Madras High Court
Waaree Energies Limited vs Sahasradhara Energy Pvt Ltd on 8 September, 2021
O.S.A.Nos.50, 51 and 54 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.09.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
O.S.A.Nos.50, 51 and 54 of 2021
Waaree Energies Limited,
602, Western Edge, 1, Western Express
Highway, Borivali (E), Mumbai 400 006,
Rep. by its Authorised Signatory, Mr.Sridhar. .. Appellant
in all appeals
Vs
Sahasradhara Energy Pvt Ltd
New No.25, Old No.10, Sri Madhavan
Nair Road, Mahalingapuram,
Nungambakkam, Chennai 600 034. .. Respondent
in all appeals
Appeals filed to set aside the impugned order dated 11.03.2020
passed in A.Nos.9611 and 9610 of 2019 in OP.D.No.65025 of 2019
and OP.D.No.65025 of 2019 on the file of original side of this court.
For the Appellant : Ms.Hema Srinivasan
For the Respondent : Mr.Vinod Kumar
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O.S.A.Nos.50, 51 and 54 of 2021
COMMON JUDGMENT
(Delivered by the Hon'ble Chief Justice)
These appeals are directed against an order of March 11, 2020
by which a belated petition under Section 34 of the Arbitration and
Conciliation Act, 1996 has been thrown out without considering the
merits of the matter.
2. The impugned judgment carries a chart in its second
paragraph indicating the relevant dates. For the present purpose, it
may suffice to notice that a period of three months from the date of
receipt of the arbitral award dated February 14, 2019 ran out on May
14, 2019 and the further thirty-day period elapsed on June 13, 2019.
Thus, a valid petition ought to have been filed by the appellant herein
by May 14, 2019 or, upon leave being obtained in terms of Section
34(3) of the Act, by June 13, 2019. In this case, the petition was
presented with court-fees of Rs.1,000/- when the actual court-fees
payable amounted to Rs.1 lakh. The petition was presented on June 3,
2019, returned by the department for rectification on June 10, 2019
and the deficit court-fees were tendered only on August 6, 2019. It
may also be noticed that the petition was presented immediately after
the Court reopened following the summer vacation. The Master
dismissed the applications for condonation of delay and for acceptance
of the petition, against which an appeal under Rule 12 of Order XIV of
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O.S.A.Nos.50, 51 and 54 of 2021
the Rules on the Original Side of this Court was filed with a further
delay of 12 days. It is the resultant order which has been sought to be
questioned as it has the effect of dismissing the petition for challenging
the award.
3. The arbitration court referred to a Division Bench judgment of
this Court reported at 2003 (3) LW 803 (K.Natarajan vs.
P.K.Rajasekaran) and applied the dictum therein while dealing with the
matter. The Single Bench also referred to an unreported judgment of
March 22, 2018, rendered on O.S.A.No.220 of 2017 (R.Krishnamurthy
vs. R.Venkitapathy). In course of the discussion in the impugned
judgment, there is also a reference to a decision reported at (2019) 2
SCC 455 (Simplex Infrastructure Ltd. vs. Union of India) which was
rendered after the judgment in the R.Krishnamurthy case.
4. After referring to the submission of the appellant herein and
how a similar matter had been dealt with by the Single Bench in the
judgment reported at 2020 (1) TLNJ 526 (Civil) (General Manager vs.
Veeyar Engineers and Contractors), the Court posed a question
whether the presentation of the petition with the nominal court-fees of
Rs.1,000/- instead of the payable quantum of Rs.1 lakh amounted to
proper presentation. On the basis of the previous judgments referred
to hereinabove, the Court concluded at paragraph 14 of the impugned
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O.S.A.Nos.50, 51 and 54 of 2021
judgment that the presentation of the petition on June 3, 2019, “is
clearly not proper presentation and does not arrest limitation period
prescribed under Sub Section (3) of Section 34” of the Act of 1996.
The Court reasoned that the entire exercise had to be properly
completed by June 13, 2019 for the appellant herein to seek
condonation within the additional 30 days after the expiry of three
months from the date of receipt of the award. The re-presentation with
appropriate court-fees in this case was only on August 6, 2019.
5. In the light of the appellant’s conduct and its failure to protect
its interest, the order impugned cannot be flawed. When a right is
conferred and the right is hedged with certain conditions, it is the
entire package that has to be adhered to. It will not do for a party to
avail the right without complying with the condition as the appellant
herein had attempted to do. No amount of explanation could have
rectified the position since condonation of delay is not possible in such
a situation and the only way of a petitioner in such a position is to
indicate the exclusion of any time in terms of the Limitation Act, 1963.
No explanation of any kind was found to have been proffered, at any
rate.
6. When the provision in this case is clear and categorical and it
permits appeals to be filed within a stipulated time and also indicates
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that the time cannot be enlarged by use of the words, “but not
thereafter”, as found at the end of the Proviso to Section 34(3) of the
Act of 1996, the ordinary power of condonation available under Section
5 of the Act of 1963 would not apply.
7. When a statute requires a particular thing to be done within a
particular period and the statute is the entirety of the law in a
specialised area, just as the Act of 1996 is a complete Code by itself as
it is a consolidating and amending act, the recourse to the general
provisions would not be permissible.
8. There is no error in the judgment and order impugned and the
appellant has to be blamed for the casual manner in which the
appellant proceeded with the matter. O.S.A.Nos.50, 51 and 54 of 2021
are dismissed. There will be no order as to costs.
(S.B., CJ.) (P.D.A., J.)
08.09.2021
Index : yes
tar
https://www.mhc.tn.gov.in/judis/
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O.S.A.Nos.50, 51 and 54 of 2021
THE HON'BLE CHIEF JUSTICE
AND
P.D.AUDIKESAVALU, J.
(tar)
O.S.A.Nos.50, 51 and 54 of 2021
08.09.2021
https://www.mhc.tn.gov.in/judis/
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