Delhi High Court
Union Of India vs M/S Rama Contractor on 13 September, 2021
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 13.09.2021
+ O.M.P. (COMM) 255/2021 & IA Nos. 10941/2021 &
10942/2021
UNION OF INDIA ..... Petitioner
Versus
M/S RAMA CONTRACTOR ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr T.P. Singh, Senior Central Government
Counsel.
For the Respondent : Mr Sandeep Sharma, Mr Aman Dhyani and
Ms Kanchan Semwal, Advocates.
CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
IA Nos. 10943/2021 & 10944/2021
1. The petitioner has filed the above-captioned petition under
Section 34 of the Arbitration and Conciliation Act, 1996 (hereafter the
'A&C Act') impugning an arbitral award dated 25.06.2019 (hereafter
the 'impugned award') delivered by the Arbitral Tribunal comprising
of a Sole Arbitrator.
Signature Not Verified
By:DUSHYANT
RAWAL
2. The petitioner has filed the aforesaid application (IA No.
10943/2021) praying that the delay of 632 (six hundred and thirty-two)
days in filing the above-captioned petition be condoned. The petitioner
has also filed an application (IA No. 10944/2021) seeking condonation
of delay of 10 (ten) days in re-filing the above-captioned petition. It is
contended on behalf of the respondent that the petition has been filed
beyond the period that can be condoned by this Court in terms of
proviso to Section 34(3) of the A&C Act and therefore, the applications
are liable to be rejected.
3. Thus, the principal controversy to be addressed is whether this
Court can condone the delay in filing the above-captioned petition and
if so, whether there are sufficient grounds to do so.
4. Certain dates and events are necessary to be noted in order to
address the aforesaid controversy. Admittedly, the impugned award was
received by the petitioner on 26.06.2019 (one day after the Arbitral
Tribunal had delivered the same). The petitioner filed the petition under
Section 34 of the A&C Act in the Court of District Judge, Commercial
Court, Patiala House, New Delhi on 24.10.2019. The said court did not
have any jurisdiction to entertain the present petition and, on
12.02.2021, the petitioner withdrew the petition. The order dated
12.02.2021 passed by the learned District Judge reads as under:
"OMP(COMM.) No. 194/19
UNION OF INDIA Vs. M/S RAMA CONTRACTOR
& ANR.
12.02.2021
Signature Not Verified
By:DUSHYANT
RAWAL
Matter heard via video conferencing.
Present: Sh. Sanjay Yadav, Ld. Proxy Counsel for
Sh. Sanjeev Yadav.
Ld. Counsel for Petitioner (via video
conferencing).
Sh. Aman Dhyani, Ld. Counsel for
Respondent no.1 (via video conferencing).
Proxy Counsel for Petitioner seeks some time
to call Ld. Counsel for Petitioner who is busy else where
in other Court in video conferencing hearing
Be awaited.
Called again.
Present: Sh. Sanjay Yadav, Ld. Proxy Counsel for
Petitioner (via video conferencing).
Sh. Aman Dhyani, Ld. Counsel for
Respondent no.1 (via video conferencing).
Heard. Perused.
Ld. Counsel for Petitioner seeks to withdraw
present objections/petition with liberty to file it at proper
forum.
Ld. Counsel for Petitioner has sent an e-mail
to dedicated e-mail id of the Court with above said
prayer.
Accordingly, petition is dismissed as
withdrawn with liberty prayed for of course subject to
law of limitation
File be consigned to record room."
Signature Not Verified
By:DUSHYANT
RAWAL
5. The petitioner claims that he had filed the above-captioned
petition in this Court on 17.06.2021. The same was returned under
objections and it was re-filed on 07.08.2021. According to the
petitioner, there is a delay of ten days in re-filing the petition and the
petitioner has sought condonation of the same.
6. Mr Sharma, learned counsel appearing for the respondent,
submits that the petition filed before the learned District Judge was
beyond the period of three months and thirty days and therefore, even
if the delay in filing is reckoned from the date on which the above-
captioned petition was first filed before the learned District Judge, the
same was beyond the period of thirty days that could be condoned by
the Court.
