Calcutta High Court
The Kolkata Municipal ... vs Jain Infraprojects Limited on 22 February, 2021
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
Present:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
A.P.411 of 2020
The Kolkata Municipal Corporation
Vs.
Jain Infraprojects Limited
For the Petitioner : Mr. Biswajit Mukherjee, Adv.
Mr. Ambarnath Banerjee, Adv.
Ms. Manisha Nath, Adv.
For the Respondent : Mr. Joy Saha, Sr. Adv.
Mr. Sanjib Kr. Mal, Adv.
Mr. Atanu Roychowdhuri, Adv.
Mr. Pushan Majumder, Adv.
Ms. Asmita Roychowdhuri, Adv.
Last Heard on : 15.01.2021.
Delivered on : 22.02.2021.
Moushumi Bhattacharya, J.
1. A preliminary point has been raised by the respondent in the present
challenge to an Award under section 34 of The Arbitration and Conciliation
Act, 1996. The respondent contends that the application for setting aside of
the Award filed by the petitioner is barred by limitation and should,
therefore, be dismissed.
2. Mr. Joy Saha, learned Senior Counsel appearing for the respondent,
places the relevant dates for the question of maintainability and urges that
the petitioner has not taken any steps in having the initial delay in filing of
the Award, condoned. Counsel relies on Union of India vs. Popular
Construction Co.; (2001) 8 SCC 470 and Simplex Infrastructure Limited vs.
Union of India; (2019) 2 SCC 455 for the proposition that section 5 of The
Limitation Act, 1963 would not apply to section 34 of the 1996 Act. Counsel
cites Maqbul Ahmed & Ors. vs. Pratap Narain Singh & Ors.; AIR 1935 PC 85
and Sri Amar Chand Inani Vs. Union of India; (1973) 1 SCC 115 for the
proposition that when a plaint is filed in a wrong court, the time consumed
between passing of the order returning the plaint and re-filing of the plaint
cannot be excluded. Two recent orders of the Supreme Court dated 23rd
March, 2020 and 18th September, 2020 passed in Suo Moto Writ Petition (C)
No.3/2020 and in Sagufa Ahmed vs. Upper Assam Plywood Products Pvt.
Ltd. (Civil Appeal Nos.3007-3008 of 2020) respectively, have been relied upon
to urge that by the said orders, the Supreme Court extended the period of
limitation due to the pandemic but not the period up to which delay can be
condoned in exercise of discretion by the particular statute. Counsel also
relies on an order passed in Siddha Real Estate Development Private Limited
Vs. Girdhar Fiscal Services Private Limited in C.S. No.245 of 2019.
3. Mr. Biswajit Mukherjee, learned counsel appearing for the petitioner,
contends that there has only been a delay of 22 days in filing the section 34
application in the Alipore Court and by an order dated 15th October, 2020,
the Alipore Court directed that the section 34 application along with all
annexures should be returned to the petitioner for filing before the
competent court of jurisdiction in Kolkata. Counsel submits that the
certified copy of this order was received on 20th October, 2020 and the
petitioner received the other documents only on 22nd December, 2020 on
which day the present application was filed before this court. Counsel relies
on an order dated 10th July, 2020 passed by the Supreme Court in Suo Motu
Petition (C) No.3 of 2020 by which upon considering the lockdown in view of
Covid, the Supreme Court, following earlier orders dated 23rd March, 2020
and 6th May, 2020 allowed extension of all periods of limitation prescribed
under the 1996 Act with effect from 15th March, 2020 till further orders.
4. Upon hearing learned counsel appearing for the parties, the relevant
dates central to the issue of maintainability, namely, the delay in filing of
the section 34 application, are stated in brief.
