Full Judgment Text
COMAP 1-23
1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
COMMERCIAL APPEAL NO. 1 /20 23
Nagrik Sahakari Rugnalaya and Research Center Limited,
A Cooperative Society, having its Office at Nagpur Nagrik
Hospital, Opp. Alankar Theater, North Ambazari Road,
Nagpur – 440 010, Through its Administrator Gautam Walde. APP E LLANT
.....VERSUS..…
Arneja Nagrik Hospital Pvt. Ltd., A company incorporated
under the Companies Act, having its Office at 123,
Ramdaspeth, Nagpur – through its Authorized Signatory
Dr.Jaspal Arneja. R ESPONDENT
________________________________________________________________
Shri C.S. Dharmadhikari, counsel for the appellant.
Shri S.S. Dewani, counsel for the respondent.
______________________________________________________________________
CORAM : A. S. CHANDURKAR AND M. W. CHANDWANI , JJ.
DATE : A P R IL 10 , 202 3 .
ORAL JUDGMENT : (PER : A.S. CHANDURKAR, J.)
ADMIT. Heard finally with consent of the learned counsel for
the parties.
2. This appeal preferred under Section 37 of the Arbitration and
Conciliation Act, 1996 (for short, ‘the Act of 1996’) read with Section 13 of
the Commercial Courts Act, 2015 takes exception to the order dated
01.12.2022 passed by the learned District Judge – 9, Nagpur in
Miscellaneous Civil Application No. 545 of 2022. By the said order, the
application preferred by the appellant seeking permission to file proceedings
under Section 34 of the Act of 1996 beyond the period of three months has
been dismissed.
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3. The facts relevant for considering the present appeal are that on
10.11.2021 an award was passed by the learned Arbitrator by which the
appellant was directed to pay an amount of Rupees Four Crores to the
respondent with interest at the rate of 12% per annum alongwith costs of
the arbitration proceedings. The appellant being aggrieved by the said
award filed an application under Section 34 of the Act of 1996 on
30.06.2022. Since the said application was filed beyond the period of three
months as stipulated by Section 34(3) of the Act of 1996, an application
under proviso to Section 34(3) of the Act of 1996 was moved on
05.07.2022. The said application was opposed by the respondent and by the
impugned order, the said application has been rejected. The said order
dated 06.12.2022 is the subject matter of challenge in the present appeal.
4. Shri C.S. Dharmadhikari, learned counsel for the appellant
submitted that the learned Judge misconstrued the provisions of Section 34
of the Act of 1996 inasmuch as Section 34(3) of the Act of 1996 permits an
application to be made for setting aside the award within a period of three
months from the receipt of the arbitral award. Subject to the Court being
satisfied that the applicant was prevented by sufficient cause from making
such application within the period of three months, the Court could
entertain the application within further period of thirty days but not
thereafter. The learned Judge construed the period of three months as
ninety days as a result of which the appellant was held entitled to a lesser
period than what is provided by Section 34(3) of the Act of 1996. In other
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words, the period of three months and further period of thirty days has been
considered to be 120 days which was not in accordance with Section 34(3)
of the Act of 1996. In that regard, the learned counsel referred to the
decisions in State of Himachal Pradesh & Another Versus Himachal Techno
Engineers & Another [(2010) 12 SCC 210] and Sesh Nath Singh & Another
Versus Baidyabati Sheoraphuli Co-operative Bank Limited & Another
[(2021) 7 SCC 313]. It was thus submitted that in terms of the order passed
by the Hon’ble Supreme Court in the matter of extension of limitation due to
the pandemic situation dated 10.01.2022 the period between 05.03.2020 to
28.02.2022 was to be excluded and the period of three months from
01.03.2022 became available. The period of three months therefore would
commence from 01.03.2022 and the same would come to an end on
31.05.2022. An application under Section 34 of the Act of 1996 was filed on
30.06.2022 which was the thirtieth day in terms of the proviso to Section
34(3) of the Act of 1996. Since the appellant had indicated sufficient cause
for not having made the application within the period of three months, the
application having been made within the permissible extended period ought
to have been granted. It was further submitted that merely because the
application seeking permission to file the proceedings was not filed
alongwith the application under Section 34 of the Act of 1996 but was filed
on 05.07.2022, same would not mean that the said application was not
liable to be considered. It was thus submitted that the order passed by the
learned District Judge be set aside and the application under Section 34 of
the Act of 1996 be directed to be entertained on merits.
