Himachal Pradesh High Court
The State Of H.P. Through vs Unknown on 14 December, 2021
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 14th DAY OF DECEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
ARBITRATION APPEAL No. 11 OF 2021
Between:-
1. THE STATE OF H.P. THROUGH
PRINCIPAL SECRETARY (PW), H.P.
SECTT. SHIMLA-171002.
2. THE EXECUTIVE ENGINEER, H.P.
PWD, DIVISION DODRA KAWAR,
DISTT. SHIMLA, HP.
r ..........APPELLANTS
(BY M/S ADARSH SHARMA, SUMESH
RAJ AND SANJEEV SOOD,
ADDITIONAL ADVOCATE GENERALS
WITH MR. KAMAL KANT CHANDEL,
DEPUTY ADOVCATE GENERAL)
AND
SH. DEEPAK S/O SHRI KISHORI LAL,
R/O VILLAGE MADHARLI, TEHSIL
ROHRU, DISTRICT SHIMLA, H.P.
........RESPONDENTS
(BY MR. J.S. BHOGAL, SENIOR
ADVOCATE WITH MR. T.S. BHOGAL,
ADVOCATE)
___________________________________________________________
Whether approved for reporting: No
This appeal coming on for hearing this day, Hon'ble Mr.
Ajay Mohan Goel, delivered the following:-
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2
JUDGMENT
By way of this appeal filed under Section 37 of the
.
Arbitration and Conciliation Act, 1996, the appellants have
challenged order/judgment dated 06.04.2021, passed by the Court
of learned District Judge, Shimla, in arbitration case titled as The
State of H.P. and another versus Sh. Deepak, vide which, an
application filed under Section 36(4) of the Arbitration and
Conciliation Act, for condonation of delay in filing the objections
under Section 34 of the Arbitration and Conciliation Act, against
award dated 01.10.2019, stands dismissed by the learned Court
below.
2. Brief facts necessary for the adjudication of this appeal
are as under:-
Feeling aggrieved by an award passed under the
Arbitration and Conciliation Act, dated 01.10.20219, signed copy
whereof was provided to the parties on the same date, Objections
were preferred under Section 34 of the Arbitration and Conciliation
Act by the State of Himachal Pradesh-Appellants herein. Along
with the Objections, an application was filed under Section 36(4) of
the Arbitration and Conciliation Act for condonation of delay in
filing the same. These Objections along with the application for
condonation of delay was filed on 17.02.2020, i.e. on 138th day
after passing of the arbitration award.
.
3. For the purpose of record, it is relevant to mention that
post winter vacations, the Court of learned District Judge, Shimla,
reopened on 17th February, 2020, on which date, the Objections
along with the application for condonation of delay, were filed.
4. This application filed for condonation of delay in filing
the objections stood dismissed by the learned District Judge, by
placing reliance upon the judgment of Hon'ble Supreme Court of
India in Assam Urban Water Supply and Sewerage Board versus
M/s Subash Projects and Marketing Limited, (2012) 2 Supreme
Court Cases 624.
5. I have heard learned Counsel for the parties and have
also gone through the documents appended with the appeal,
including the order passed by the learned Court below.
6. It is not in dispute that in the present case, as on the
date when the Court reopened after winter vacations and the
Objections were preferred by the present appellants against the
award passed by the learned Arbitrator, the period of three months
plus the extended period of 30 days, benefit whereof can be given
by the Court, was over. In this view of the matter, this Court is of
the Considered view that there is no infirmity in the order which
stands assailed by way of this appeal because learned Court below
could not have given the benefit of vacations for the purpose of
.
computing the limitation to the present appellants, in terms of the
law laid down by Hon'ble Supreme Court of India in Assam Urban
Water Supply and Sewerage Board (supra). In the said judgment,
Hon'ble Supreme Court of India has been pleased to hold, while
interpreting Section 2(j) and Section 4 of the Limitation Act as
under:-
"12. Section 4 of the 1963 Act reads as under :-
"4. Expiry of prescribed period when court is closed.-
Where the prescribed period for any suit, appeal or
application expires on a day when the court is closed,
the suit, appeal or application may be instituted,
preferred or made on the day when the court reopens.
Explanation.-A court shall be deemed to be closed
on any day within the meaning of this section if during
any part of its normal working hours it remains closed
on that day."
The above Section enables a party to institute a suit,
prefer an appeal or make an application on the day
court reopens where the prescribed period for any suit,
appeal or application expires on the day when the court
is closed.
