Punjab-Haryana High Court
State Of Punjab vs Makhan Lal Jindal And Another on 7 September, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO-CARB-29-2022 (O&M)
Date of decision : 07.09.2022
STATE OF PUNJAB
..... APPELLANT
VS
MAKHAN LAL AND ANR.
..... RESPONDENTS
CORAM : HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
HON'BLE MR.JUSTICE ALOK JAIN
Present :- Mr. Vikas Mohan Gupta, Additional Advocate General, Punjab.
***
AUGUSTINE GEORGE MASIH, J. (Oral)
CM-82-FCARB-2022
This is an application for exemption from filing certified/true typed
copies of objection petition filed before Ld. Additional District Judge, Patiala
and award dated 25.08.2018 (Annexure A/1).
Application is allowed as prayed for and filing of certified/true typed
copies of objection petition and award dated 25.08.2018 is dispensed with.
Annexure A/1 is taken on record subject to just all exemption.
CM-83-FCARB-2022 in/and
FAO-CARB-29-2022
Prayer in this application for condonation of delay of 112 in filing the
appeal.
The reason, which has been assigned for delay of 112 days in filing the
appeal, is primarily procedural where from one department to the other, the
file has been shuffling for approval.
The said explanation is not acceptable as the period utilized beyond the
period as has been prescribed under the Limitation Act, has to be explained on
day to day basis which is missing in the present case. Thus, we do not find
1 of 5
FAO-CARB-29-2022 (O&M) -2-
any ground for accepting the present application.
On merits also, the order which is impugned in the present appeal
dated 17.02.2022 allowing the application of respondent No.1 for dismissal of
the objection petition filed under Section 34 of the Arbitration and
Conciliation Act, 1996 by the appellant being barred by limitation, has been
accepted. The plea, which had been taken by the appellant before the trial
Court, was that the limitation of 90 days expired on 24.11.2018. Thirty days
more have been granted in case there is any explanation put forth for the delay
in filing the appeal. These thirty days expired on 24.12.2018. Since the
Courts were closed for the winter break from 22.12.2018 till 01.01.2019, the
objection petition had been filed immediately on opening i.e. 02.01.2019 and
therefore, in the light of the provisions, as contained under Section 34 (3) of
the Arbitration and Conciliation Act, 1996 the objection petition was within
time and it could not be rejected on the ground of being beyond the period of
limitation.
This contention has not been accepted by the trial Court in the light of
judgment of the Hon'ble Supreme Court titled as "Assam Urban Water
Supply and Sewerage Board vs. Subash Projects and Marketing Ltd."
(2012) 2 SCC, 624, where on similar facts, the Hon'ble Supreme Court
referring to the same had, in para 13 and 14 while dealing with Section 4 of
the Limitation Act, held as follows:
"(13) The above Section enables a party to institute a suit, prefer
an appeal or make an application on the day court reopens
2 of 5
FAO-CARB-29-2022 (O&M) -3-
where the prescribed period for any suit, appeal or application
expires on the day when the court is closed. The crucial words in
Section of the 1963 Act are 'prescribed period'. What is the
meaning of these words?
Section 2 (j) of the 1963 Act defines '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.
(14) Seen thus, the applications made by the appellants on
January 2, 2004, for setting aside the arbitral award dated
3 of 5
FAO-CARB-29-2022 (O&M) -4-
August 26, 2003 were liable to be dismissed and have rightly
been dismissed by the District Judge, Kamrup, Guwahati, as time
barred."
The appeal, therefore, cannot survive in the light of the above.
An Argument has been sought to be raised by the learned counsel for
the appellant relying upon the provisions of Section 10 of the General Clauses
Act to contend that the limitation would not expire if the Court is closed on
the date when the prescribed period comes to an end, the limitation would be
deemed to be the date till the date the Court opens. If the case, application is
filed on the date of opening of the Court, the same shall be within limitation.
The said plea also cannot be accepted in the light of the judgment of the
Hon'ble Supreme Court in case titled as "Sagufa Ahmed and Ors. vs. Upper
Assam Polywood Products Private Limited and Ors." (2021) 2 SCC, 317,
wherein it has been held that the period of appeal cannot be extended and the
prescribed period would be the one which is specifically mentioned without
including the extension period, if permissible. In other words, any period
beyond the prescribed period during which the Court/Tribunal has discretion
to allow a person to institute proceedings, cannot be taken as prescribed
period.
In the light of the above two judgments even on merits, the appeal
cannot survive and therefore, the same stands dismissed both on the grounds
of it being barred by limitation and on merits as well.
4 of 5
CM-84-FCARB-2022
In view of the dismissal of the main case, the present application for
stay does not survive and thus, the same stands dismissed.
(AUGUSTINE GEORGE MASIH)
JUDGE
(ALOK JAIN)
JUDGE
07.09.2022
manju
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
5 of 5