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5. Shri S.S. Dewani, learned counsel for the respondent opposed
the aforesaid submissions. According to him, the learned District Judge
rightly found that the proceedings under Section 34 of the Act of 1996 had
been filed beyond the permissible period of limitation. There being no
power to entertain an application filed beyond the period of thirty days after
expiry of a period of three months, the proceedings were rightly not
entertained. It was further submitted that even the grounds assigned by the
appellant for seeking extension of the period of thirty days were not
sufficient to indicate that the appellant was prevented by any sufficient cause
from making such application. The vague averments in the application were
not supported by any documentary material and hence even otherwise the
delay was not liable to be condoned. It was then submitted that the
application seeking extension of time was not filed alongwith the
proceedings under Section 34(3) of the Act of 1996 and on that count also
no indulgence could be shown to the appellant. Since there was absence of
any sufficient cause being indicated by the appellant, no interference was
called for with the impugned order. In support of the aforesaid submissions,
the learned counsel for the respondent relied upon the decisions in Assam
Urban Water Supply and Sewerage Board Versus Subash Projects and
Marketing Limited [(2012) 2 SCC 624], Simplex Infrastructure Limited
Versus Union of India [(2019) 2 SCC 455], P. Radha Bai & Others Versus P.
Ashok Kumar & Another [(2019) 13 SCC 445], Government of Maharashtra
(Water Resources Department) Represented by Executive Engineer Versus
Borse Brothers Engineers and Contractors Private Limited [(2021) 6 SCC
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460], Mahindra and Mahindra Financial Services Limited Versus
Maheshbhai Tinabhai Rathod & Others [(2022) 4 SCC 162], Estate Officer,
Haryana Urban Development Authority & Another Versus Gopi Chand
Atreja [(2019) 4 SCC 612], National Highway Authority of India Versus
Avinash Purushottam Supe [Arbitration Appeal No. 105/2020 with
connected appeals], National Highways Authority of India Versus Avinash
Purushottam Supe [Special Leave to Appeal (C)Dy. No.23278/2022] Gopal
Laxman Rajendra Versus The Municipal Corporation of City of Nashik &
Others [Civil Revision Application No.619 of 2018], Union of India Versus
M/s Navayuga Engineering Co. Ltd. & Anr. [O.M.P. (COMM) 97/2017],
SMPL Infra Limited Versus Graphite India Limited [O.M.P. (COMM)
494/2019].
6. We have heard the learned counsel for the parties and we
have perused the documents on record. At the outset it may be noted
that under Section 34(3) of the Act of 1996, an application for setting aside
an award is required to be made within a period of three months from the
date on which the party making such application had received arbitral
award. By the proviso to Section 34(3) of the Act of 1996, on indicating
sufficient cause for being prevented from making such application within a
period of three months, the Court has jurisdiction to entertain such
application within a further period of thirty days but not thereafter.
Thus application under Section 34(3) of the Act of 1996 has to be made
within a period of three months from receiving an arbitral award or within
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a further period of thirty days from the expiry of three months but not
thereafter. Perusal of the impugned order indicates that the learned
District Judge has equated the period of three months with ninety days
and has thereafter found that the application under Section 34 of the Act of
1996 as filed on 30.06.2022 was beyond the period of one hundred and
twenty days. Since Section 34(3) of the Act of 1996 specifically prescribes
the period of three months and not ninety days there would be no basis
to hold that the application under Section 34(3) of the Act of 1996 read
with the proviso has to be filed within one hundred and twenty days. Such
application has to be filed within a period of three months and subject to
indicating sufficient cause for not making such application within a period of
three months but within a period of thirty days the same can be entertained.
A similar issue has been considered by the Hon’ble Supreme Court in
Himachal Techno Engineers & Another (supra) and the distinction between
the period of ‘three months’ and ‘ninety days’ has been highlighted. It has
been held that a month does not refer to a period of thirty days but refers to
actual period of a calendar month. It is thus clear that the limitation would
have to be reckoned by taking into consideration the period of three months
under Section 34(3) of the Act of 1996 and further period of thirty days
under proviso to Section 34(3) of the Act of 1996. The learned District
Judge misdirected himself and on this ground itself the impugned order
passed by the learned District Judge is liable to be set aside. It is accordingly
set aside.