7. He drew the attention of this Court to the following passages
from the decision of the Coordinate Bench of this Court in Union of
India v. Wishwa Mittar Bajaj & Sons & Anr.: 141 (2007) DLT 179, in
support of his contention that the period of three months from the
receipt of the impugned award, would expire on 23.09.2019:
"26. Such meaning of a 'month' was accepted by this
court in the pronouncement of the Division Bench
reported at AIR 1973 Delhi 58 Daryodh Singh Vs. UOI
& Ors. In this behalf, the court held thus:-
"15. The deposit of the amount of Rs. 4500/-
was actually made on May 16, 1960. It has,
therefore, to be seen whether the deposit was
made 'two months prior to 15-7-1960'. In its
ordinary accepted sense the expression
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By:DUSHYANT
RAWAL
'month' means a 'calendar month' and not a
'lunar month'.
xxxx xxxx
Thus one month counted from July 15,
1960 would be on June 16 and the second
month counted from June 16 would be on
May 17, 1960. Evidently, therefore, the
deposit made on May 16, 1960 was two
months prior to July 15, 1960."
27. In AIR 1970 AP 234 In re Vs. S. Metha & Ors., the
court considered the expression 'three months of the
date' in Section 106 of the Factories Act, 1948. It was
held by the Court that month has to be construed as the
calendar month as per the English Calendar.
28. Therefore, the expression 'three months' in Section
34(3) has to be construed as three calendar months from
the date on which the signed award made by the
arbitrator was delivered to the party.
29. Learned counsel for the petitioner has submitted that
the award having been received on 28th July, 2005, this
date has to be excluded for the purposes of computation
of the period of three months and consequently, this
period would end on 29th October, 2005.
30. If calculated on the basis of principles laid down by
this court in AIR 1973 Delhi 58 Daryodh Singh Vs.
UOI & Ors., the first month counted from 28th July,
2005 would end on 27th of August, 2005, the second
month would end on 26th of September, 2005 and the
third month would end on 25th of October, 2005.
Even if the contention of learned counsel for the
petitioner was to be accepted that the 28th of July, 2005
was required to be excluded, then if the period of 3
months is construed from 29th July, 2005, the first month
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By:DUSHYANT
RAWAL
would end on 28th of August, 2005, the second month
would end on 27th of September, 2005 and the third
month would end on 26th of October, 2005.
31. On this basis, the period of 30 days which has to be
construed in terms of provision of Section 34(3), such
further period would expire on 24th of November, 2005.
Such period, as per the date suggested by learned
counsel for the petitioner, would expire on 25th
November, 2005.
32. The objections having been filed on 28th November,
2005 were therefore clearly beyond the period of 30
days after the expiry of three months from the date on
which the petitioner received the award.
33. Learned counsel for the petitioner has submitted that
the period of three months has ended on 29 th October,
2005. The period of 30 days thereafter expired on 28th
November, 2005. It has been submitted that 27 th of
November, 2005 was a Sunday and therefore, having
regard to the provision of Section 10 of the General
Clauses Act, such date of limitation being a holiday and
the objections having been filed on the next date are
within limitation.
It has therefore been submitted that objections
were filed on 28th November, 2005 are within the 30
days' period of permissible condonation.
34. In the light of the calculation effected hereinabove,
I have found that looked at from whichever angle, the
condonable period of thirty days has expired before the
27th November, 2005. Therefore nothing turns on the
fact that 27th of November, 2005 was a Sunday. It is not
the petitioner's contention that 24th to 26th of November,
2005 were non-working days for the courts."
Signature Not Verified
By:DUSHYANT
RAWAL
8. He submitted that the period of limitation of three months as
mentioned in Section 34(3) of the A&C Act is required to be construed
as three calendar months. And, the period of one calendar month would
expire one day prior to the corresponding date in the month following
the date from which the period is required to be reckoned. Thus,
according to him, the first calendar month from 26.06.2019 (the date of
receipt of the award) would expire on 25.07.2019; the second month
would expire on 24.08.2019; and the third month would expire on
23.09.2019. He contended that the petition to assail the impugned award
under section 34 of the A&C Act was filed before the District Judge on
24.10.2019. This was beyond the period of thirty days from 23.09.2019
and therefore, the delay in filing could not be condoned.
