes involved in the matter and in the interest of justice, the delay is required to be condoned. He, therefore, prayed that this Court may consider the case on merit and condone the delay. He further submitted that the Advocate appearing for the petitioner noted the order passed by the learned Civil Judge, but the papers were actually returned on 30th August 2003 and the same were presented before the learned District Judge on 2nd September, 2002. He, therefore, submitted that till the papers were returned on 30th August, 2003, the time spent by the petitioner before the learned Civil Judge from the date of presentation till the date of receipt of the papers i.e. 30th August, 2003 has to be excluded in computing period of limitation.
11. Per contra, Shri R.N. Dhorde, learned Advocate for the respondent No. 1, supported the order contending that, "whether the time spent by the petitioner in prosecuting the application before the learned Civil Judge S.D., Jalna can be excluded or not by the Court under Section 14 of the Limitation Act", stand concluded by the judgment of the Division Bench of this Court. He contended that the point as raised by the petitioner is no more res integra in view of the Division Bench judgment of this Court in the case of HMP Engineers Limited and Ors. v. Ralies India Limited and Ors. reported in 2003(4) Mh.LJ. 931. He contended that in view of the judgment of the Division Bench of this Court, wherein the Division Bench on identical facts has held that the Court hearing an application under Section 34 has no jurisdiction to condone the delay, by invoking Section 14 of the Limitation Act. Shri Dhorde, further, submitted that on merit also, the delay cannot be condoned. He submitted that the Advocate appearing for the petitioner has noted the order passed by the learned Civil Judge on the very day. He submitted that the learned Civil Judge has directed the parties to note the order and, accordingly, the Advocate for the petitioner having noted the order, put his signature below the order passed by the learned Civil Judge. (This fact has been accepted by the learned Advocate for the petitioner). He, therefore, submitted that on 30th July, 2003, the petitioner, through his Advocate, came to know about the order and, therefore, on the same day, the Advocate should have received the papers from the Registry of the Civil Court on that day itself and should have filed it in the District Court as it is. Therefore, he submitted that admittedly, the proceedings were filed before the District Court. Only on 2nd September, 2003 and in the entire application, there is no explanation as to why the papers were not received by the petitioner from the Court of Civil Judge S.D., Jalna, from 30th July, 2003 to 30th August, 2003. He submitted that the learned District Judge has also appreciated this fact and by elaborate reasons, has held that there is no proper explanation coming from the petitioner and, as such, there is no explanation tendered by the petitioner to get the delay condoned. He, therefore, submitted that the learned District Judge was justified in rejecting the application. Shri Dhorde, learned Advocate for the respondent No. 1 brought to my notice the observation made by the learned District Judge in respect of conduct of petitioner after the order dated 30-7-2003 and considering this aspect, the learned District Judge held that false reasons are assigned. On these aspects, the learned Dist. Judge came to the conclusion that the delay is not properly explained. He further submitted that on the basis of the averments of the parties and the record that is produced before the learned District Judge, he, held that the delay is not properly explained and refused to exercise its discretion in favour of the petitioner. Therefore, he submitted that there are no compelling reasons for this Court to take a different view of the matter in a petition filed under Article 227 of the Constitution of India. He submitted that, on facts even if two views are possible, then this Court may not disturb the view taken by the learned District Judge. He submitted that the act of the petitioner is not bona fide and the petitioner was not diligent enough in prosecuting the proceedings before the Courts below. He submitted the reasons assigned and view taken by the learned District Judge not being perverse and arbitrary, on the contrary, it being just and proper, this Court may not interfere in the said order in the jurisdiction conferred on this Court under Article 227 of the Constitution of India.
12. Shri Bachate, Advocate instructed by Shri R, B. Raghuwanshi, learned Advocate for respondent No. 2, adopted the arguments advanced by Shri R. N. Dhorde, Advocate.
