Delhi High Court
Delhi Jal Board vs Vijay Kumar Goel And Anr. on 28 October, 2005
Equivalent citations: 2005 (3) ARBLR 499 Delhi, 124 (2005) DLT 712, 2005 (85) DRJ 225
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
Page 1891
1. The application for condensation of delay in refiling has not been filed. It is, however, pointed out to learned counsel for the petitioner that even assuming this delay in refiling is condoned, the objections cannot be entertained for the reasons set out in the Order dated 22.10.2005.
2. Learned counsel for the petitioner seeks to urge, rightly so, that the objections as framed do not incorporate specifically the plea regarding the interpretation of escalation clause 10CC. The grounds which have been taken are all on the issue of re-appreciation of evidence, which cannot be gone into in these proceedings. The only other ground is that the Award is contrary to the terms of the Agreement. In this behalf, learned counsel for the petitioner states that this plea should be considered as the plea in respect of interpretation of escalation clause 10CC. In my considered view, this is not possible. If there was a plea to be taken by the petitioner impugning the Award dated 10.03.2005 on the issue of the interpretation of escalation clause 10CC, the plea ought to have been taken specifically.
3. Learned counsel for the petitioner states that he may be permitted to incorporate this plea through additional objections. This is also not possible for the reason that such an objection today would be barred by time. In this behalf, reference may be made to sub-section (3) of Section 34 of the Page 1892 Arbitration and Conciliation Act, 1996 (hereinafter to be referred to as, 'the said Act') which reads as under :-
"34. Application for setting aside arbitral award. -
...
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter."
4. The Award is dated 10.03.2005. The date when the Award was received is stated to be 14.03.2005. Thus, the time-period of 3 months stipulated in sub-section (3) of Section 34 of the said Act elapsed on 13.06.2005. The objections were filed on 02.07.2005, but were returned under objections and were refiled only on 13.10.2005.
5. A judgment of Division Bench of the Gauhati High Court has come to the knowledge of this Court in Assam Urban Water Supply and Sewerage Board, Guwahati v. Subhash Project and Marketing Ltd. and Anr., where it has been held that no application under Section 34 of the said Act can be entertained beyond the period of 3 months and 30 days as provided in sub-section (3) of Section 34 and proviso to the same. This is specifically so since proviso ends with the words 'but not thereafter'. The Division Bench has further gone on to hold that there has been an exclusion of the provisions of Section 4 of the Limitation Act, 1963 which enable the filing of a suit on a date subsequent to the expiry of the period prescribed in a given situation when the period expires on a holiday. In the present case, however, the petition was filed only on the re-opening day, i.e., 02.07.2005.
6. Be that as it may, even if the re-opening day was the relevant date, 30 days period from the same expired on 01.08.2005. Thus, it is not permissible for the petitioner to file any additional objections at this stage.
7. It may be noticed that the judgment of Division Bench of Gauhati High Court in Assam Urban Water Supply and Sewerage Board, Guwahati's case (supra) referred to judgment of the Apex Court in Union of India v. Population Construction Co., where it was held that Section 5 of the Limitation Act, 1963 were not applicable to proceedings under Section 34 of the said Act in view of the expression 'but not thereafter' used in sub-section (3) of Section 34 of the said Act.
8. The petitioner has, thus, not taken the objection which could be considered within the parameters of Section 34 of the said Act and cannot now be permitted to file new objections in view of the provisions of sub-section (3) of Section 34 read with the proviso thereto.
9. In view of the aforesaid, I find no merit in the petition.
10. Dismissed.
