The Allahabad High Court, while rejecting an appeal challenging the arbitral award after more than four years observed that the period of filing of application under Section 34 against the arbitral award is 90days with a grace period of 30 days, whereas the appellants had approached the Commercial Court after a delay of 4 years and 9 months.
Brief Facts:
The present appeal was filed against the arbitral award passed in 2017 after a delay of 4 years and 9 months under Section 37 of the Arbitration and Conciliation Act for setting aside of the arbitral award.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the appellant submitted that the delay caused in filing the appeals is unintentional, bona fide and due to procedural formalities and since the award itself is illegal, thus, this Court may condone the delay and hear the appeals on merits.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent submitted that the explanation given in the delay condonation application for condoning the delay is neither satisfactory nor conceivable, particularly in view of the fact that challenging the award dated 18.2.2017 of the learned Arbitrator, application under Section 34 of the 1996 Act was filed before the Commercial Court, Gorakhpur after an enormous and un-explained delay of more than four years, nine months and after rejection of the said application on 8.6.2022 time barred appeals have been preferred before this Court.
Observations of the court:
The court observed that the explanation taken in the delay condonation application seeking condonation of delay in the opinion of the Court is nothing but a usual, stereotype explanation with respect to placing the files from one desk to another in a routine manner. There is nothing on record to suggest that due diligence was exercised to ensure the filing of the appeals within the time provided under the statute. It is also not the case of the appellant that they were not aware of the passing of the award at the first instance and rejection of the application under Section 34 of the 1996 Act as the appellants were represented before both forums. An additional factor also needs to be noted that in all the cases the application under Section 34 of the 1996 Act was preferred after approximately four years, and nine months and once the same being an undisputed position, it is highly inconceivable that the appellants were not aware about the fact that appeals were to be preferred with due promptness as per the limitation provided under the statute.
The court referred to the decision of the court in the case of Madhya Pradesh & Others v. Bherulal, wherein it was where the delay was caused by officers who sat on the file and did not take any action and the cost wastage of judicial time must be recovered from such erring officers. Further, the court referred to the decision in the case of State of Uttar Pradesh & Others v. M/s.Satish Chandra Shivhare & Brothers, wherein it was held that the yardstick for condonation of delay cannot be different for appeals filed by the government. The Court held that though the delay can be condoned by virtue of Section 5 of the Limitation Act, however, inordinate delay must not be condoned where it is caused by negligence of officers.
The decision of the Court:
The court rejected the delay condonation applications and dismissed the appeal.
Case Title: Executive Engineer Drainage Division vs Ms Ayush Construction and Anr.
Coram: Hon’ble Mr. Chief Justice Arun Bhansali and Hon’ble Mr. Justice Vikas Budhwar
Case No.: APPEAL UNDER SECTION 37 OF ARBITRATION AN CONCILIATION ACT 1996 DEFECTIVE No. - 89 of 2024
Advocate for the Petitioner: Dr. D.K. Tiwari, Kunal Ravi Singh
Advocate for the Respondent: Ritesh Singh, Suresh Singh
Read Judgment @LatestLaws.com
Picture Source :
