Chattisgarh High Court
Raipur Municipal Corporation vs M/S Associated Software ... on 27 July, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
ARBA No. 19 of 2022
Raipur Municipal Corporation Through The Commissioner,
Raipur Municipal Corporation, Raipur Chhattisgarh.
---- Petitioner
Versus
M/s Associated Software Consultancy, A Registered Partnership
Firm Having Its Registered Office At, Nagpur Road Camp,
Amravati, Tehsil And District Amravati, Through Its Constituted
Attorney Mr. Umesh Borkhade, Aged About 53 Years, S/o Mr.
Krushnarao Borkhade, R/o Nagpur Road Camp Amravati, Tehsil
And District Amravati (M.H.).
---- Respondent
For Appellant Mr. Saurabh Sharma, Advocate
For Respondent /State Mr. Harish Dangre and Vikram Dixit ,
Advocates
DB.: Hon'ble Mr. Justice Goutam Bhaduri &
Hon'ble Mr. Justice Deepak Kumar Tiwari
Judgment on Board by Goutam Bhaduri, J.
27/7/2022
1. Heard.
2. The present appeal is against the order dated 7.5.2022 in an
unregistered M.J.C/2021, whereby, the Commercial Court
(District Level), Nava Raipur, Chhattisgarh, has dismissed the
appeal preferred by the appellant under Section 34 of the
Arbitration and Conciliation Act, 1996 (in short "the Act, 1996").
3. The brief facts of this case are that an award was passed by the
Arbitrator on 7.4.2018. According to the appellant, the said
award was received by the appellant on 9.4.2018. Initially,
Arb.R. 11/2019 was filed before the High Court on 15.4.2019,
which was eventually dismissed as withdrawn vide order dated
15.5.2019 with liberty to file a duly constituted appeal before
the Commercial Court at Raipur. Thereafter, an appeal was filed
before the Commercial Court at Raipur on 23.7.2021 along with
an application under Section 14 read with Section 5 of the
Limitation Act, 1963 (in short "the Limitation Act"), which was
dismissed.
4. Learned counsel for the appellant would submit that the
appellant could not know that the petition preferred before
the High Court has been withdrawn and only when the notice
of execution was served, they came to know about it.
Thereafter, the appellant, after following due procedure, filed
an appeal along with an application under Section 14 read with
Section 5 of the Limitation Act for condonation of delay. He
would submit that on reading of sub-section (1) of Section 43 of
the Act, 1996, it is clear that the Limitation Act shall apply to
arbitrations as it applies to proceedings in Court. Consequently,
the Commercial Court should have taken notice of the facts
enumerated in the application filed under Section 5 of the
Limitation Act, wherein, the reasons as to why the delay
occurred, in detail, were explained. He further submits that
when the first proceeding was withdrawn before the High
Court, liberty was granted to the appellant to file an appeal
before the Commercial Court and the limitation was
automatically extended by the order of the Court and by
subsequent proceeding of Hon'ble the Supreme Court in a
Miscellaneous Application No.21 of 2022 and other connected
application, including suo motu WPC No.3 of 2020.
5. Per contra, learned counsel for the respondents submits that
on a plain reading of Section 43 of the Act, 1996, on which,
learned counsel for the appellant has placed reliance, it appears
that the same would not be applicable in the case of appeals.
He would submit that the limitation would be applicable to the
arbitration proceeding alone and Section 21 of the Act, 1996
only confines to arbitral proceeding and not the appellate
proceeding. It is stated that the challenge to award would be
governed by a separate proceeding provided under Section 34
of the Act, 1996. It is further pleaded that it is not disputed that
the benefit of Section 14 can be given under the Limitation Act,
but not beyond the period mentioned under Section 34. He
also submits that if the time was spent on account of
prosecuting a proceeding before a wrong Court, the period of
30 days can be excluded from 15.4.2019 to 15.5.2019 subject to
limitations of Section 34 of the Act, 1996. He would submit that
the benefit also cannot be extended to the appellant for the
reason that the appeal should have been preferred as per the
time prescribed under Section 34 of the Act, 1996, which has
already expired even before 15.4.2019 in an earlier round of
litigation before this Court. Therefore, the instant appeal is
liable to be dismissed.
6. We have heard learned counsel for the parties and perused the
record of the appeal.
7. The date of award which was subject matter of challenge is
'7.4.2018'. According to the appellant, the date of receipt of the
award by the appellant is '9.4.2018'. As per Section 34 of the
Act, 1996, the prescribed period for setting aside the award is 3
months, which would mean that the initial date would be
8.7.2018 and subsequently, the extended period of 30 days as
per proviso to sub-section (3) of Section 34 of the Act, 1996
would end on 7.8.2018.