9. The contention that the period of three months from the receipt
of the impugned award would expire on 23.09.2019 is, plainly,
unmerited.
10. There is no dispute that the period of limitation in filing a petition
under Section 34 of the A&C Act is three months. The expression 'three
months' as used in Section 34(3) of the A&C Act does not refer to a
period of ninety days but a period of three calendar months. The same
was authoritatively held by the Supreme Court in the case of State of
Himachal Pradesh & Anr. v. M/s Himachal Techno Engineers &
Anr.: (2010) 12 SCC 210.The relevant extract from the said decision is
set-out below:
"Re: Question (ii)
Signature Not Verified
By:DUSHYANT
RAWAL
14. The High Court has held that "three months"
mentioned in Section 34(3) of the Act refers to a period of
90 days. This is erroneous. A "month" does not refer to a
period of thirty days, but refers to the actual period of a
calendar month. If the month is April, June, September or
November, the period of the month will be thirty days. If
the month is January, March, May, July, August, October
or December, the period of the month will be thirty-one
days. If the month is February, the period will be twenty-
nine days or twenty-eight days depending upon whether it
is a leap year or not.
15. Sub-section (3) of Section 34 of the Act and the
proviso thereto significantly, do not express the periods of
time mentioned therein in the same units. Sub-section (3)
uses the words "three months" while prescribing the period
of limitation and the proviso uses the words "thirty days"
while referring to the outside limit of condonable delay.
The legislature had the choice of describing the periods of
time in the same units, that is, to describe the periods as
"three months" and "one month" respectively or by
describing the periods as "ninety days" and "thirty days"
respectively. It did not do so. Therefore, the legislature did
not intend that the period of three months used in sub-
section (3) to be equated to 90 days, nor intended that the
period of thirty days to be taken as one month.
16. Section 3(35) of the General Clauses Act, 1897
defines a "month" as meaning a month reckoned according
to the British calendar.
17. In Dodds v. Walker [(1981) 1 WLR 1027 :
(1981) 2 All ER 609 (HL)] the House of Lords held that in
calculating the period of a month or a specified number of
months that had elapsed after the occurrence of a specified
event, such as the giving of a notice, the general rule is that
the period ends on the corresponding date in the
appropriate subsequent month irrespective of whether
some months are longer than others. To the same effect is
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By:DUSHYANT
RAWAL
the decision of this Court in Bibi Salma Khatoon v. State
of Bihar [(2001) 7 SCC 197].
18. Therefore when the period prescribed is three
months (as contrasted from 90 days) from a specified date,
the said period would expire in the third month on the date
corresponding to the date upon which the period starts. As
a result, depending upon the months, it may mean 90 days
or 91 days or 92 days or 89 days.
Re: Question (iii)
19. As the award was received by the Executive
Engineer on 12-11-2007, for the purpose of calculating the
three months period, the said date shall have to be excluded
having regard to Section 12(1) of the Limitation Act, 1963
and Section 9 of the General Clauses Act, 1897.
Consequently, the three months should be calculated from
13-11-2007 and would expire on 12-2-2008. Thirty days
from 12-2-2008 under the proviso should be calculated
from 13-2-2008 and, having regard to the number of days
in February, would expire on 13-3-2008. Therefore the
petition filed on 11-3-2008 was well in time and was not
barred by limitation."
11. In the case of Union of India v. Wishwa Mittar Bajaj & Sons &
Anr. (supra), this Court had held that the period of limitation under
Section 34(3) of the A&C Act was three months and not ninety days but
the calculation of the period of three months is, clearly, erroneous. The
contention that the period of one month would be one day less than the
corresponding date for every one month is obviously erroneous. If the
said method of calculation is carried to a logical end, the period of
twelve months from 1st January of any year would lapse on 18th
December. There is no basis for computing a period described in
calendar months in this manner. In any view, this issue is no longer res
Signature Not Verified
By:DUSHYANT
RAWAL
integra in view of the authoritative decision of the Supreme Court in
M/s Himachal Techno Engineers. (supra) as the court had held that
the period of three months from 13.11.2007 would expire on
12.02.2008.