5. The impugned Award was passed on 15th February, 2019 and received
by the petitioner on 27th February, 2019, the application under section 34,
challenging the Award was filed by the petitioner before the Commercial
Court, South 24-parganas on 18th June, 2019. On 15th October, 2020, the
Commercial Court, South 24-Parganas passed an order holding that it had
no jurisdiction to entertain the application under section 34 of the 1996 Act
and directed return of the petition for being filed before the appropriate
court. The petitioner received the certified copy of the aforesaid order on 20th
October, 2020. The Puja vacation of the Calcutta High Court commenced
from 22nd October, 2020 and the Court re-opened after the Puja vacation on
17th November, 2020. The present application under section 34 of the 1996
Act was filed by the petitioner on 22nd December, 2020.
6. Under section 34(3) of the 1996 Act, an application for setting aside of
an Award may not be made after three months from the date on which the
party making that application had received the arbitral award or, within a
further period of 30 days if the Court is satisfied that the applicant was
prevented by sufficient cause from making the application within the first
window of three months. The language of section 34 is peremptory; as
suggested by the inclusion of words "............may not be after three
months............." and "............within a further period of 30 days, but not
thereafter." The words indicate that the first window of three months may be
followed by an additional and final window of 30 days subject to the court
being satisfied that the applicant had sufficient reasons for not making the
application within the initial period of three months.
7. In the present case, the petitioner filed the section 34 application
before the Alipore Court on 18th June, 2019 after having received the Award
on 22nd February, 2019. Hence, the petition was filed after 112 days; after
an initial delay of 22 days. The fact that the Commercial Court, South 24-
Parganas, passed an order on 15th October, 2020, directing return of the
application cannot be of assistance to the petitioner for the following
reasons. On the date of filing of the section 34 application before the
Commercial Court, namely, on 18th June, 2019, the petitioner could not
have known of the outcome of the proceedings namely the order of the
Commercial Court on lack of jurisdiction. There was already a delay of 22
days on the date of filing itself. Hence, the contention that the petitioner was
constrained to file the present application in this court solely in view of the
order of the Commercial Court returning the application, cannot turn the
clock back for the purposes of limitation. Second, the argument made on
behalf of the petitioner that the present application was filed on the very day
when the additional papers were received by the petitioner from the learned
court below, i.e., on 22nd December, 2020, cannot save the petitioner from
the rigours of section 34(3) of the 1996 Act. This is due to the reason that
the present application does not disclose the basis for the petitioner
receiving the additional papers from the learned court on 22nd December,
2020 when the order of the Court was passed on 15th October, 2020 and the
certified copy was received on 20th October, 2020.
8. The present application for condonation of the delay is singularly
bereft of any reasons as to why the petitioner waited for two months after
receiving the certified copy of the order passed by the Commercial Court.
There is also no averment of the steps taken by the petitioner in expediting
the process for obtaining the additional documents from the learned court
below as evidence of promptitude on the part of the petitioner. Besides the
aforesaid factors, the initial delay of 22 days in filing the application under
section 34 before the Commercial Court remained till filing of the present
application in this court. The submissions made on behalf of the petitioner
with regard to the factors contributing to the delay are uncorroborated
either by way of pleadings or documents in that regard.
9. Learned counsel for the petitioner has relied on an order dated 10th
July, 2020 passed by the Supreme Court in Suo Motu Writ Petition (C)
No.3/2020 in which an earlier order of 23rd March, 2020 extending all
periods of limitation prescribed under The Arbitration and Conciliation Act,
1996 with effect from 15th March, 2020 has been referred to. This order,
however, has to be read in the context of the judgment of the Supreme Court
in Sagufa Ahmed vs. Upper Assam Plywood Products Pvt. Ltd. (Civil Appeal
Nos.3007-3008 of 2020) dated 18th September, 2020 which clarified the
order dated 23rd March, 2020 in Suo Motu Writ Petition (C) No.3/2020 and
held that what was extended by the order dated 23rd March 2020 was only
the period of limitation and not the period up to which delay can be
condoned in exercise of discretion by the statute. It should also be stated
that in said Writ Petition the first order of the Supreme Court dated 23rd
March, 2020 was intended to benefit vigilant litigants who were prevented
due to the pandemic and the ensuing lockdown from initiating proceedings
within the period of limitation prescribed by general or special law. This is
the specific observation of the Supreme Court in Sagufa Ahmed. The order of
the Supreme Court dated 17th December, 2020 passed in M/s. SS Group Pvt.
