Ashwani Gas Service vs Indian Oil Corporation Ltd. & Anr
2010 Latest Caselaw 2752 Del

                                                         REPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                           FAO No.35/2009


                                    Date of Decision: May 24, 2010


       ASHWANI GAS SERVICE                 ..... Appellant
                    through Mr. Syed Ali Ahmad, Advocate with
                    Mr. Syed Tanweer Ahmad and Mr. Amitabh
                    Krishan, Advocates

                  versus


       INDIAN OIL CORPORATION LTD. & ANR        ...... Respondents
                     through Mr. M.M.Kalra, Advocate with
                     Mr. Kunal Kalra, Advocate

       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? Yes
2.     To be referred to the reporter or not? Yes
3.     Whether the judgment should be reported in the „Digest‟? Yes

REKHA SHARMA, J. (ORAL)

This appeal has been preferred against the order of Additional

District Judge, Shri Umed Singh Grewal dated October 18, 2008

dismissing the objections filed by the appellant against an arbitral

award dated November 07, 2007 on the ground that the same were

barred by the law of limitation.

The facts are not in dispute and are as under:-

The arbitral award dated November 07, 2007 was received by

the appellant on November 21, 2007. In terms of Section 34(3) of the

Arbitration and Conciliation Act, 1996 (hereinafter referred to as the

Act) which provides that, "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", the

appellant ought to have filed the objections by February 20, 2008.

However, instead of filing the objections in the Court of Additional

District Judge, the appellant filed a writ-petition in this Court on

February 20, 2008. The Registry of this Court raised an objection as

to the maintainability of the writ-petition and consequently returned

the same to the appellant on February 22, 2008. It was only

thereafter, on April 23, 2008, that the appellant filed objections to the

award in the Court of Additional District Judge.

It is not disputed by the learned counsel for the appellant that

the objections thus filed were barred by the law of limitation. He,

however, submits that the delay in filing the objections ought to have

been condoned, as the appellant was misled by his previous counsel

who filed a writ-petition instead of the objections and that a party

cannot be made to suffer for the fault of the counsel.

It is well settled that the limitation for filing objections to the

award is to be calculated as laid down by Section 34(3) of the Act and

the proviso thereto. The said Section grants three months‟ time to a

party to file objections to the award from the date it receives the

same. In so far as the proviso is concerned, it 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." The proviso, thus, extends the period of limitation by

another 30 days, provided the Court is satisfied that the applicant was

prevented by sufficient cause from making the application within the

original period of three months. The crucial words in the proviso are

"but not thereafter". These words in unequivocal term convey that

the court has discretion to condone the delay in filing the application

for setting-aside the award only by 30 days after the expiry of the

original period of three months and that is all. It has no further

discretion.

In the case in hand, even if the extra period of 30 days is

granted to the appellant and the time taken in pursuing the remedy of

writ-petition is excluded in calculating the limitation, then also the

appeal is barred by time.

For the fore-going reasons, there is no merit in the appeal. The

same is dismissed.

REKHA SHARMA, J.

MAY 24, 2010 PC/ka