M/S. Tirumala Roadways vs The Indian Oil Coporation Ltd. And ...
2016 Latest Caselaw 1131 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                 
                    NOTICE OF MOTION NO.683 OF 2015




                                                      
                                   IN
                  ARBITRATION PETITION (L) NO.109 OF 2015
                              ALONG WITH
                  ARBITRATION PETITION (L) NO.109 OF 2015




                                                     
    M/s.Tirumala Roadways                )
    having office at FL-904,             )
    Plot No.23C, Sector 7,               )




                                            
    AumSai, Near Three Star Hotel,       )
    Kharghar, Navi Mumbai- 410 210. )
    through its Proprietor
    Shri Vishnu RajmallaKalyaDappu )
                                    ig   )
                                                 ..    Applicant/Petitioner
           Versus
                                  
    1. The Indian Oil Corporation Limited)
    A Public Sector Oil Company,         )
    having its Registered Office at      )
    'Indian Oil Bhavan', G-9,            )
    Ali Yavar Jung Marg,                 )
        


    Bandra (E), Mumbai - 400 051.        )
     



    2. Zonal Distribution Manager, WR.       )
    LC Trombay, having office at             )
    Trombay Lube Complex,                    )





    Near Tata Thermal Plant,                 )
    Corridor Rad, Trombay,                   )
    Mumbai - 400 074.                        )

    3.Shri S.C. Pathak                 )
    Sole Arbitrator and Chief Manager, )





    Indian Oil Corporation Ltd.,       )
    254C, Dr.Annie Besant Road,        )
    Prabhadevi, Mumbai - 400 030.      )     ..    Respondents
                 ---
    Mr.Shailesh Humane i/by Mr.Rahul Arote for the applicant/petitioner.
    Ms.Tanmayi Gadre a/w Mr.Sunil Gangan a/w Mr.Jayesh Mestry i/by
    M/s.RMG Law Associates for the respondents.
                 ---




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                                     CORAM       : R.D. DHANUKA, J.

                                     DATE        :  2nd April 2016




                                                                                       
    Oral Judgment :-




                                                            
    .               By this notice of motion, the applicant (original petitioner)

seeks condonation of delay of 30 days in filing the arbitration petition.

2. Ms.Gadre, learned counsel appearing for the respondents raises an objection at this stage that delay in filing an arbitration petition is not 30 days but much more than 30 days and thus this Court has no

power to condone the delay beyond the period of 30 days under Section

34(3) of the Arbitration and Conciliation Act, 1996 (for short "the Arbitration Act") even if sufficient cause is shown.

3. Mr.Humane, learned counsel appearing for the applicant, on the other hand, would submit that a copy of the award was received

by the applicant from the learned arbitrator on or after 19th September

2014. In support of this submission, learned counsel invited my attention to an envelope in which copy of the signed award was served by post by the learned arbitrator from the address Shri Satish Pathak, Indian Oil

Corporation Limited, 2nd Floor, TC-39 V, Vibhuti Khand, Gomti Nagar, Lucknow, Uttar Pradesh as CM HR-CSR. He submits that the period of 3 months had expired on 19 th December 2014 and further period of 30

days had expired on 18th January 2015 which fell on Sunday. He submits that 18th January 2015 being Sunday, the applicant could not have lodged the arbitration petition on 18 th January 2015 and thus the petition came to be lodged on 19th January 2015. In these circumstances, the applicant seeks condonation of delay of 30 days in filing the arbitration petition.

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4. Learned counsel for the respondents disputed the allegations

of the applicant that the copy of the award was received by the applicant on 19th September 2014. She submits that even the envelope produced

by the applicant for perusal of this Court shows the date 18 th September 2014. It is submitted that even if the award was dispatched on 18 th September 2014, the same was received by the applicant on 19 th

September 2014. She submits that the period of limitation for filing the arbitration petition under Section 34 of the Arbitration Act is not three

months and 30 days but it is only three months. She submits that under Section 34(3) of the Arbitration Act, if any arbitration petition is filed

challenging the arbitral award after expiry of three months, but within a period of 30 days thereafter, the Court has power to condone delay upto

a period of 30 days if sufficient cause is made out. She submits that under Section 4 of the Limitation Act, 1963 read with Section 2(j) of the said Act, since the period of 30 days provided in Section 34(3) of

the Arbitration Act after expiry of three months is not the period of

limitation, since such period of 30 days expired on 18 th January 2015 being Sunday, the applicant cannot get benefit of such provision.

5. In support of this submission, learned counsel placed reliance on the judgment of the Supreme Court in the case of Assam Urban Water Supply and Sewerage Board Vs. Subash Projects and

Marketing Limited, reported in (2012) 2 SCC 624 and in particular paragraphs 6 to 15 thereof. Even if the averments made in the affidavit- in-support of the notice of motion are accepted as correct, according to the applicant, the period of three months had admittedly expired on 19 th December 2015 and further period of 30 days had expired on 18 th January 2015 which was Sunday.

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6. Supreme Court in the case of Assam Urban Water Supply

and Sewerage Board (supra) has considered the similar facts and has construed the period of limitation prescribed under Section 34(3) of the

Arbitration Act and also the provisions of Sections 2(j) and 4 of the Limitation Act, 1963. Supreme Court has held that Section 2(j) of the Limitation Act, 1963 when read in the context of Section 34(3) of the

Arbitration Act, it becomes amply clear that the prescribed period for making an application for setting aside an arbitral award is three months.

The period of 30 days mentioned in the proviso that follows sub-section (3) of Section 34 of the Arbitration Act is not the "period of limitation"

and is therefore, not the "prescribed period" for the purpose of making an application for setting aside the arbitral award. It is held that 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 Arbitration Act being not the "period of

limitation" or the "prescribed period," Section 4 of the Limitation Act,

1963 is not at all attracted to the facts of that case.

7. Supreme Court accordingly held that the benefit of Section 4 which could be made available where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day

when the Court reopens and could not be available in view of the fact that the period of 30 days prescribed under Section 34(3) of the Arbitration Act was neither the period of limitation nor the prescribed period of filing the arbitration application under Section 34(3) of the Arbitration Act. In my view, the judgment of the Supreme Court in the

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case of Assam Urban Water Supply and Sewerage Board (supra) squarely

applies to the facts of this case. I am respectfully bound by this judgment.

8. In my view, the period of 30 days after expiry of three months would not be the period of limitation which is prescribed period for filing an application under Section 34 (3) of the Arbitration Act. For

filing an arbitration application for impugning the arbitral award under Section 34 of the Arbitration Act, the period of limitation prescribed is three months and not three months plus 30 days. Since the period of 30

days was not a part of the period of limitation, Section 4 read with

Section 2(j) of the Limitation Act, 1963 would not apply to such application filed under Section 34 of the Arbitration Act beyond a period

of three months and would not come to rescue of the applicant herein.

9. The arbitration petition is admittedly filed beyond the

period of three months and not within a period of 30 days after expiry of

three months. This Court has no power to condone the delay of more than 30 days after the expiry of period of three months even if sufficient cause is shown by the applicant.

10. Notice of motion is accordingly dismissed. In view of dismissal of the notice of motion, the arbitration petition is also

dismissed. No order as to costs.

R.D. DHANUKA, J.