12. In view of the above, it is clear that the petitioner had filed the
petition before the learned District Judge after a delay of twenty-eight
days from the end of the limitation period of three months as stipulated
under Section 34(3) of the A&C Act. Thus, the delay in filing the said
petition could be condoned if the petitioner satisfied the court that it was
prevented from filing a petition within the stipulated period of three
months from the receipt of the impugned award. The question whether
the petitioner is able to do so is a separate one.
13. The next question to be examined is whether the petition filed in
this Court is within the period that can be condoned by this Court. Mr
Singh, learned counsel for the petitioner contended that since the
petitioner was pursuing the petition before the District Court till
12.02.2021, the said period is liable to be excluded by virtue of Section
14 of the Limitation Act, 1963. He further states that the delay of
12.02.2021 also stands condoned by virtue of the orders passed by the
Supreme Court on 23.03.2020, 10.07.2020 and 27.04.2021 in Re:
Cognizance for Extension of Limitation: Suo Motu Writ Petition
(Civil) No.3/2021.
14. Before proceeding further, it would be relevant to refer to Section
14 of the Limitation Act which reads as under:-
Signature Not Verified
By:DUSHYANT
RAWAL
"14. Exclusion of time of proceeding bona fide in court
without jurisdiction.--
(1) In computing the period of limitation for any suit
the time during which the plaintiff has been
prosecuting with due diligence another civil
proceeding, whether in a court of first instance or of
appeal or revision, against the defendant shall be
excluded, where the proceeding relates to the same
matter in issue and 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.
(2) 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.
(3) Notwithstanding anything contained in rule 2 of
Order XXIII of the Code of Civil Procedure, 1908 (5
of 1908), the provisions of sub-section (1) shall apply
in relation to a fresh suit instituted on permission
granted by the court under rule 1 of that Order, where
such permission is granted on the ground that the first
suit must fail by reason of a defect in the jurisdiction
of the court or other cause of a like nature.
Explanation.--For the purposes of this section,--
(a) in excluding the time during which a former
civil proceeding was pending, the day on which
that proceeding was instituted and the day on
which it ended shall both be counted;
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By:DUSHYANT
RAWAL
(b) a plaintiff or an applicant resisting an appeal
shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall
be deemed to be a cause of a like nature with defect
of jurisdiction."
15. It is apparent that the benefit of Section 14 of the Limitation Act
is available only in cases whether the party seeking such benefit had
pursued the prior proceedings bona fide and with due diligence.
16. In Consolidated Engineering Enterprises v. Principal
Secretary, Irrigation Department and Ors.: (2008) 7 SCC 169) the
Supreme Court had held that the provisions of Section 14 of the
Limitation Act were not excluded in respect of an application under
Section 34 of the A&C Act. The relevant extract from the said decision
is set out below:
"20. Section 29(2) of the Limitation Act inter alia
provides that where any special or local law prescribes
for any suit, appeal or application a period of limitation
different from the period of limitation prescribed by the
Schedule, the provisions of Section 3 shall apply as if
such period was 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 shall apply only insofar as, and to the
extent, they are not expressly excluded by such special or
local law. When any special statute prescribes certain
period of limitation as well as provision for extension up
to specified time-limit, on sufficient cause being shown,
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. As the intention of
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By:DUSHYANT
RAWAL
the legislature in enacting sub-section (3) of Section 34
of the Act is that the application for setting aside the
award should be made within three months and the period
can be further extended on sufficient cause being shown
by another period of 30 days but not thereafter, this Court
is of the opinion that the provisions of Section 5 of the
Limitation Act would not be applicable because the
applicability of Section 5 of the Limitation Act stands
excluded because of the provisions of Section 29(2) of the
Limitation Act. However, merely because it is held that
Section 5 of the Limitation Act is not applicable to an
application filed under Section 34 of the Act for setting
aside an award, one need not conclude that provisions of
Section 14 of the Limitation Act would also not be
applicable to an application submitted under Section 34
of the Act of 1996.