Ltd. vs. Aaditiya J. Garg in Civil Appeal No.4085 of 2020 was passed on the
specific facts of that case, namely a delay of four days in filing the written
statement before the National Commission.
10. The order of the Supreme Court in Sagufa Ahmed clarifies that the
expression "prescribed period" in section 4 of The Limitation Act 1963
cannot be stretched to mean anything other than the period of limitation
and that any period beyond the prescribed period would fall outside the
period of limitation in which the court specifically has the discretion in
allowing a person to institute certain proceedings. In the present case, the
prescribed period of limitation under section 34(3) of the Act would be three
months from the date on which the party making the application has
received the arbitral award. Since the petitioner received the impugned
Award on 27th February, 2019, the prescribed period under section 34(3) of
the Act expired on 27th May, 2019. The application under section 34 was
filed by the petitioner on 18th June, 2019 after 112 days from the date of
receipt of the Award by the petitioner and hence after a delay of 22 days.
Section 34(3) contemplates that an applicant, who has failed to file the
application under section 34 within the first three months, must take the
leave of the court and upon such leave being granted, and upon the court
being satisfied of the reasons shown, can be permitted to take the benefit of
the additional 30 days. The words of the proviso make it sufficiently clear
that the additional period of 30 days cannot follow as a matter of course and
without the intervention of the court granting the leave as contemplated in
the proviso.
11. The petitioner in this case, did not take steps for seeking condonation
of the delay of 22 days before the Commercial Court and allowed the said
delay to continue till filing of the present application. Sagufa Ahmed also
makes it clear that the order extending all periods of limitation is restricted
only to those litigants who have shown vigilance but have otherwise been
prevented from taking requisite steps by reason of the pandemic.
Unfortunately, the petitioner before this court has not exhibited conduct
akin to that noted in Sagufa Ahmed. It is also not the case of the petitioner
that the petitioner was prevented from taking appropriate steps by reasons
of the pandemic. Moreover, although the certified copy of the order of the
Commercial Court was received by the petitioner on 20th October, 2020, the
present application was filed almost five weeks after the court re-opened
after the Puja vacation. The petitioner has given no explanation for the
intervening period of delay or the absence of requisite steps which should
have been taken by the petitioner in the interregnum.
12. Simplex Infrastructure dealt with the question whether the benefit of
sections 5 and 14 of The Limitation Act can be extended to a party when
there has been a delay beyond the specific statutory limitation prescribed
under section 34(3) of the 1996 Act. In coming to the decision that the delay
in filing of the section 34 application could not have been condoned, the
Supreme Court considered two earlier decisions in Popular Construction Co.
and Consolidated Engineering Enterprises vs. Irrigation Department; (2008) 7
SCC 169 which held that section 5 of The Limitation Act could not be made
applicable to section 34 of the 1996 Act and that section 14 of The
Limitation Act would be applicable to a section 34 application, respectively.
Sri Amar Chand Inani has been cited on behalf of the respondent on the
issue whether the plaintiff in that case was entitled to the benefit of section
4 of The Limitation Act. In the facts of that case, the Supreme Court found
the suit to be barred by limitation by reason of the fact that when the plaint
was returned for presentation to the proper court, the suit can be deemed to
be instituted in the proper court only when the plaint was presented in that
court. Since both the decisions cited on behalf of the respondent, proceed on
the applicability of sections 4 and 14 of The Limitation Act to an application
under Section 34 of the 1996 Act which point has not been argued on behalf
of the petitioner, further discussion on these decisions is not relevant.
13. A.P.411 of 2020 is accordingly dismissed without any order as to
costs.
Urgent Photostat certified copy of this Judgment, if applied for, be
supplied to the parties upon compliance of all requisite formalities.
(MOUSHUMI BHATTACHARYA, J.)