13. In reply, Shri Vayal, learned Advocate for the petitioner, submitted that though the Division Bench in HMP Engineers Limited (supra) has held that the provisions of Section 14 of the Limitation Act cannot be invoked, the Division Bench was considering the scope and ambit of Section 34(3) of the Act. He submitted, unfortunately, the attention of the Division Bench was not drawn to the provisions of Section 43 of the Act. He submitted that by virtue of Section 43 of the Act, the provisions of the Limitation Act, has been made applicable to the proceedings taken under the Act. He submitted that the Division Bench judgment is not an authority for the proposition which is being contended by the respondents. He submitted that if the attention of the Division Bench was drawn to Section 43 of the Act, the Division Bench would have taken a different view. He, therefore, submitted that on this aspect, this Court shall consider whether the judgment of the Division Bench is to be applied. He brought to my notice the order passed by my learned Brother Deshpande, J. on 17th December 2003 whereby he opined that the judgment of the Division Bench has not taken into consideration Section 43 of the Act. On the basis of this observation, the learned Advocate submitted that the judgment of Division Bench is to be considered. It is to be noted that the observations are made by brother Deshpande, J. while hearing the petition at the motion hearing. The learned Judge while issuing notice, observed thus :
"My attention is invited to a judgment of learned single Judge Justice F. I. Rebello reported in 2003(3) Mh.LJ. 853. The learned counsel for respondent points out that the said judgment is reversed by a Division Bench vide judgment reported in 2003(4) Mh.LJ. 931. Perusal of the said judgment reveals that the Division Bench has not considered the effect of Section 43 of the Arbitration Act."
14. Shri Vayal therefore, submitted that the learned single Judge of this Court was of the prima facie view that the attention of the Division Bench was not focussed on Section 43 of the Act. Hence, he submitted that the judgment of the Division Bench has to be considered in the light of the provisions of Section 43 of the Act.
15. It is to be noted that in this petition, the petitioner has not challenged the finding that has been recorded by the learned District Judge on the Point No. 2. Shri Vayal has not made any submission on that point. The points which are framed in the practice note (Synopsis) are in respect of the scope and ambit of Section 34, 43 of the Act vis-a-vis Section 14 of the Limitation Act. Therefore, I would confine myself to find out whether the provisions of Section 14 of the Limitation Act are applicable in an application filed under Section 34 of the Act and whether by virtue of Section 43, Limitation Act applies to the proceedings before the Court under Section 34 of the Act.
16. I am of the firm view that so far as the invoking of Section 14 of the Limitation Act, before the proceedings under Section 34 is no more res integra in view of the Division Bench judgment in HMP Engineers (supra) so far as this Court is concerned, as the learned Advocated Shri Vayal tried to distinguish the said judgment by relying on Section 43 of the Act. Let me consider this submission.
17. The facts in HMP Engineers (supra) and in the present case are strikingly similar. The case before the Division Bench falls under a short compass. The award by the Arbitration Tribunal came to be passed on 31st October, 2001. The appellant-HMP Engineers challenged the said award by filing the petition on 20th December, 2001 within the period prescribed under Section 34 of the Act, before the High Court at Delhi. An application was moved for seeking correction to the award before the Arbitrators. Accordingly the award was corrected on 22nd December 2001. There was subsequent application for correction of award and the award was again corrected on 29th December, 2001. The respondents before the Delhi High Court raised an objection that the Delhi High Court has no jurisdiction to entertain the petition as the Delhi High Court was not the Court within the meaning of Section 2(e) of the Act. The Delhi High Court on hearing the parties, passed an order on 18th April, 2002, to the effect that it has no jurisdiction and accordingly it returned the papers to the appellant to present the proceedings before the competent forum. The papers were returned to the appellants by the Delhi High Court on 18th May, 2002 and after return of the papers, the petition was presented before this Court on 22nd August, 2001. A notice of motion for condonation of delay came to be filed on 18th December, 2002. The learned single Judge (Rebello, J.) relying on the judgment of the Apex Court in Union of India v. Popular Construction Co., came to the conclusion that the Popular Construction case was confined to Section 5 of the Limitation Act. The learned single Judge held that the provisions of Section 14 of the Limitation Act are not excluded while considering the provisions of the Act insofar as excluding time in presenting the petition which was filed in time or within the period provided by the Court. Accordingly, the learned single Judge held that even if the period of 20th December, 2001 to 18th May, 2002 is excluded, the petition filed before this Court was not within the period of limitation as the appellant has not amended the petition by challenging the award as amended on 22nd December, 200-1 and 29th December, 2001 and, consequently, the learned single Judge dismissed the notice of motion. The appeal was carried before the Division Bench against the judgment of the learned single Judge. The question fell for consideration before the Division Bench as to whether considering the provisions of Section 14 of the Limitation Act, the time taken in the proceedings before the Delhi High Court where it was filed which has no jurisdiction, can be excluded by taking recourse to Section 34(3) of the Act read with Section 29(2) of the Limitation Act and on considering the judgment of the Apex Court, the Division Bench came to the conclusion that the proceedings of Section 14 of the Limitation Act, 1963 do not govern the filing of the petition under Section 34 of the Act and, accordingly, the Division Bench disposed of the appeal. The Division Bench on considering the scope and ambit of Limitation Act as well as the Act, has reached to above conclusion. The judgment being of a Division Bench and has a binding precedence I have to follow it. I am of the opinion that in view of the judgment of the Division Bench in HMP Engineers Limited, the order passed by the learned District Judge in holding that the provisions of Section 14 of the Limitation Act are not attracted to an application under Section 34(3) of the Act, and dismissed the application, being just and proper, no interference is called for.