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7. We may note that the learned Judge failed to consider the
application moved by the appellant seeking extension of the time to
challenge the award on the ground that such application had been filed
beyond the permissible period. It has been found that consideration of the
relevant period by the learned Judge was not in accordance with Section
34(3) of the Act of 1996. It is well settled as held in N. Balakrishnan Versus
M. Krishnamurthy [(1998) 7 SCC 123] that if the first Court refuses to
condone the delay and that order is challenged, the superior Court
considering such challenge is free to consider the grounds raised for seeking
condonation of delay/extension of the time. Since the aspect of delay has
not been considered by the learned District Judge, we have considered the
grounds put forth by the appellant in that regard.
8. Undisputedly, the award was passed on 10.11.2021 the
period of thirty days to file an application under Section 34(3) of the Act of
1996 would commence from 01.03.2022 for the reason that the period
between 15.03.2020 to 28.02.2022 stood excluded from consideration
in the light of the order passed by the Hon’ble Supreme Court in
RE: Cognizance for Extension of Limitation [Miscellaneous Application
No.21 of 2022]. The period of three months would thus commence
from 01.03.2022 and the same would expire on 31.05.2022. The
application having been filed on 30.06.2022 the question to be considered
is whether the appellant has made out a sufficient cause for being
prevented from filing such application within said period of three
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months and whether the same was filed within further period of thirty days.
In this regard, the appellant has stated in paragraph 3 of its application
dated 05.07.2022 that since its affairs were being controlled by an
Administrator appointed by the State Government, for filing the proceedings,
prior permission of the State Government was sought. The requisite
permission was obtained telephonically on 25.06.2022 and for that reason
the application could not be filed within the stipulated period. Same ground
is also stated in paragraph 13 of the application filed under Section 34 of the
Act of 1996.
According to the respondent this explanation could not be
treated to be sufficient to extend the period for filing the proceedings under
Section 34(3) of the Act of 1996 as the grounds were in general terms and
were not sufficient to constitute ‘sufficient cause’ for making such
application.
9. When the stand of the appellant is taken into consideration
we find that it has been specifically pleaded that telephonic instructions
were received on 25.06.2022 by the Administrator and after giving
instructions for paying the requisite Court fees, the application under
Section 34(3) of the Act of 1996 came to be filed. We do not find any
reason to disbelieve these statements made on oath notwithstanding the
general denial by the respondent. The reasons furnished indicate
‘sufficient cause’ for not making such application within the period of
three months. Viewed in the backdrop of the order passed by the
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Hon’ble Supreme Court in RE: Cognizance for Extension of Limitation
(supra), we are satisfied that the period to file such application
deserves to be extended within the permissible statutory period. In
Simplex Infrastructure Ltd. (supra) the Hon’ble Supreme Court has held
that administrative difficulties would not be a valid reason to condone
delay above and beyond the statutory period prescribed under Section 34
of the Act of 1996. That is not the position here. The proceedings have
been filed on the thirtieth day as per proviso to Section 34(3) of the Act
of 1996.
10. It was faintly urged by the learned counsel for the
respondent that though the application under Section 34 of the Act of
1996 was filed on 30.06.2022 it was not accompanied by any
application seeking extension of time to file that application. Such
application was filed only on 05.07.2022. Relying upon the decision of
the learned Single Judge of the Delhi High Court in SMPL Infra Ltd. (supra),
it was urged that filing of the application under Section 34 of the Act of
1996 was ‘non-est’ filing. Perusal of the said decision indicates that the
proceedings therein had been filed without a Vakalatnama, a signed
petition and Statement of Truth. It was held that in the light of the
defects therein, the filing of the proceedings itself was non-est. The ratio
of the aforesaid decision cannot be made applicable to the case in hand.