xxxx xxxx xxxx
22. The policy of the section is to afford protection to a
litigant against the bar of limitation when he institutes a
proceeding which by reason of some technical defect
cannot be decided on merits and is dismissed. While
considering the provisions of Section 14 of the Limitation
Act, proper approach will have to be adopted and the
provisions will have to be interpreted so as to advance the
cause of justice rather than abort the proceedings. It will
be well to bear in mind that an element of mistake is
inherent in the invocation of Section 14. In fact, the
section is intended to provide relief against the bar of
limitation in cases of mistaken remedy or selection of a
wrong forum. On reading Section 14 of the Act it
becomes clear that the legislature has enacted the said
section to exempt a certain period covered by a bona fide
litigious activity. Upon the words used in the section, it is
not possible to sustain the interpretation that the principle
underlying the said section, namely, that the bar of
limitation should not affect a person honestly doing his
best to get his case tried on merits but failing because the
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By:DUSHYANT
RAWAL
court is unable to give him such a trial, would not be
applicable to an application filed under Section 34 of the
Act of 1996. The principle is clearly applicable not only
to a case in which a litigant brings his application in the
court, that is, a court having no jurisdiction to entertain it
but also where he brings the suit or the application in the
wrong court in consequence of bona fide mistake or
(sic of) law or defect of procedure. Having regard to the
intention of the legislature this Court is of the firm
opinion that the equity underlying Section 14 should be
applied to its fullest extent and time taken diligently
pursuing a remedy, in a wrong court, should be excluded.
xxxx xxxx xxxx
24. We may notice that in similar circumstances the
Division Bench of this Court in State of Goa v. Western
Builders [(2006) 6 SCC 239] has taken a similar view. As
observed earlier the intention of the legislature in
enacting Section 14 of the Act is to give relief to a litigant
who had approached the wrong forum. No canon of
construction of a statute is more firmly established than
this that the purpose of interpretation is to give effect to
the intention underlying the statute. The interpretation of
Section 14 has to be liberal. The language of beneficial
provision contained in Section 14 of the Limitation Act
must be construed liberally so as to suppress the mischief
and advance its object. Therefore, it is held that the
provisions of Section 14 of the Limitation Act are
applicable to an application submitted under Section 34
of the Act of 1996 for setting aside an arbitral award."
17. Although the benefit of Section 14 of the Limitation Act must be
extended liberally. It is incumbent upon the party seeking such benefit
to establish from the record that the necessary conditions as stipulated
in Section 14 of the Limitation Act are met. The period in pursuing
proceedings, which fail on account of defect in jurisdiction or such
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By:DUSHYANT
RAWAL
reasons, is available only if it is established that the same were pursued
diligently and in good faith. However, in the present case this is a
contested issue as the learned counsel for the respondent submitted that
the petitioner was not pursuing the proceedings before the learned
District Judge diligently. He further contended that the petitioner had
not taken steps despite being informed that the Court had no
jurisdiction.
18. It is relevant to note that in the present case, the petitioner has not
filed any application under Section 14 of the Limitation Act seeking
condonation of delay. Mr Singh's contention that it is not necessary for
the petitioner to file any such application is unmerited. In the event the
petitioner desired to avail the benefit of Section 14 of the Limitation
Act, it was necessary for the petitioner to establish the necessary
conditions.
19. The above application filed by the petitioner under Section 5 of
the Limitation Act is also of little assistance to the petitioner. This is
because the said application does not satisfy the conditions as required
to be met for availing the benefit of Section 14 of the Limitation Act.
This is apparent from the contents of the said application, which are set
out below:
"1. That the applicant / objector have submitted an
objection application before the Hon'ble Court against the
order dated 25/06/2019 passed by the Sole Arbitration
Tribunal.
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By:DUSHYANT
RAWAL
2. That the order has been passed on 25/06/2019 by the
Sole Arbitration Tribunal in the above mentioned case.
The copy of which was received on 26/06/2019 by the
objector/applicant.
3. That after receiving the copy of the order, the award was
thoroughly examined by then executive engineer and he
was transferred and the present executive engineer joined
the office on 04.07.201 as additional charge and he was
informed about the award by the other officers and
thereafter he went through the award and forwarded the
same to S.E. and it was returned from S.E. office to E.E.
office on 24.01.2019 with some objection and clarification
and same was again put up with the S.E. office on
30.08.2019 and as copy of the award was also sent to the
Senior Counsel/CPWD on 29.07.2019 after going through
various channels a legal opinion was given by the Senior
Counsel/CPWD for Union of India on dated 23.10.2019 to
challenge the award.
