State Of Rajasthan-State vs M/S. Gopalram Gumaniram ...
2021 Latest Caselaw 8216 Raj

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 D.B. Civil Misc. Appeal No. 1242/2020

1.      State Of Rajasthan-State, Through Chief Engineer, Indira
        Gandhi Nahar Pariyojana, Bikaner
2.      Executive Engineer, Kolayat Lift Division, Indira Gandhi
        Nahar Pariyojana, Bikaner
                                                                  ----Appellants
                                    Versus
M/s. Gopalram Gumaniram Chaudhary, Contractor, 265 Durga
Colony, Hanumangarh
                                                                 ----Respondent


For Appellant(s)          :     Mr. Manish Tak.
For Respondent(s)         :     Mr. Pradeep Choudhary.


            HON'BLE MR. JUSTICE SANGEET LODHA
            HON'BLE MR. JUSTICE ARUN BHANSALI
                                 Judgment
PER HON'BLE BHANSALI, J.

25/03/2021

This appeal under Section 37 of the Arbitration and

Conciliation Act, 1996 ('the Act, 1996') read with Section 13 of the

Commercial Courts Act, 2015 ('the Act, 2015') has been filed

against the order dated 21/11/2019 passed by the Commercial

Court, Jodhpur, whereby, the application filed by the appellants

under Section 34 of the Act, 1996 have been dismissed as barred

by limitation.

An award dated 22/2/2018 was passed by the sole Arbitrator,

which was sent by speed post to the parties on 19/9/2018 and it

appears that the same was delivered to the appellant on

26/9/2018. Application under Section 34 of the Act, 1996 was filed

on 11/3/2019.

(2 of 4) [CMA-1242/2020]

The Commercial Court after hearing the parties came to the

conclusion that under the provisions of Section 34 (3) of the Act,

1996, the application could have been filed till 25/12/2018 i.e.

within three months from the date of receipt of the award on

26/9/2018 and the same could be entertained within a further

period of 30 days as provided in proviso to the said provision.

However, as the application was filed even beyond the said period

of 30 days, the same was barred by limitation and consequently

rejected the application.

Office has reported the appeal as barred by limitation.

An application under Section 5 of the Limitation Act has been

filed seeking condonation of delay in filing the appeal.

Learned counsel for the respondent has no objection if the

delay in filing the appeal is condoned.

In view of the submissions made by learned counsel for the

respondent, the delay in filing the appeal is condoned.

Heard on admission.

Learned counsel for the respondent made submissions that

the issue, which arises in the appeal is squarely covered by the

judgment of Hon'ble Supreme Court in Union of India vs. M/s.

Popular Construction Co. : (2001) 8 SCC 470 and M/s. Simplex

Infrastructure Ltd. vs. Union of India : (2019) 2 SCC 455.

It was submitted that admittedly the application under

Section 34 of the Act of 1996 was filed beyond limitation

prescribed in Section 34 (3) of the Act, 1996 including the

extended period under the proviso and, therefore, the Commercial

Court was justified in rejecting the application.

Learned counsel for the appellants attempted to make

submissions that the Commercial Court did not look into the merit

(3 of 4) [CMA-1242/2020]

of the award passed by the Arbitrator, which was ex-facie contrary

to the terms of the agreement, however, he could not point out

any distinguishing feature to indicate that the application filed

under Section 34 of the Act, 1996 was within limitation as

prescribed.

We have considered the submissions made by learned

counsel for the parties and have perused the material available on

record.

The facts are not in dispute that the award was passed by

the arbitrator on 22/2/2018, the same was received by the

appellants on 26/9/2018 and the application under Section 34 of

the Act, 1996 was filed on 11/3/2019 i.e. after 166 days.

The provisions of Section 34 (3) of the Act, 1996, which

provide for limitation for filing application for setting aside of the

award, read as under:

"(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."

In terms of the above provisions, the outer limit for filing the

application is 120 days from the date of receipt of the award and

admittedly, the application has been filed beyond the said period

and, therefore, the same was barred by limitation.

The Hon'ble Supreme Court in the case of Popular

Construction (supra) has laid down that the provisions of Section 5

(4 of 4) [CMA-1242/2020]

of the Limitation Act, in view of the express language of the

provisions of Section 34 of the Act, 1996 are not applicable.

In Simplex Infrastructure Ltd. (supra), the same view was

reiterated.

In view of the above factual and legal position, no case for

interference in the order impugned is made out. Once the

application was found to be barred by limitation, there was no

occasion for the Commercial Court to examine the validity of the

award.

The appeal has no substance and the same is, therefore,

dismissed.

                                   (ARUN BHANSALI),J                                     (SANGEET LODHA),J


                                    9-baweja/-









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