8. Submission was made by learned counsel for the appellant that
by virtue of Section 43(1) of the Act, 1996, the application under
the Limitation Act has been made operative. In this context, sub-
section (2) of Section 29 of the Limitation Act would be
relevant, the extract of which is reproduced hereunder :
"29 Savings (The Limitation Act, 1963)
(1) xxx
(2) Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from
the period prescribed by the Schedule, the provisions of
section 3 shall apply as if such period were the period
prescribed by the Schedule and for the purpose of
determining any period of limitation prescribed for any suit,
appeal or application by any special or local law, the
provisions contained in Sections 4 to 24 (inclusive) shall
apply only in so far as, and to the extent to which, they are
not expressly excluded by such special or local law.
(3) xxx
(4) xxx"
9. As has been already held by Hon'ble the Supreme Court in the
matter of State of Goa Vs. Western Builders, 2006 AIR SCW
3436, that if special period of limitation has been prescribed for
making application for any condonation of delay or for any
other purpose then the period of limitation prescribed under
the special law shall prevail and to that extent the provisions of
the Limitation Act shall stand excluded. Hence, sub-section (2)
of Section 34 along with the proviso to Section 34 of the Act,
1996, would exclude the applicability of Section 5 of the
Limitation Act by virtue of sub-section (2) of Section 29 of the
Limitation Act.
10. The principle as laid down in the matter of Union of India Vs.
Popular Construction Co., (2001) 8 SCC 470, which was
reiterated by Hon'ble the Supreme Court in the matter of
Western Builders (supra), with regard to the applicability of
Section 5, Hon'ble the Supreme Court, while interpreting the
provisions of sub-section 3 of Section 34, has clearly observed
that the words "but not thereafter" used in Section 34 indicates
that applicability of Section 5 of the Limitation Act is prohibited
to that extent. Further, in a recent judgment rendered in the
matter of Mahindra and Mahindra Financial Services Limited
Vs. Maheshbhai Tinabhai Rathod and others, (2022) 4 SCC
162, Hon'ble the Supreme Court held that if a petition is filed
under Section 34 beyond the prescribed period of three
months, the Court has discretion to condone the delay only to
the extent of thirty days provided sufficient cause is shown and
Section 5 would not be applicable to condone the delay beyond
the period prescribed under Section 34(3) of the Act, 1996.
11. The submission of learned counsel for the respondents that
Section 43 of the Act, 1996, even otherwise, is not applicable
when the award is under challenge, cannot be shelved for the
reason that the language used in Section 43 would show that
the limitation would be applicable to arbitrations and sub-
section (2) of Section 43 refers to Section 21, which speaks
about the commencement of arbitral proceedings and not
appeal.
12. Here in the instant case, after the arbitral proceedings, the
award was passed and the same was challenged under Section
34 of the Act, 1996. Therefore, it appears that Section 43
excludes the applicability of the Limitation Act in its entirety to
challenge the award, which is an outcome of arbitration
proceedings. The facts of the case would show that the award
was passed on 7.4.2018 and it was said to be received on
9.4.2018. The same was under challenge before the High Court
in ARB R No.11/2019. Perusal of the memo of application filed
in such ARB R No.11/2019, would show that no whisper has
been made as to the reason why the award was challenged after
a long period i.e. on 15.4.2019, which only goes to show the fact
that the limitation to challenge the award dated 7.4.2018
already stood expired mainly after the extended date of
8.7.2018 as per Section 34(3) of the Act, 1996. In the result, the
benefit granted by Hon'ble the Supreme Court in
Miscellaneous Application No.21 of 2022 and other connected
application, including suo motu WPC No.3 of 2020, wherein, the
limitation was extended in cases in which it was expiring
between 15.3.2020 to 28.2.2022, cannot be granted to the
appellant in the present case.
13. For the foregoing, this Court is of the view that the impugned
order of the Commercial Court is well- merited, which does not
call for any interference.
14. This appeal being devoid of merits is liable to be and is hereby
dismissed.
Sd/- Sd/-
( Goutam Bhaduri) ( Deepak Kumar Tiwari)
Judge Judge
Shyna
ARBA No. 19 of 2022
HEAD-NOTE
Applicability of Section 5 of the Limitation Act is excluded
by virtue of sub-section (2) of Section 29 of the Limitation
Act in arbitral appeal.
Period of Limitation cannot be extended beyond the
period prescribed under Section 34(3) of the Arbitration
and Conciliation Act, 1996.
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