We would rather follow the ratio of the decision of the Hon’ble Supreme
Court in the State of M.P. & Another Versus Pradeep Kumar & Another
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[(2000) 7 SCC 372] wherein it has been observed that the effort of the
Court should not be one of finding means to pull down the shutters
of adjudicatory jurisdiction before a party who seeks justice, on account
of any mistake committed by it, but to see whether it is possible to
entertain its grievance if it is genuine. It is well settled that an
application seeking condonation of delay/extension of time can be filed
subsequent to filing of the main proceeding and the main proceeding
cannot be rejected on the ground that it was not accompanied by any
application for condonation of delay/extension of time. Reference in
this regard can be usefully made to the judgment of the learned Single
Judge (B.R. Gavai, J. as His Lordship then was) in Madhao Somaji Sarode
Versus Jotiba Dhyan Upasak Shikshan Sanstha, Dudhala & Others
[2004(3) Mh.L.J. 1078] wherein it has been held that the main
proceeding cannot be dismissed only on the ground that it is not
accompanied by an application for condonation of delay. The contention
of the respondent therefore cannot be accepted since in our view, filing
of proceedings under Section 34 of the Act of 1996 without the
application being accompanied by a separate application under
Section 34(3) of the Act of 1996 would not render filing of the
application under Section 34 of the Act of 1996 non-est. In any event, even
paragraph 13 of the application under Section 34 of the Act of 1996
contains averments in support of the prayer for extension of the period of
three months by thirty days.
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11. For aforesaid reasons, we are of the view that the proceedings
under Section 34 for setting aside the award dated 10.11.2021 deserves to
be entertained on merits. Accordingly, the following order is passed:-
I. The order dated 01.12.2022 passed by the District Judge-9,
Nagpur in Miscellaneous Civil Application No. 545 of 2022 is
set aside.
II. The application filed by the appellant seeking extension of
time to challenge the award is granted.
III. The proceedings stand restored on the file of learned District
Judge-9, Nagpur who is assigned to hear these proceedings.
IV. The application under Section 34 of the Act of 1996 shall be
decided on its own merits and in accordance with law.
12. The Commercial Appeal is allowed in aforesaid terms and
disposed of with no order as to costs.
(M.W. CHANDWANI, J.) (A.S. CHANDURKAR, J.)
APTE
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1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
COMMERCIAL APPEAL NO. 1 /20 23
Nagrik Sahakari Rugnalaya and Research Center Limited,
A Cooperative Society, having its Office at Nagpur Nagrik
Hospital, Opp. Alankar Theater, North Ambazari Road,
Nagpur – 440 010, Through its Administrator Gautam Walde. APP E LLANT
.....VERSUS..…
Arneja Nagrik Hospital Pvt. Ltd., A company incorporated
under the Companies Act, having its Office at 123,
Ramdaspeth, Nagpur – through its Authorized Signatory
Dr.Jaspal Arneja. R ESPONDENT
________________________________________________________________
Shri C.S. Dharmadhikari, counsel for the appellant.
Shri S.S. Dewani, counsel for the respondent.
______________________________________________________________________
CORAM : A. S. CHANDURKAR AND M. W. CHANDWANI , JJ.
DATE : A P R IL 10 , 202 3 .
ORAL JUDGMENT : (PER : A.S. CHANDURKAR, J.)
ADMIT. Heard finally with consent of the learned counsel for
the parties.
2. This appeal preferred under Section 37 of the Arbitration and
Conciliation Act, 1996 (for short, ‘the Act of 1996’) read with Section 13 of
the Commercial Courts Act, 2015 takes exception to the order dated
01.12.2022 passed by the learned District Judge – 9, Nagpur in
Miscellaneous Civil Application No. 545 of 2022. By the said order, the
application preferred by the appellant seeking permission to file proceedings
under Section 34 of the Act of 1996 beyond the period of three months has
been dismissed.
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3. The facts relevant for considering the present appeal are that on
10.11.2021 an award was passed by the learned Arbitrator by which the
appellant was directed to pay an amount of Rupees Four Crores to the
respondent with interest at the rate of 12% per annum alongwith costs of
the arbitration proceedings. The appellant being aggrieved by the said
award filed an application under Section 34 of the Act of 1996 on
30.06.2022. Since the said application was filed beyond the period of three
months as stipulated by Section 34(3) of the Act of 1996, an application
under proviso to Section 34(3) of the Act of 1996 was moved on
05.07.2022. The said application was opposed by the respondent and by the
impugned order, the said application has been rejected. The said order
dated 06.12.2022 is the subject matter of challenge in the present appeal.