4. That the objector /Applicant department requested the
present Counsel for filling the Objection U/s 34 of
Arbitration and Conciliation Act 1996 and same got
drafted and filed the Petition.
5. That the applicant/objector/appellant submits that the
present objection was filed in District Court /IN THE
HON'BLE COURT OF DISTRICT JUDGE, PATIALA
HOUSE COURTS, NEW DELHI, on 12.02.2021 which
was dismissed as withdrawn with liberty to approach the
appropriate forum wide order dated 25.06.2019, which
further caused delay of 632 days
6. That the applicant/objector/appellant submits that if the
Objection is not taken on record by condoning the delay
due to the reasons above mentioned in submission of the
objection U/s 34 of Arbitration and Conciliation Act 1996,
this will cause injustice to the Objector.
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By:DUSHYANT
RAWAL
7. That the total no. of 632 days delay in filing the present
Objection U/s 34 of Arbitration and Conciliation Act
1996."
20. It is seen from the above that there is no assertion that the
petitioner had pursued the above petition diligently before the learned
District Court. There is also no averment that the petitioner had filed a
petition before the District Court on the bona fide belief that the said
Court would have the jurisdiction to entertain the same. The petitioner
has also not produced various orders passed by the learned District
Judge to establish that the petition was being pursued diligently.
21. In view of the above, this Court is unable to accept that the period
commencing from the date on which the petition was filed before the
District Judge (24.10.2019) and the date on which it was withdrawn
(12.02.2021) is liable to be excluded by virtue of Section 14 of the
Limitation Act.
22. Having stated the above, this court has also examined the
question whether the inordinate delay in filing can be condoned if the
benefit of Section 14 of the Limitation Act is extended in this case. It
is at once apparent that even if the benefit of Section 14 of the
Limitation Act is extended to the petitioner and the period from
24.10.2019 to 12.02.2021 is excluded, the present petition cannot be
construed having been filed within the period of thirty days of expiry of
the stipulated period of limitation that can be condoned.
23. The petitioner had withdrawn the present petition from the
learned District Court on 12.02.2021. However, it took no immediate
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RAWAL
steps for filing the same in this Court. The filing log indicates that a
petition comprising of 51 pages was filed on 17.06.2021. The said
petition was neither accompanied by a statement of truth nor the
impugned award. In fact, the petition was not accompanied by any
documents at all. This Court is unable to accept that the petition filed
on that date would be considered as a petition at all, and the said filing
must be considered as non-est.
24. In addition to the above, there are also other defects as noted by
the Registry in the filing log. The petition was marked for re-filing on
05.07.2021. It was, thereafter, filed on 07.08.2021 (thirty-three days
thereafter). The petition and documents now comprised of 269 pages
(as against 51 pages filed earlier). However, it was still defective.
Consequently, it was returned by the Registry on 09.08.2021. It was re-
filed on the very same day but the defects were not rectified. It was
once again returned as defective on 10.08.2021 and re-filed on
12.08.2021. The petition and documents now comprised of 280 pages.
The petition was still defective and therefore, was returned on
16.08.2021. It was again re-filed on 21.08.2021, however, it continued
to be defective. It was finally re-filed on 24.08.2021 and at the request
of the learned counsel for the petitioner, it was directed to be put up
along with objections.
25. Even if it is accepted that the period between 24.10.2019 and
12.02.2021 is excluded, the petitioner had barely two days to file the
above-captioned petition before this Court in order to assert that it was
filed within the period of thirty days after the expiry of the period of
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By:DUSHYANT
RAWAL
limitation of three months as stipulated in Section 34(3) of the A&C
Act. As stated above, this is assuming that the benefit of Section 14 of
the Limitation Act is extended to the petitioner.
26. However, the petitioner took more than four months to file the
petition in this Court and as stated above, the petition as filed, was liable
to be considered as non-est. In the circumstances, this Court is unable
to accept that the petition can be construed as having been filed within
a period of thirty days from the expiry of three months from the date of
receipt of the impugned award.
