Allahabad High Court
Executive Engineer, Narora ... vs Sri Amar Pal Singh on 3 February, 2021
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 38
Case :- APPEAL UNDER SECTION 37 OF ARBITRATION AND CONCILIATION ACT 1996 DEFECTIVE No. - 6 of 2021
Appellant :- Executive Engineer, Narora Division, Lower Ganga Canal
Respondent :- Sri Amar Pal Singh
Counsel for Appellant :- Prem Prakash Chaudhary
Hon'ble Saumitra Dayal Singh,J.
1. Notice of the petition has been served today, in Court on Sri Rajnish Pratap Singh, learned counsel for the caveator-respondent.
2. Heard Sri Prem Prakash Chaudhary, learned counsel for the appellant and learned Standing Counsel for the State.
3. The present appeal has been filed under Section 37 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the 'Act') against the order dated 17.02.2020 passed by the Presiding Officer, Commercial Court, Aligarh. By that order, the learned court below has rejected the objection paper no.8C filed by the applicant under Section 34 of the Act, with respect to an award of the arbitrator dated 18.07.2018, as delayed. The present appeal has also been filed with delay. However, it is seen that it was in time up to 17.05.2020 and thereafter learned counsel for the appellant claims benefit of the orders passed by the Supreme Court as also in Writ Petition Civil No.3 of 2020, vide order dated 23.03.2020 and orders passed by the Division Bench of this Court wherein the strict rule of limitation has been relaxed in view of the adverse situation arising from the spread of the pandemic Covid-19 and the lockdown that had to be initially strictly enforced.
4. Leaving aside the issue of delay in the present appeal, it is undisputed that the signed copy of the award dated 18.07.2018 was served on the appellant on or before 28.07.2018. While the objection under Section 34 of the Act was filed on 23.10.2019.
5. Perusal of the delay condonation application filed along with this appeal under Section 34 of the Act reveals that it is admitted to the appellant that a letter dated 28.07.2018 had been written internally for release of payment in terms of the award (paragraph no.5 of the affidavit). That being so, a presumption arises that a signed copy of the award had been served on the appellant on or before the date 28.07.2018. No contrary fact has been pleaded as may suggest that the signed copy of the award was received by the appellant, later.
6. Start point of limitation being 28.07.2018, the objection under Section 34 of the Act filed on 28.10.2019 is wholly beyond time by about nine months.
7. In M/s N.V. International Vs. The State of Assam & Ors.; (2020) 2 SCC 109, the Supreme Court followed its earlier decision in Union of India Vs. Varindera Construction Ltd. passed in SLP (C) No. 23155 of 2013, decided on 17.09.2018. Following that decision, the Supreme Court has observed as under:
"5. We may only add that what we have done in the aforesaid judgment is to add to the period of 90 days, which is provided by statute for filing of appeals under Section 37 of the Arbitration Act, a grace period of 30 days under Section 5 of the Limitation Act by following Lachmeshwar Prasad Shukul & Ors. (supra), as also having regard to the object of speedy resolution of all arbitral disputes which was uppermost in the minds of the framers of the 1996 Act, and which has been strengthened from time to time by amendments made thereto. The present delay being beyond 120 days is not liable, therefore, to be condoned.
6. Accordingly, the appeal is dismissed."
8. In view of the facts noted above and no contrary law having been shown by the State, the objection filed under Section 34 of the Act were wholly beyond limitation prescribed. The delay was beyond time of condonation. The appeal is accordingly dismissed.
Order Date :- 3.2.2021
S.Chaurasia