4. Shri C.S. Dharmadhikari, learned counsel for the appellant
submitted that the learned Judge misconstrued the provisions of Section 34
of the Act of 1996 inasmuch as Section 34(3) of the Act of 1996 permits an
application to be made for setting aside the award within a period of three
months from the receipt of the arbitral award. Subject to the Court being
satisfied that the applicant was prevented by sufficient cause from making
such application within the period of three months, the Court could
entertain the application within further period of thirty days but not
thereafter. The learned Judge construed the period of three months as
ninety days as a result of which the appellant was held entitled to a lesser
period than what is provided by Section 34(3) of the Act of 1996. In other
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words, the period of three months and further period of thirty days has been
considered to be 120 days which was not in accordance with Section 34(3)
of the Act of 1996. In that regard, the learned counsel referred to the
decisions in State of Himachal Pradesh & Another Versus Himachal Techno
Engineers & Another [(2010) 12 SCC 210] and Sesh Nath Singh & Another
Versus Baidyabati Sheoraphuli Co-operative Bank Limited & Another
[(2021) 7 SCC 313]. It was thus submitted that in terms of the order passed
by the Hon’ble Supreme Court in the matter of extension of limitation due to
the pandemic situation dated 10.01.2022 the period between 05.03.2020 to
28.02.2022 was to be excluded and the period of three months from
01.03.2022 became available. The period of three months therefore would
commence from 01.03.2022 and the same would come to an end on
31.05.2022. An application under Section 34 of the Act of 1996 was filed on
30.06.2022 which was the thirtieth day in terms of the proviso to Section
34(3) of the Act of 1996. Since the appellant had indicated sufficient cause
for not having made the application within the period of three months, the
application having been made within the permissible extended period ought
to have been granted. It was further submitted that merely because the
application seeking permission to file the proceedings was not filed
alongwith the application under Section 34 of the Act of 1996 but was filed
on 05.07.2022, same would not mean that the said application was not
liable to be considered. It was thus submitted that the order passed by the
learned District Judge be set aside and the application under Section 34 of
the Act of 1996 be directed to be entertained on merits.
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5. Shri S.S. Dewani, learned counsel for the respondent opposed
the aforesaid submissions. According to him, the learned District Judge
rightly found that the proceedings under Section 34 of the Act of 1996 had
been filed beyond the permissible period of limitation. There being no
power to entertain an application filed beyond the period of thirty days after
expiry of a period of three months, the proceedings were rightly not
entertained. It was further submitted that even the grounds assigned by the
appellant for seeking extension of the period of thirty days were not
sufficient to indicate that the appellant was prevented by any sufficient cause
from making such application. The vague averments in the application were
not supported by any documentary material and hence even otherwise the
delay was not liable to be condoned. It was then submitted that the
application seeking extension of time was not filed alongwith the
proceedings under Section 34(3) of the Act of 1996 and on that count also
no indulgence could be shown to the appellant. Since there was absence of
any sufficient cause being indicated by the appellant, no interference was
called for with the impugned order. In support of the aforesaid submissions,
the learned counsel for the respondent relied upon the decisions in Assam
Urban Water Supply and Sewerage Board Versus Subash Projects and
Marketing Limited [(2012) 2 SCC 624], Simplex Infrastructure Limited
Versus Union of India [(2019) 2 SCC 455], P. Radha Bai & Others Versus P.
Ashok Kumar & Another [(2019) 13 SCC 445], Government of Maharashtra
(Water Resources Department) Represented by Executive Engineer Versus
Borse Brothers Engineers and Contractors Private Limited [(2021) 6 SCC
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460], Mahindra and Mahindra Financial Services Limited Versus
Maheshbhai Tinabhai Rathod & Others [(2022) 4 SCC 162], Estate Officer,
Haryana Urban Development Authority & Another Versus Gopi Chand
Atreja [(2019) 4 SCC 612], National Highway Authority of India Versus
Avinash Purushottam Supe [Arbitration Appeal No. 105/2020 with
connected appeals], National Highways Authority of India Versus Avinash
Purushottam Supe [Special Leave to Appeal (C)Dy. No.23278/2022] Gopal
Laxman Rajendra Versus The Municipal Corporation of City of Nashik &
Others [Civil Revision Application No.619 of 2018], Union of India Versus
M/s Navayuga Engineering Co. Ltd. & Anr. [O.M.P. (COMM) 97/2017],
SMPL Infra Limited Versus Graphite India Limited [O.M.P. (COMM)
494/2019].