27. The reliance placed by Mr Singh on the orders passed by the
Supreme Court in Re: Cognizance for Extension of Limitation: Suo
Motu Writ Petition (Civil) No.3/2021, is misplaced.
28. In Sagufa Ahmed & Ors. v. Upper Assam Plywood Products
Pvt. Ltd. & Ors.: (2021) 2 SCC 317, the Supreme Court had clarified
that the order dated 23.03.2020 passed by the Supreme Court in Suo
Motu Writ Petition (Civil) 3/2020 would apply to the period of
limitation as stipulated and not to the period up to which the delay could
be condoned in exercise of discretion conferred by the statute.
Paragraphs 18 and 19 of the said decision is set out below:
"18. To get over their failure to file an appeal on
or before 18.03.2020, the appellants rely upon the order
of this Court dated 23.03.2020 in Suo Motu Writ Petition
(Civil) No.3 of 2020. It reads as follows:
"This Court has taken Suo Motu
cognizance of the situation arising out of the
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By:DUSHYANT
RAWAL
challenge faced by the country on account of
Covid-19 Virus and resultant difficulties that
may be faced by litigants across the country in
filing their petitions/applications/suits/appeals/
all other proceedings within the period of
limitation prescribed under the general law of
limitation or under Special Laws (both Central
and/or State).
To obviate such difficulties and to
ensure that lawyers/litigants do not have to
come physically to file such proceedings in
respective Courts/Tribunals across the country
including this Court, it is hereby ordered that a
period of limitation in all such proceedings,
irrespective of the limitation prescribed under
the general law or Special Laws whether
condonable or not shall stand extended w.e.f.
15th March 2020 till further order/s to be
passed by this Court in present proceedings.
We are exercising this power under Article
142 read with Article 141 of the Constitution of
India and declare that this order is a binding
order within the meaning of Article 141 on all
Courts/Tribunals and authorities.
This order may be brought to the notice of
all High Courts for being communicated
to all subordinate Courts/Tribunals within
their respective jurisdiction.
Issue notice to all the Registrars General of
the High Courts, returnable in four weeks."
19. But we do not think that the appellants can take refuge
under the above order. What was extended by the above
order of this Court was only "the period of limitation"
and not the period upto which delay can be
condoned in exercise of discretion conferred by the
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RAWAL
statute. The above order passed by this Court was intended
to benefit vigilant litigants who were prevented due to the
pandemic and the lockdown, from initiating proceedings
within the period of limitation prescribed by general or
special law. It is needless to point out that the law of
limitation finds its root in two latin maxims, one of which
is Vigilantibus Non Dormientibus Jura Subveniunt which
means that the law will assist only those who are vigilant
about their rights and not those who sleep over them."
[ highlighted in bold for emphasis]
29. In view of the above, this Court accepts the contention that the
delay in the present case far exceeds thirty days beyond the period of
limitation of three months and therefore, this Court cannot condone the
same.
30. This Court also considers it apposite to note that the petitioner
had not provided any reasonable explanation, which could persuade this
Court to accept that the petitioner was prevented from filing the above-
captioned petition within the period of three months as prescribed under
Section 34(3) of the A&C Act. As noted above, the only explanation
provided for the delay in filing the petition is that the Executive
Engineer had joined the office on 04.07.2019 and after going through
various channels, a legal opinion was given by the senior counsel,
CPWD on 23.10.2019 to challenge the award. This explanation as set
out in Paragraph 3 of the petitioner's application (IA no. 10943/2021)
is the only explanation of delay. There is not even an attempt to explain
the delay in filing after 12.02.2021.
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RAWAL
31. In view of the above, the benefit of proviso to Section 34(3) of
the A&C Act would not be available to the petitioner.
32. The applications are, accordingly, dismissed.
33. In view of the above, the above captioned petition is dismissed
as filed beyond the period of limitation as prescribed.
34. All pending applications are also disposed of.
VIBHU BAKHRU, J
SEPTEMBER 13, 2021
RK
Signature Not Verified
By:DUSHYANT
RAWAL