13. The crucial words in Section 4 of the 1963 Act are
"prescribed period". What is the meaning of these
words?
14. Section 2(j) 'period of limitation' {which} means
the period of limitation prescribed for any suit, appeal or
application by the Schedule, and 'prescribed period'
.
means the period of limitation computed in accordance
with the provisions of this Act;"
Section 2(j) of the 1963 Act when read in the context of
Section 34(3) of the 1996 Act, it becomes amply clear
that the prescribed period for making an application for
setting aside arbitral award is three months. The period
of 30 days mentioned in proviso that follows sub-section
(3) of Section 34 of the 1996 Act is not the 'period of
limitation' and, therefore, not 'prescribed period' for the
purposes of making the application for setting aside the
arbitral award. The period of 30 days beyond three
months which the court may extend on sufficient cause
being shown under the proviso appended to sub-section
(3) of Section 34 of the 1996 Act being not the 'period of
limitation' or, in other words, 'prescribed period', in our
opinion, Section 4 of the 1963 Act is not, at all, attracted
to the facts of the present case."
7. Coming back to the facts of this case, the application
filed for condonation of delay in filing the appeal was dismissed by
learned Court below by assigning the following reasons:-
"7. Section 34 of the Arbitration Act is the only
remedy for challenging the award under Part-I of the
Arbitration Act. Section 34 o(3) of the Arbitration Act
is a limitation provision, which is an inbuilt into the
remedy provision.
8. A plain reading of sub-section (3) along with
proviso to Section 34 of the Arbitration Act shows
.
that application for setting aside the award
mentioned in sub-section (2) of Section 34 of the
Arbitration Act could be made within three months
and the period can be extended for further period of
30 days on showing sufficient grounds and not
thereafter. When any special statute prescribes
certain period of limitation as well as provision for
extension upto specified time limit on sufficient cause
being shown, then the period of limitation prescribed
under special law shall prevail and to that extent the
provision of the Limitation Act shall stand excluded.
When the intention of the legislature by enacting Sub
Section (3) to Section 34 of the Arbitration Act is
explicit that an application for setting aside the
award should be made within three months and the
period can be further extended on sufficient cause by
another period of 30 days and not thereafter, it
implies that the Section 5 of the Limitation Act is not
applicable.
9. In Assam Urban Water Supply and Sewerage
Board supra, the Hon'ble Apex Court has explained
.
Section 4 of the Limitation Act, 1963, which enables
the period of institute any suit, appeal or application
on the day Court reopens where the prescribed
period for any suit, appeal or application expires on
the day when the Court is closed. The Hon'ble Apex
Court has explained the meaning of "prescribed
period" as mentioned in Section 4 of the Limitation
Act, 1963 to say that period of 30 days mentioned in
the proviso that follows in sub-section (3) of Section
34 of the Arbitration Act is not the "period of
limitation", therefore, not "prescribed period" for the
purpose of making the application for setting aside
the arbitral award and accordingly, Section 4 of the
Limitation Act, 1963 is not attracted."
8. This Court is of the considered view that the order so
passed by the learned Appellate Court calls for no interference
especially in view of law laid down by Hon'ble Supreme Court of
India in case referred to supra. The limitation for assailing the
award passed under the Arbitration and Conciliation Act, 1996, is
three months as from the date on which the party filing application
under Section 34 of the Arbitration and Conciliation Act has
received the arbitral award. Extendable period of 30 days referred
.
to in the proviso to Section 34 (3) of the Arbitration and
Conciliation Act is not the period of limitation. Therefore, if a party
has to get the benefit of limitation on account of vacations in a
Court, then, the condition precedent for that is that this period of
"three months" must expire during the vacations. In other words,
it is not the extendable period, which should expire during the
limitation, but the period of three months which should expire
during the period of vacation. In the present case, the period of
three months as from the date when signed copy of the award was
received by the appellant, expired before the learned Court below
closed for winter vacations. This is not in dispute. That being the
case, as the limitation for filing the Objections under Section 34 of
the Arbitration and Conciliation Act, had expired before the Courts
closed for vacations and it is the extendable period, which expired
during the period of vacations, the appellant herein was not
entitled for the benefit of Section 4 of the Limitation Act.
9. In view of findings returned hereinabove, as this Court
does not finds any infirmity with the order impugned, therefore,
the present appeal, being devoid of merit, is dismissed. Pending
miscellaneous application(s), if any, also stands disposed of
accordingly.
.
(Ajay Mohan Goel)
Judge
December 14, 2021
(narender)
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