18. Let me consider the contention of Shri Vayal that the attention of the Division Bench was not drawn to provisions of Section 43 of the Act and if would have brought to the notice, he contended that the learned Judges of the Division Bench might have taken a different view. Shri Vayal contended that provisions of Section 34 read with Section 43 of the Act, by which the provisions of Limitation Act are made applicable to the proceedings under the Act and, therefore, he submitted that this Court may consider the effect of Section 43 of the Act on the proceedings under Section 34 of the Act. In order to appreciate the above-said contention it would be appropriate to refer to both Sections 34 and 43 of the Act.
"34. Application for setting aside arbitral award. -- (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 Sub-section (3).
(2).........
(a).........
(i)...
(ii)
(iii)
(iv)
(v)
(b).........
(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 :
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.
(4)........."
Section 43 of the Act reads thus :
43. Limitation. -- (1) The Limitation Act, 1963 (XXXVI of 1963) shall apply to arbitrations as it applies to proceedings in Court.
(2) For the purpose of this section and the Limitation Act, 1963 (XXXVI of 1963), an arbitration shall be deemed to have commenced on the date referred in Section 21.
(3) Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper.
(4) Where the Court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the Court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (XXXVI of 1963) for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted."
19. Having considered the abovesaid two provisions, it is not possible for me to accept the contention of Shri Vayal that the provisions of Limitation Act as incorporated by Section 43 are applicable to the proceedings under Section 34 of the Act. The opening word of Section 43 are self-indicative as it says "that it shall apply to arbitrations as it applies to the proceedings in the Court". Section 43 of the Act is pari materia with the provisions of Section 37 of the Arbitration Act, 1940. Section 43 makes it very clear that the Limitation Act will apply to the arbitrations. The word "arbitration" is defined under the Act 2(1)(a), so as to mean, "any arbitration whether or not administered by permanent arbitral institution".
20. Section 43 the Act will be applicable to the arbitrations and not to the proceedings before the Court taken under Section 34 of the Act. An useful reference can be made to the scope of Indian Limitation Act. This (Act) primarily applies to suits, appeals and applications and it has in term no application to the "arbitration proceedings" as it is not a suit. Section 3 of the Limitation Act provides that "subject to the provisions contained in Section 4 to 24 (inclusive) every suit instituted, appeal preferred, and applications made after the prescribed period shall be dismissed although the limitation has not been set up as defence. The proceeding before the Arbitrator/s is not a suit, appeal or application and in terms of Section 3 can have no application thereto. To overcome this aspect, Section 43 is incorporated in the Act.
21. It is well settled that expiry of the period of limitation prescribed for a suit does not destroy the right; it only bars the remedy for enforcement of a right in a Court of law. It cannot, therefore, be said that the provisions of the Limitation Act prevent an arbitrator/s or Arbitral Tribunal from adjudicating upon the claim which if brought before the Court of law may be barred by limitation, but it may proceed to consider at times even to entertain a claim which is barred by period of limitation. Therefore, in my opinion, the arbitral proceedings are not suit and the arbitral Tribunal is not a Court. By Section 43 of the Act, the provisions of Limitation Act are made applicable to the arbitrations. The proceedings before the Arbitrator and the proceedings before the Court under Section 34 cannot be equated and, therefore, Section 43 cannot be taken help of in construing Section 34(3) of the Act.
22. The Division Bench in HMP Engineers (supra) has considered the very issue which is raised before me and, in my judgment, the contention that is raised by the learned Advocate that if the provisions of Section 43 were brought to the notice of the Division Bench, the view would have been different cannot be accepted and, in my judgment, the provisions of Section 43 of the Act are only attracted to the proceedings before the arbitrators and the proceedings under Section 34 of the Act are not the proceedings which are referred to under Section 43 of the Act. The purpose of Section 43, in my opinion, as indicated by me above, and, therefore, the Arbitrator before whom the proceedings were brought the claims which were barred by limitation have to be dismissed and for that purpose Section 43 is to be construed and interpreted. Therefore, in my judgment, the contention of Shri Vayal that by virtue of Section 43 of the Act, the provision of the Limitation Act are attracted in the application under Section 34, being without any substance, has to be rejected.
