Gujarat High Court
Surendranagar Dudhrej Vadhwan ... vs Soham Consultancy Services on 7 February, 2023
Bench: A.J.Desai
C/FA/1703/2022 ORDER DATED: 07/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1703 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/FIRST APPEAL NO. 1703 of 2022
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SURENDRANAGAR DUDHREJ VADHWAN MUNICIPALITY
Versus
SOHAM CONSULTANCY SERVICES
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Appearance:
HARSH K RAVAL(9068) for the Appellant(s) No. 1
PARAS K SUKHWANI(8284) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 07/02/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
1. By way present appeal, present appellant - original applicant has
challenged the judgment and order dated 16.03.2022 passed by
learned 5th Additional District Judge, Surendranagar, below Exh.
20 in Civil Misc. Application No. 34 of 2020, by which, the
application filed by present appellant to condone the delay of 672
days in filing an application under Section 34 of the Arbitration
and Conciliation Act, 1996 (hereinafter referred to as 'the Act' for
short).
2. In response to notice issued by this Court, the respondent has
appeared through Mr. Paras Sukhwani learned advocate and
opposed this appeal by filing affidavit-in-reply.
C/FA/1703/2022 ORDER DATED: 07/02/2023
3. Short facts arise from the record are as under:
3.1. The award dated 14.04.2016 passed by Sole Arbitrator directing
present appellant to pay Rs.84,68,256.07/- with running interest
at the rate of 9% from the date of claim i.e. 01.10.2014 came to
be challenged by present appellant by way of filing writ petition
being Special Civil Application No. 5221 of 2016 and the said writ
petition was withdrawn on 12.12.2018.
3.2. Thereafter, the appellant, for the first time, challenged the
aforesaid award by filing Civil Misc. Application No. 34 of 2020.
Learned trial Court raised objections about delay in filing the
application under Section 34 of the Act, and therefore, an
application under Section 5 of the Limitation Act came to be filed
to condone the delay of 672 days. The said application was
opposed by the respondent in view of specific provisions about
the limitation provided under Section 34(3) of the Act. Learned
Judge accepted the submission made by present respondent and
dismissed the application filed by present appellant under
provision of the Limitation Act.
3.3. Hence, present appeal.
4. Mr. Harsh Raval, learned advocate for present appellant, would
submit that under bonafide mistake, present appellant filed a writ
petition challenging the award; however, having come to know
about availability of appropriate remedy under Section 34 of the
Act, present appellant withdrew the writ petition on 12.12.2018.
He would submit that thereafter Covid-19 started on March, 2020
C/FA/1703/2022 ORDER DATED: 07/02/2023
and ultimately, an application was filed on 04.08.2020. He would
submit that learned trial Court has committed error in rejecting the
application filed by present appellant under the provision of
Limitation Act and therefore, present appeal may be allowed.
5. On the other hand, Mr. Paras Sukhwani, learned advocate for the
respondent, opposed this petition. He would submit that Sub-
Section-3 of Section-34 of the Act provided the limitation of filing
the application for setting aside arbitral award. Section - 34(3) of
the Act makes clear that an application for setting aside may not
be made after 90 days; however, the Court can extend the period
of limitation on having found sufficient reasons but cannot extend
more that 30 days and therefore, in all, 120 days are available to
the concerned party, who intends to challenge the award passed
by the Arbitrator. In support of his submission, he has relied upon
the decision of the Hon'ble Court in the case of Mahindra and
Mahindra Financial Services Limited Vs. Maheshbhai Tinabhai
Rathod and Ors. reported in (2022) 4 SCC 162. and would submit
that present appeal may be dismissed.
6. We have heard learned advocates appearing for the respective
parties. Perused the order dated 16.03.2022 passed by learned
Trial Court below Exh. 20 in Civil Misc. Application No. 34 of
2020.
7. It is an undisputed fact that the Sole Arbitrator has passed the
award on 14.04.2016. As per Section-34(3) of the Act, the
aggrieved party was supposed to challenge the same within a
period of 90 days i.e. upto 14.07.2016; however, the appellant
C/FA/1703/2022 ORDER DATED: 07/02/2023
would have filed an application under Section 5 of the Limitation
Act for condonation of delay within a period of 30 days after
completion of 90 days as prescribed under Section 34(3) of the
Act. Even as far as the submission made by learned advocate for
the applicant about filing of petition is concerned, it is an disputed
fact that the writ petition was filed in on 13.02.2017, which was
ultimately withdrawn in the year 2018. Even, thereafter, no
application has been filed by present appellant upto 21.12.2022.
8. Section-34(3) of Act reads as under:
34. Application for setting aside arbitral award.--
(1) XXX XXX XXX XXX
(2) XXX XXX XXX XXX
(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.
9. As per Section 34(3) of the Act, the aggrieved party is supposed
to challenge the award within a period of 90 days ; however, the
Court can consider to extend the time if there is sufficient cause
shown in the application subject to file such application within a
period of 30 days after completion of a period prescribed under
Section 34(3) of the Act. The aforesaid facts clearly establishes
that the application was filed beyond the prescribed period of
limitation, and therefore, the decision of the Hon'ble Supreme
C/FA/1703/2022 ORDER DATED: 07/02/2023
Court in the case of Mahindra and Mahindra Financial Services
Limited (Supra) squarely applicable in present case. Therefore,
we do not find any reasons to entertain with the order passed by
the learned trial Court. Hence, appeal is dismissed. Notice
discharged.
10. In view of the order passed in appeal, connected civil application
does not survive. Accordingly, civil application stands disposed of
as not survived. Notice discharged.
(A.J.DESAI, J)
(RAJENDRA M. SAREEN,J)
F.S.KAZI