6. We have heard the learned counsel for the parties and we
have perused the documents on record. At the outset it may be noted
that under Section 34(3) of the Act of 1996, an application for setting aside
an award is required to be made within a period of three months from the
date on which the party making such application had received arbitral
award. By the proviso to Section 34(3) of the Act of 1996, on indicating
sufficient cause for being prevented from making such application within a
period of three months, the Court has jurisdiction to entertain such
application within a further period of thirty days but not thereafter.
Thus application under Section 34(3) of the Act of 1996 has to be made
within a period of three months from receiving an arbitral award or within
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a further period of thirty days from the expiry of three months but not
thereafter. Perusal of the impugned order indicates that the learned
District Judge has equated the period of three months with ninety days
and has thereafter found that the application under Section 34 of the Act of
1996 as filed on 30.06.2022 was beyond the period of one hundred and
twenty days. Since Section 34(3) of the Act of 1996 specifically prescribes
the period of three months and not ninety days there would be no basis
to hold that the application under Section 34(3) of the Act of 1996 read
with the proviso has to be filed within one hundred and twenty days. Such
application has to be filed within a period of three months and subject to
indicating sufficient cause for not making such application within a period of
three months but within a period of thirty days the same can be entertained.
A similar issue has been considered by the Hon’ble Supreme Court in
Himachal Techno Engineers & Another (supra) and the distinction between
the period of ‘three months’ and ‘ninety days’ has been highlighted. It has
been held that a month does not refer to a period of thirty days but refers to
actual period of a calendar month. It is thus clear that the limitation would
have to be reckoned by taking into consideration the period of three months
under Section 34(3) of the Act of 1996 and further period of thirty days
under proviso to Section 34(3) of the Act of 1996. The learned District
Judge misdirected himself and on this ground itself the impugned order
passed by the learned District Judge is liable to be set aside. It is accordingly
set aside.
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7. We may note that the learned Judge failed to consider the
application moved by the appellant seeking extension of the time to
challenge the award on the ground that such application had been filed
beyond the permissible period. It has been found that consideration of the
relevant period by the learned Judge was not in accordance with Section
34(3) of the Act of 1996. It is well settled as held in N. Balakrishnan Versus
M. Krishnamurthy [(1998) 7 SCC 123] that if the first Court refuses to
condone the delay and that order is challenged, the superior Court
considering such challenge is free to consider the grounds raised for seeking
condonation of delay/extension of the time. Since the aspect of delay has
not been considered by the learned District Judge, we have considered the
grounds put forth by the appellant in that regard.
8. Undisputedly, the award was passed on 10.11.2021 the
period of thirty days to file an application under Section 34(3) of the Act of
1996 would commence from 01.03.2022 for the reason that the period
between 15.03.2020 to 28.02.2022 stood excluded from consideration
in the light of the order passed by the Hon’ble Supreme Court in
RE: Cognizance for Extension of Limitation [Miscellaneous Application
No.21 of 2022]. The period of three months would thus commence
from 01.03.2022 and the same would expire on 31.05.2022. The
application having been filed on 30.06.2022 the question to be considered
is whether the appellant has made out a sufficient cause for being
prevented from filing such application within said period of three
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months and whether the same was filed within further period of thirty days.
In this regard, the appellant has stated in paragraph 3 of its application
dated 05.07.2022 that since its affairs were being controlled by an
Administrator appointed by the State Government, for filing the proceedings,
prior permission of the State Government was sought. The requisite
permission was obtained telephonically on 25.06.2022 and for that reason
the application could not be filed within the stipulated period. Same ground
is also stated in paragraph 13 of the application filed under Section 34 of the
Act of 1996.