23. The contention of Shri Vayal is to be looked into from another angle. Sections 34 and 43 fall under Chapter VII part one of the Act Section 34 provides for setting aside the arbitrator's award. By this Section an aggrieved party by the arbitral award of the Arbitral Tribunal, can take recourse to the Court by challenging that award. It is sort of an appeal against the order though Section 34 do not refer to term "appeal" but the aim and object of this Section is to give party a forum to challenge the award. Section 34(3) gives jurisdiction to entertain the challenge to an award to a Court as defined in the Article 2(e). This section gives power and jurisdiction to set aside the award if the contingency and case is made out by the party as contemplated under Section 34(2) of the Act. On the other hand, Section 43 makes the provisions of the Limitation Act, 1963 applicable to the proceedings before the arbitration which is defined under Section 2(a) of the Act. The proceedings as referred to in Section 34 are not the proceedings referred to under Section 43. Proceedings under Section 34 are for the purpose of challenging the award and proceedings referred to under Section 43 are the original proceedings can be equated with a suit in a court. Hence Section 43 i.e. incorporating Limitation Act will apply to the proceedings to the arbitrations as it applies to the proceedings of a suit in the Court. If one looks at Section 43(2) Section 43(4) the position will be very clear. In a given case, if the award is set aside by the Court under Section 34 which refers to commencement of arbitration. Section 43(4) undoubtedly suggests that there can be a case whereafter an award had been set aside a second reference may validly made and in such contingency Limitation Act as incorporated by Section 43 of the Act may made applicable but by no stretch of imagination Section 43 of the Act incorporating Limitation Act can be made applicable to the proceedings before the Court taken under Section 34. If the contention of the learned Advocate is to be accepted, then I have to read Section 43 as applicable to the proceedings before the Court under Section 34 of the Act also. Such interpretation is not permissible. Hence it cannot be accepted.
24. The contention of Shri Vayal, learned Advocate for the petitioner, regarding application of Limitation Act, by virtue of Section 43 of the Act, to all the proceedings under the Act, has to be considered from different angle. Section 34 of the Act, more or less, partial or similar to Section 30 read with Section 33 of the Arbitration Act, 1940. Section 34 of the Act is a departure from Sections 30, 33. In 1940 Act, this provision i.e. Section 34 Sub-section (3)-proviso of the Act were not part of the 1940 Act. Under 1940 Act for filing an application for setting aside an award was prescribed by Article 119(b) of the Limitation Act. But in enacting Section 34(b) of the Act, there is change brought in the Act which indeed is a different scheme altogether. The application for setting aside an award has to be made within three months, as stated in Section 34(3) of the Act. Thus, the starting points of limitation are :
(i) date of receipt of award;
(ii) date of disposal of the application under Section 33 of the Act, if made.
Proviso to Section 34(3) permits the extension of time for sufficient cause is shown in not filing the application after three months, but by further maximum period of 30 days only can be extended by the Court applying the 'proviso'. The maximum outer limit having been specially provided. Therefore, there is no scope for further extension of time of three months and 30 days as referred to in the section. This is the distinguishing feature noticed by me in Section 34 of the Act. Under Section 5 or Section 14 of the Limitation Act, there is no restriction on the Court to condone delay of any amount of day, may it be of one day or 10 years. If sufficient cause is shown by the party and the Court is satisfied that the party is prevented from filing the appeal/application in time, it can condone delay, but by virtue of Section 34(3) proviso, it has restricted the powers of the Court to condone delay for more than three months and upto 30 days. If the delay is beyond this period by invoking provisions of Limitation Act, as incorporated by Section 43 of the Act, delay cannot be condoned. Even if, for the sake of argument, it is accepted that the Limitation Act by virtue of Section 43 is incorporated in the Act, will apply but still the provisions of the entire Limitation Act cannot be taken into consideration because of the specific provisions contained in Section 34(3) proviso of the Act. Even assuming that the Court can condone the delay but the Court cannot condone any amount of delay outside the period specified by the 'proviso'. The Court's power to condone the delay is restricted for extension of time of three months and 30 days. In view of this provision, in my judgment, the contention raised by Shri Vayal, that the entire Limitation Act is made applicable to the proceeding before the Court, cannot be accepted.
25. Therefore, I am of the view that there is no merit in the contention of Shri Vayal that even if the provisions of Section 43 of the Act would have been brought to the notice of the learned Judges who decided the HMP Engineers case (supra), it would have made hardly any difference. Hence the contention also stands rejected.
