M/S. P.C.V. Traders vs Kapol Cooperative Bank Limited
2012 Latest Caselaw 293 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                              
                     ORDINARY ORIGINAL CIVIL JURISDICTION

                        ARBITRATION PETITION NO. 26 OF 2008




                                                      
      M/s. P.C.V. Traders,
      Prop. Ms. Priti Chandrakant Vora,
      10/B, Shashitara Apartments, S.V. Patel Raod,




                                                     
      Borivali (West), Mumbai 400 103                          ...       Petitioner

                                           Versus

      Kapol Cooperative Bank Limited,




                                              
      Multi State Cooperative Bank Ltd.
      Ground Floor, Rolex Apartments,
                                 
      S.V. Road, Malad (West),
      Mumbai 400 064                                           ...       Respondent
                                
                                        WITH
                        ARBITRATION PETITION NO. 31 OF 2008

      M/s. M.C. Vora and Co.
             

      Prop. Mrs. Mrudula Chandrakant Vora,
      10/B, Shashitara Apartments, S.V. Patel Road,
          



      Borivali (West), Mumbai 400 103                          ...       Petitioner
                                       Versus

      Kapol Cooperative Bank Limited,
      Multi State Cooperative Bank Ltd.





      Ground Floor, Rolex Apartments,
      S.V. Road, Malad (West),
      Mumbai 400 064                                           ...       Respondent

      Mr. S.K. Jain for petitioner.





      Mr. R.M. Haridas for respondent.

                           CORAM : R.D. DHANUKA,J.

DATED : OCTOBER 30, 2012

ORAL JUDGMENT :

1. By these two petitions filed under section 34 of the Arbitration &

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Conciliation Act, 1996, the petitioner seeks to challenge the award dated 8 th

November, 2005 and also supplementary award dated 17 th August, 2006 declared

by the learned arbitrator.

2. The learned counsel appearing for the respondent submits that both the

petitions are barred by limitation as the petitions are not filed within three

months from the date of receiving copy of the award from the learned arbitrator.

It is submitted that the petitioner had misled this court by taking out Notice of

Motion (598 of 2012) in Arbitration Petition (26 of 2008) and Notice of Motion

(597 of 2012) in Arbitration Petition (31 of 2008) for seeking condonation of

delay of two days in filing the petitions.

3. From the perusal of the averments made in the petition, it is clear that the

copy of the award dated 8 th November, 2005 was received in the month of

November, 2005. The Petitioner thereafter applied under section 33 (4) of the

Act before the learned arbitrator for clarification and for making additional award.

On 17th August, 2006 the learned arbitrator passed orders on the said

applications made under section 33(4) of the Act. Admittedly copies of the said

supplementary awards dated 17 th August, 2006 were received by the petitioner

on the same day. The present petition has been lodged by the petitioner on 19 th

December, 2006 which is much after three months from the date of getting copy

of the supplementary award from the learned arbitrator.

4. The Petitioner thereafter filed Notice of Motion for condonation of delay

contending that there was only two days delay in filing the petitions. When the

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Notice of Motion appeared before this court, papers and proceedings in

arbitration proceedings were not available in the court. This court accepted the

statement made by the petitioner who appeared in person and the averments

made in the affidavit in support of the motion. Considering the fact that there was

prayer for condonation of delay of only two days, the learned counsel for the

respondent did not oppose the application in good faith. This court accepted the

statement made by the petitioner in person and in affidavit in support of the

motion and condoned the delay of two days.

5.

The Supreme Court in the case of Assam Urban Water Supply and Sew.

Board Vs. Subash Projects and Marketing Ltd. 1 after consideration of the

limitation prescribed in section 34(3) of the Act, has held thus :

"7. Section 34(3) of the 1996 Act provides that an application for setting

aside an award may be made within three months of the receipt of the

arbitral award. The proviso that follows Sub-section (3) of Section 34

provides that on sufficient cause being shown, the court may entertain the

application for setting aside the award after the period of three months and

within a further period of 30 days but not thereafter.

8. In Popular Construction Company (supra), this Court has held that an application for setting aside an award filed beyond the period mentioned in

Section 34(3) would not be an application "in accordance with Sub-section (3) as required under Section 34(1) of the 1996 Act" and Section 5 of the 1963 Act has no application to such application. In para 12 of the report, it was held in Popular Construction Company s thus:

12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are "but not thereafter" used in the proviso to Sub-section (3).

In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of the Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award 1 (2012) 2 SCC 624

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beyond the extended period under the proviso, would render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such a result.

9. Recently, in the State of Maharashtra v. Hindustan Construction Company Limited MANU/SC/0215/2010 : (2010) 4 SCC 518, a two Judge Bench of this

Court speaking through one of us (R.M. Lodha, J.) emphasized the mandatory nature of the limit to the extension of the period provided in proviso to Section 34(3) and held that an application for setting aside arbitral award under Section 34 of the 1996 Act has to be made within the time prescribed under Sub-section (3) of Section 34, i.e., within three months

and a further period of 30 days on sufficient cause being shown and not thereafter.

13. The above Section enables a party to institute a suit, prefer an appeal or make an application on the day court reopens where the prescribed period

for any suit, appeal or application expires on the day when the court is closed. The crucial words in Section 4 of the 1963 Act are 'prescribed period'. What is the meaning of these words? Section 2(j) of the 1963 Act

defines 'period of limitation' which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and 'prescribed period' means the period of limitation computed in accordance with the provisions of

this Act. Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows Sub-section (3) of Section 34 of the 1996 Act is not the 'period of limitation' and, therefore, not

'prescribed period' for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which

the court may extend on sufficient cause being shown under the proviso appended to Sub-section (3) of Section 34 of the 1996 Act being not the 'period of limitation' or, in other words, 'prescribed period', in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case."

6. I am of the view that the petitions not having been filed within three

months from the date of getting the copy of the award is barred by limitation

prescribed under section 34(3) of the Act. Even if, the date of receipt of the

supplementary award from the arbitrator is considered, three months had already

expired when these petitions were lodged. In my view this court was misled by

the petitioner by falsely contending that there was delay of only two days in filing

petition under section 34 of the Act.

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    7.     In my view the prescribed period for       making an application for setting

aside arbitral award is three months. The period of thirty days mentioned in

proviso to section 34(3) of the Act is not the period of limitation and is therefore,

not prescribed period for the purpose of making an application for setting aside

arbitral award. The Petitioner has proceeded on the footing that the time to

challenge was three months plus thirty days from the date of getting the copy of

the supplementary award which is on the face of it contrary to section 34(3) of the

Act. I do not propose to go into the issue whether the limitation in this case would

commence from the date of getting the copy of the award dated 8 th November,

2005 in view of the application filed by the petitioner under section 33(4) of the

Act having been dismissed being not maintainable by the learned Arbitrator.

8. This court has no power to condone the delay beyond thirty days and that

also only if sufficient cause is shown and not thereafter. Mr. Jain the learned

counsel for the petitioner does not dispute that three months plus 30 days had

already expired when the petitions were lodged by the petitioner. Both these

petitions are thus barred by limitation.

9. I, therefore, pass the following order :

Arbitration Petition No. 26 of 2008 and Arbitration Petition No. 31 of 2008

are dismissed.

There shall be no order as to costs.

(R.D. DHANUKA,J.)