According to the respondent this explanation could not be
treated to be sufficient to extend the period for filing the proceedings under
Section 34(3) of the Act of 1996 as the grounds were in general terms and
were not sufficient to constitute ‘sufficient cause’ for making such
application.
9. When the stand of the appellant is taken into consideration
we find that it has been specifically pleaded that telephonic instructions
were received on 25.06.2022 by the Administrator and after giving
instructions for paying the requisite Court fees, the application under
Section 34(3) of the Act of 1996 came to be filed. We do not find any
reason to disbelieve these statements made on oath notwithstanding the
general denial by the respondent. The reasons furnished indicate
‘sufficient cause’ for not making such application within the period of
three months. Viewed in the backdrop of the order passed by the
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9 Judgment
Hon’ble Supreme Court in RE: Cognizance for Extension of Limitation
(supra), we are satisfied that the period to file such application
deserves to be extended within the permissible statutory period. In
Simplex Infrastructure Ltd. (supra) the Hon’ble Supreme Court has held
that administrative difficulties would not be a valid reason to condone
delay above and beyond the statutory period prescribed under Section 34
of the Act of 1996. That is not the position here. The proceedings have
been filed on the thirtieth day as per proviso to Section 34(3) of the Act
of 1996.
10. It was faintly urged by the learned counsel for the
respondent that though the application under Section 34 of the Act of
1996 was filed on 30.06.2022 it was not accompanied by any
application seeking extension of time to file that application. Such
application was filed only on 05.07.2022. Relying upon the decision of
the learned Single Judge of the Delhi High Court in SMPL Infra Ltd. (supra),
it was urged that filing of the application under Section 34 of the Act of
1996 was ‘non-est’ filing. Perusal of the said decision indicates that the
proceedings therein had been filed without a Vakalatnama, a signed
petition and Statement of Truth. It was held that in the light of the
defects therein, the filing of the proceedings itself was non-est. The ratio
of the aforesaid decision cannot be made applicable to the case in hand.
We would rather follow the ratio of the decision of the Hon’ble Supreme
Court in the State of M.P. & Another Versus Pradeep Kumar & Another
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10 Judgment
[(2000) 7 SCC 372] wherein it has been observed that the effort of the
Court should not be one of finding means to pull down the shutters
of adjudicatory jurisdiction before a party who seeks justice, on account
of any mistake committed by it, but to see whether it is possible to
entertain its grievance if it is genuine. It is well settled that an
application seeking condonation of delay/extension of time can be filed
subsequent to filing of the main proceeding and the main proceeding
cannot be rejected on the ground that it was not accompanied by any
application for condonation of delay/extension of time. Reference in
this regard can be usefully made to the judgment of the learned Single
Judge (B.R. Gavai, J. as His Lordship then was) in Madhao Somaji Sarode
Versus Jotiba Dhyan Upasak Shikshan Sanstha, Dudhala & Others
[2004(3) Mh.L.J. 1078] wherein it has been held that the main
proceeding cannot be dismissed only on the ground that it is not
accompanied by an application for condonation of delay. The contention
of the respondent therefore cannot be accepted since in our view, filing
of proceedings under Section 34 of the Act of 1996 without the
application being accompanied by a separate application under
Section 34(3) of the Act of 1996 would not render filing of the
application under Section 34 of the Act of 1996 non-est. In any event, even
paragraph 13 of the application under Section 34 of the Act of 1996
contains averments in support of the prayer for extension of the period of
three months by thirty days.
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11 Judgment
11. For aforesaid reasons, we are of the view that the proceedings
under Section 34 for setting aside the award dated 10.11.2021 deserves to
be entertained on merits. Accordingly, the following order is passed:-
I. The order dated 01.12.2022 passed by the District Judge-9,
Nagpur in Miscellaneous Civil Application No. 545 of 2022 is
set aside.
II. The application filed by the appellant seeking extension of
time to challenge the award is granted.
III. The proceedings stand restored on the file of learned District
Judge-9, Nagpur who is assigned to hear these proceedings.
IV. The application under Section 34 of the Act of 1996 shall be
decided on its own merits and in accordance with law.
12. The Commercial Appeal is allowed in aforesaid terms and
disposed of with no order as to costs.
(M.W. CHANDWANI, J.) (A.S. CHANDURKAR, J.)
APTE
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