Allahabad High Court
State Of U.P. Thru. Secy. Deptt. Of ... vs M/S Mohd. Yusus Construction ... on 6 July, 2022
Bench: Devendra Kumar Upadhyaya, Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 2
Case :- APPEAL UNDER SECTION 37 OF ARBITRATION AND CONCILIATION ACT 1996 DEFECTIVE No. - 4 of 2022
Appellant :- State Of U.P. Thru. Secy. Deptt. Of Irrigation Govt. Of U.P. Civil Secrt. Lko. And Another
Respondent :- M/S Mohd. Yusus Construction Company Lko. Thru. Its Director/ Proprietor Sri Yusuf
Counsel for Appellant :- C.S.C.
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Rajnish Kumar,J.
(C. M. Application No.1 of 2022)
Heard learned counsel representing the appellants-State-authorities and perused the averments made in the application seeking condonation of delay.
The office has reported a delay of 18 days in filing the instant appeal under section 37 of the Arbitration and Conciliation Act (herein after referred to as 'the Act') challenging the order dated 05.10.2021 passed by the Presiding Officer, Commercial Court, Faizabad, whereby the application seeking condonation of delay in preferring the application under section 34 of the said Act has been rejected and consequently the application for setting aside the award has also been rejected.
Having regard to the averments made in the affidavit filed in support of the application seeking condonation of delay, we are satisfied that the delay has sufficiently been explained.
Accordingly, the application is allowed and delay in moving the appeal is hereby condoned.
Order on Memo of Appeal
Heard learned counsel for the appellants and perused the records available before this Court.
By means of this appeal filed under section 37 of the Act challenge has been made to the order dated 05.10.2021 passed by the Presiding Officer, Commercial Court, Faizabad whereby the application made by the appellants seeking condonation of delay in preferring the application under section 34 of the Act, 1996 for setting aside the award has been rejected and consequently the application under section 34 of the Act itself has been rejected.
Sub section 3 of section 34 of the Act provides that an application for setting aside award can be made within three months from the date on which the party intending to move such application receives the arbitral award. It further provides that if a request has been made under section 33 for correction and interpretation of award, then, three months period shall be given from the date on which request has been disposed of by the Arbitral Tribunal.
It is not a case where any such request as contemplated under section 33 of the Act, was made.
The award by the arbitrator in this case was made on 08.04.2017 and admittedly, the said award came to the notice of the authorities of the appellants on 06.05.2017. Thereafter as per the application moved by the appellants seeking condonation of delay in filing the application under section 34 of the Act before the court below, the application seeking certified copy of the arbitral award was made on 10.05.2017 whereupon the certified copy of the arbitral award was provided on 25.05.2017. Thus, in terms of the provisions contained in sub section 3 of section 34 of the Act, the appellants had limitation to file the application under section 34 of the Act till 24.08.2017. Admittedly, within this period the application under section 34 of the Act was not filed by the appellants. It is also to be noticed that the proviso appended to sub section 3 of section 34 of the Act provides that in case the court is satisfied that the applicant intending to move application under section 34 was prevented by sufficient cause from making the application within the period of three months, such application may be entertained within a further period of thirty days and not thereafter. Thus, the mandate of the proviso appended to sub section 3 of section 34 of the Act is abundantly clear. It permits the court to condone the delay if it is satisfied that there was sufficient cause on account of which the application could not be preferred under section 34 of the Act within three months. However, further period, which can be condoned is of thirty days only.
The proviso appended to sub section 3 of section 34 of the Act ends with words "but not thereafter". Thus, the aforesaid provision contains a mandate to the court where it cannot condone the delay beyond the period of thirty days after expiry of period of limitation of three months. Admittedly, in this case certified copy of the award was received by the authorities of the appellants on 25.05.2017 and thus, the limitation as contemplated in sub section 3 of section 34 of the Act was available to the appellants till 24.08.2017. The application under 34 of the Act was filed on 01.11.2017 which was beyond a period of thirty days counted from the date on which the limitation to file the application under section 34 of the Act ended i.e. from 24.08.2017.
The facts of the case clearly establish that the Court below could have condoned the delay if the application was preferred till 24.09.2017 and admittedly since the application was preferred after 24.09.2017 i.e. on 01.11.2017, in our considered opinion, learned court below has not committed any error in rejecting the application seeking condonation of delay in filing the application under section 34 of the Act. This view expressed by us is supported by a judgment of Hon'ble Supreme Court in the case of Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and others, reported in (2008) 7 SCC 169.
In view of the aforesaid, we do not find any illegality in the order under challenge herein.
Accordingly, the appeal is hereby, dismissed.
Order Date :- 6.7.2022
akhilesh/