26. There is no scope for interference by this Court, as even on merit also, the learned District Judge has considered that the petitioner has not assigned sufficient reasons for condonation of delay. The learned District Judge has considered the conduct of the petitioner. The learned Judge in para No. 8 of the judgment by recording the following finding, dismissed the application on merit :
8...... "On perusal of the true copy of the order passed by the learned CJSD it seems that the order passed was noted by the Advocate of both the parties on the very day i.e. 30-7-2003. After passing the said order, the proceeding must have been returned to the applicant on the endorsement about receipt of the said proceeding back by the Advocate of the applicant. On Exh. 1 when there is an endorsement about presentation of the petition by the Advocate of the petitioner dated 30-7-2003 then while receiving back the original application for its presentation to the proper Court there ought to have been the endorsement and signature of the concerned Advocate, or the person to whom that on which date the proceeding was returned back to him.
It is best known to the applicant as to why such endorsement is produced on record and why the applicant made a delay to receive back the said petition when the order was already passed by the learned trial Court on 30-7-2003 which was noted by the concerned Advocate on the very day? The contention in the application that the papers are returned by the learned CJSD Jalna on 30-8-2003 are not substantiated by any reliable document. On the contrary, it seems that on the original application for condonation of delay the date of return of the document was kept blank and later on in ink the same date is written as 3-8-2003, that appears to be written subsequently as per adjustment of the applicant. Otherwise on application Exh. 1 of the original petition bearing No. 89/02 the endorsement and date of receipt of the said application back ought to have been put by the concerned Advocate. Considering the said facts the contents of the application thereafter receiving the said papers from the CJSD the applicant came to this Court within limitation and there is no delay etc. seems to be totally false. If it was so then certainly applicant has no reason to file application for condonation of delay. Oh the contrary, it seems that for the first time the applicant moved his application to this Court on 2-9-2003. It seems that the application was incomplete and was under objection as on the same application the names of the parties were not properly mentioned and therefore the matter was kept for removal of the objection. While making the application on 2-9-2003, it seems that the applicant was not diligent but he was negligent and therefore on that day the office was constrained to keep the matter under objection and for compliance, and thereafter the applicant realized the mistake, therefore on 15-9-2003, the application for condonation of delay is filed in proper forum. Thus the date of proper presentation of the application for condonation of delay in this Court may be considered as instituted on 15-9-2003, and upto this date of the total period of delay is calculated then it comes to 437 days. As per Section 34(3) of the Arbitration and Conciliation Act, 1996, the application for setting aside arbitral award to be preferred by the applicant within 90 days i.e. three months from the date on which the party making the application had received the arbitral award. Here in this case the arbitral award seems to be passed on 5-4-2002. Applicant has stated that after receiving the arbitral award he approached to the Court of CJSD within time. The application under Section 34 seems to be preferred by him in the Court on CJSD on 3-7-2002. So he must have approached to the CJSD Jalna within 90 days but he did not approach to this Court i.e. proper forum within the prescribed limitation period, on excluding the 90 days period for preferring the application to challenge the award which expires on 3-7-2002, the further period if calculated from 3-7-2002, till 15-9-2003. That period comes of 437 days and that is the inordinate delay caused by the applicant to approach to the proper forum. This delay is to be explained by him properly if the provisions of the Limitation Act are applicable to the proceeding."
27. I have no hesitation to approve the reasons recorded by the learned District Judge in para No. 8 of the judgment. The learned Judge was right in holding that the petitioner has not made out any case and not explained the delay satisfactorily. No cause was shown that the petitioner was prevented by sufficient cause from not making the application within the period of three months. Therefore, in my judgment, the learned District Judge was right in rejecting the application. As such, it is not possible for me to set aside the order passed by the learned District Judge. The amount of award may be huge one, however, the petitioner can be held responsible for this situation. It is to be noted that on 30-7-2002 learned Advocate for the petitioner has noted down the order, but why it required the petitioner one month to take the papers from the Civil Court is not explained. This itself is indicative of the fact that the petitioner was not diligent enough in prosecuting the matter. For all the reasons stated above, I am of the opinion that no case is made out by the petitioner to invoke the jurisdiction of this Court under Article 227 of the Constitution of India.
28. One more aspect has to be noted as it is contended that initially the application was tendered/lodged before the District Court, but on oral advice given to the petitioner, the petitioner filed the application before the learned Civil Judge S.D., Jalna. This aspect cannot be considered as no positive record is brought by the petitioner to indicate who directed the petitioner to file the application before the Civil Judge, S.D., Jalna. If the petitioner was serious about it, the petitioner should have filed at least affidavit of the concerned person who has given such advice. As the petitioner has not ventured to do so, the theory of oral objection/advice at the time of filing application on 4-7-2002, cannot be accepted.
29. Accordingly, the petition fails. Rule discharged. No order as to costs.