Puneet Coop. G/H Society vs M/S Chand Construction Co.
2010 Latest Caselaw 20 Del

                                                                    UNREPORTABLE

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                FAO No.97/2005


                                       Date of Decision: January 06, 2010


       PUNEET COOP. G/H SOCIETY                ..... Appellant
                     Through Mr. Nalin Tripathi, Advocate

                          versus


       M/S CHAND CONSTRUCTION CO.         ..... Respondent
                    Through Mr. Sandeep Sharma, Advocate


       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the „Digest‟? No

REKHA SHARMA, J. (ORAL)

This appeal is directed against the order of an Additional

District Judge dated December 21, 2004 dismissing an application

under Section 5 of the Limitation Act for condonation of delay in filing

objections to an arbitral award dated August 18, 2003 and

consequently dismissing the objections as barred by limitation.

The facts are not in dispute.

The award in question was rendered on August 18, 2003. A

copy of the same was received by the appellant on August 23, 2003.

The appellant was aggrieved by the arbitral award. Hence, in terms

of Section 34 of the Arbitration and Conciliation Act, 1996

(hereinafter called the Act), it ought to have filed an application for

setting-aside of the award within three months from the date it had

received the same. The three months‟ period expired on

November 22, 2003. However, no application was filed. What was

filed was a civil suit challenging the award. It was dated

November 20, 2003. The suit was held to be not maintainable and

hence, it was dismissed on March 25, 2004. Consequent upon the

dismissal of the suit, the appellant, as noticed above, filed objections

to the award under Section 34 of the Act along with an application for

condonation of delay. The objections and the application were dated

May 20, 2004.

It is provided in Section 14 of the Limitation Act, 1963 that in

computing the period of limitation for any application, the time during

which the applicant has been prosecuting with due diligence another

civil proceeding, whether in a court of first instance or of appeal or

revision, against the same party for the same relief shall be excluded,

where such proceeding is prosecuted in good faith in a court which,

from defect of jurisdiction or other cause of a like nature, is unable to

entertain it.

Having regard to the aforementioned provision, the learned trial

Court while considering the application for condonation of delay has

excluded the period between November 20, 2003 and March 25, 2004

as that much time was spent by the appellant in prosecuting the civil

suit. The trial Court has also granted to the appellant the benefit of

the proviso to Section 34(3) of the Act which says 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." However, even after giving the benefit of the said

provision, the learned trial Court has found that the application

challenging the award was still not within time. The relevant

paragraph of the judgment reads as under:-

"In this case the copy of award was supplied to objector on 21.8.2003. He could have filed objections on 20.11.2003 but instead of filing objections he filed suit for declaration and injunction, i.e. on the very last date of filing the objections. The suit was dismissed on 25.3.2004. He is entitled to exclusion of time from 20.11.2003 to 25.3.2004 then he could have filed objections on 26.3.2004. Even if one month more time is given as provided under Section 34 of Arbitration then he should have filed objections on 26.4.2004. These objections were filed on 20.5.2004 which is otherwise barred by limitation, though, already stated provisions of Section 5 to 24 of Limitation Act are not applicable to these proceedings. The application is dismissed and consequently objections are dismissed as barred by limitation."

In my view, the impugned order suffers from no infirmity. The

appeal is dismissed. The awarded amount which is lying deposited in

this Court is directed to be released to the respondent.

REKHA SHARMA, J.

JANUARY 06, 2010 PC/ka