Bombay High Court
Ravindra Deviprasad Jaiswal vs Buldana Urban Co-Operative Credit ... on 8 August, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:9179
13 Arbitration Apeal no.34.23.odt..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
ARBITRATION APPEAL NO.34 OF 2023
Ravindra Deviprasad Jaiswal
Aged about 50 years,
Occupation: Business
R/o. Jaiswal Plaza, Sangam Chowk,
Buldana, Tq. & District- Buldana .... APPELLANT
// V E R S U S //
1. Buldana Urban Co-oprative Credit Society,
Hutatma Gore Road, Buldana,
Tq & District-Buldana
2. Deviprasad Devlal Jaiswal,
Aged about 95 years,
Occupation: Retired
R/o Jaiswal Plaza, Sangam Chowk,
Buldana, Tq. & District - Buldana
3. Ramesh Hariram Chawla,
Aged about 55 years, ... RESPONDENTS
Occupation: Business,
R/o 'Samarpan', Chikhli Road,
Buldana, Tq. & District Buldana
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Ms Radhika Bajaj, Advocate for the appellant
Mr J.B. Kasat, Advocate for the respondent No.1
----------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
DATE : 8/08/2024
ORAL JUDGMENT :
13 Arbitration Apeal no.34.23.odt..odt
1 Heard finally at the admission stage. Perused the
record and proceedings.
2 This appeal has been filed against the order dated
09.08.2023 passed by the learned District Judge-1, Buldana,
whereby the learned District Judge rejected the application
made by the appellant for condonation of delay in filing the
application under Section 34 of the Arbitration and
Conciliation Act, 1996 (for short, "the Arbitration Act").
3 The relevant facts having bearing with the issue
involved in this appeal are as follows:
The award was passed on 15.09.2018. The award
was communicated to the appellant on 06.12.2018. The
appellant was required to file the application under Section 34
of the Arbitration Act within three months from the date of
receipt of the notice and the copy of the Arbitral award. He
filed the application under Section 34 of the Arbitration Act on
13 Arbitration Apeal no.34.23.odt..odt
12.03.2019. The application was filed without an application
for condonation of six days delay caused in filing the
application under Section 34 of the Arbitration Act. It is also
seen that on 12.03.2019, itself the Superintendent Technical
Division District Court, Buldana, recorded his objection. The
objection was too fold. 1. The appeal was not filed within
limitation. 2. The requisite court fee was neither paid nor the
application for payment of court fee was made. The appellant
made an application under Section 5 of the Limitation Act,
1963, for condonation of delay on 12.08.2021. The reasons
have been stated in the application. Primary reason is that after
receiving the copy the appellant approached the Advocate and
then for collecting various documents, time was required. He
further stated that a huge amount was involved in the matter
and therefore, the appellant was required to take proper care
and precaution. It is stated that the appellant has been directed
to pay a huge amount under the award and therefore, the
13 Arbitration Apeal no.34.23.odt..odt
decision on the application is required on merit. On these
grounds, he prayed for condonation of delay.
4. This application was opposed. It was contended
that the appellant did not take proper care in prosecuting the
application. The filing of application before District Court on
12.03.2019 is not disputed. However, it is contended that
objections raised by the Office of District Court were not
removed within reasonable time.
5. Learned District Judge after considering the rival
contentions and record rejected this application. Learned
District Judge appears to have proceeded on the footing that
the application for condonation of delay was under Section 5
of the Limitation Act and as such it was not maintainable.
6. I have heard learned Advocates for the parties.
Perused the record and proceedings. It needs to be stated that
13 Arbitration Apeal no.34.23.odt..odt
the Court has to see the substance and nature of the
proceedings. The Court, while deciding the application for
condonation of delay, is required to bear in mind the provisions
of law under which the application is filed. The Court has first
to ascertain whether the limitation prescribed under the
Limitation Act would be applicable or whether the Limitation
for filing an appeal or application under the special enactment
would be applicable. Once the Court has addressed this aspect,
then the Court is required to go into the aspect of limitation
prescribed under the law for filing the proceeding as well as the
provisions of the law providing for the condonation of delay.
The Court is not supposed to get carried away by the title of the
application. The Court has to consider the substance of the
application and the law under which the application is made by
the party before the Court. In this case, learned District Judge
appears to have glossed over this fundamental aspect.
13 Arbitration Apeal no.34.23.odt..odt
7. The application under Section 34 of the Arbitration
Act was filed on 12.03.2019. Admittedly, a copy of the notice
and award was served to the appellant on 06.12.2018. As per
Section 34 (3) of the Arbitration Act a limitation of three
months has been provided for filing an application for
challenging the arbitral award. The proviso to sub-section 3
provides further grace period of 30 days. As per this proviso, if
the applicant proves that he was prevented by sufficient cause
from making the application within the said period of three
months, the Court may entertain the application within a
further period of thirty days, but not thereafter. In my view,
this provision is required to be taken note of while deciding the
issue of fact involved in this case.
8. It is evident that the application under Section 34
of the Arbitration Act was filed within the grace period of thirty
days. It was filed on 12.03.2019. The period of 3 months in
this case expired on 06.03.2019. The application under Section
13 Arbitration Apeal no.34.23.odt..odt
34 of the Arbitration Act was filed without the application for
condonation of delay. The office raised the objection on two
grounds, as stated above. However, the application was not
rejected till the application for condonation of delay was made
on 12.08.2021. The question is whether the delay period or
the delay has to be counted till the date of filing of the
application on 12.08.2021 or delay has to be counted till the
date of filing of the appeal with defects as noted above? It is
evident that the appeal was filed, though with defects, within
the grace period of 30 days. The appellant was required to make
a formal application for condonation of delay, which was not
made. The court fee was not paid. The question is whether the
defective application would not be an application in the eyes of
law. In my view, the application was entertained by the District
Court. The objections were recorded and notified. It was the
duty of the appellant to remove the office objections. He did
not remove the office objections. The application was not
13 Arbitration Apeal no.34.23.odt..odt
dismissed. The application for condonation of delay was made
on 12.08.2021. On the date of filing of the application under
Section 34 of the Arbitration Act, there was a six days delay.
The application was within the grace period of 30 days. The
application was filed without an application for condonation of
delay. The office of District Court recorded and notified the
objections. The office of District Court was duty bound to
entertain the appeal though it was defective.
9. In the facts and circumstances, I conclude that on
account of failure of the applicant to make an application for
condonation of delay of six days, on the date of the filing of
application under Section 34 of the Arbitration Act, it could
not be said that the period up to 12.08.2021, would be
counted as delay period. Learned District Judge has failed to
properly appreciate this factual position.
13 Arbitration Apeal no.34.23.odt..odt
10. It needs to be stated that the litigant cannot be
made to suffer for the mistake committed by the Advocate. The
litigant has a choice to engage the Advocate. Once the Advocate
is engaged by the litigant, it is the duty of the Advocate to guide
the litigant and take all such necessary steps to protect the
interest of the litigant. In this case, the Advocate filed the
application under Section 34 of the Arbitration Act without
the application for condonation of delay. He did not make an
application within time to pay the court fee. Litigant is not
supposed to know the niceties of the law. The Advocate is
supposed to know the niceties of the law and guide the litigant.
The Advocate for the appellant appears to have failed to protect
the interest of his client. The Advocate instead of making an
application for condonation of delay under Section 34(3) of
the Arbitration Act, applied for condonation of delay under
Section 5 of the Limitation Act, 1963. This was mistake on
the part of the Advocate. The litigant cannot be made to suffer
13 Arbitration Apeal no.34.23.odt..odt
for mistake committed by the Advocate.
11. Learned Judge was required to see the substance of
the application and provisions of law under which the basic
application was made challenging the award, as well as the
application for condonation of delay. Learned Judge was
required to see the period of limitation provided under Section
34(3) of the Arbitration Act and also the proviso which
provides the grace period of 30 days in case the application is
not filed within the period of three months.
12. In my view, in this case, therefore, on account of
the mistake of the Advocate the litigant cannot be non-suited.
In the facts and circumstances of the case, I am satisfied that
learned Judge has not properly appreciated the facts as well as
provisions of law. The order passed by the learned Judge is
required to be set aside.
13 Arbitration Apeal no.34.23.odt..odt
13. The Arbitration Appeal is allowed.
(i) The impugned order dated 09.08.2023 passed by
the learned District Judge-1, Buldana is set aside.
(ii) As a consequence of this, Civil Misc. Application
No.69/2021 for condonation of six days delay application
under Section 34 of the Arbitration Act is allowed and delay is
condoned.
(iii) Learned Judge, on registration of the application
under Section 34 of the Arbitration Act shall dispose of the
same within four months from 27.08.2024.
14. Arbitration Appeal stands disposed of accordingly.
(G. A. SANAP, J.)
manisha
Signed by: Mrs. Manisha Shewale
Designation: PA To Honourable Judge
Date: 20/08/2024 11:15:27
