New And Renewable Energy Department v. M/S Andy Solar Private Limited And ANR
Date of Decision: 25.10.2018 New & Renewable Energy Department, Haryana Renewable Energy Development Agency (HAREDA .....Appellant versus m/S Andy Solar Private Limited and another ..Respondents !
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Mr. Naveen Singh Panwar, Advocate, for the appellant.
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&'( By means of this appeal, the appellants have challenged the judgment and order dated 26.07.2018 passed by Additional District Judge3 cum3Presiding Judge, Special Commercial Court, Gurugram, dismissing the application filed by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') for setting aside the arbitral award dated 01.05.2017 passed by the sole arbitrator. 2.
Shorn of unnecessary details, facts relevant for the purpose are that a dispute between the appellant and the respondents arising out of a contract was referred to the sole arbitrator, who made an award dated 01.05.2017. Admittedly, the appellant made an application under Section 34 of the Act before the Special Commercial Court at Gurugram on 02.01.2018, which has been dismissed by the order under appeal. 3.
There is no dispute about the fact that the award was made by the sole arbitrator on 01.05.2017 and the date of institution of proceedings under section 34 of the Act is 02.01.2018. The appellant has not pleaded any
where either before the Court below or before this Court with respect to the date of having received the copy of the award and as such it has to be presumed that he got knowledge of the award on the date it was pronounced i.e. 01.05.2017.
4.
Having noticed the undisputed fact with respect to the date of the award and the date of institution of proceedings under Section 34 of the Act before the Court below, it is clear that the proceedings were initiated not only beyond the prescribed period of limitation of three months but also beyond the extended period prescribed under the proviso. 5.
It may be relevant to extract Section 34(3) of the Arbitration and Conciliation Act, 1996 prescribing for limitation which reads as under:3 "
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The issue that the period prescribed by Section 34(3) of the Act and the extended period under the proviso is not liable to be extended by invoking the provisions of Section 5 of the Limitation Act, 1963 stands settled by the decisions of the Hon'ble Apex Court in
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7.
In view of the aforesaid pronouncements of the Hon'ble Apex Court, the law stands settled that the challenge to an arbitration award under Section 34 of the Act can only be made within three months from the date on which the party receives the award and the said period is liable to be extended by a further period of 30 days on sufficient cause being shown and not thereafter.
8.
Admittedly, in the case in hand, the proceedings under section 34 of the Act were instituted by the appellant on 02.01.2018 which is even beyond the extended period provided under the proviso and thus were clearly barred by limitation.
9.
We are surprised that neither the issue of limitation was raised by the respondents before the Court below nor the Court below took upon itself to consider the matter from the point of limitation. 10.
Since the proceedings initiated by the appellant under Section 34 of the Act were barred by limitation, hence it was not incumbent upon the Court below to test the validity of the award on3merits. The objections filed by the appellant having been dismissed, though for a different reason, but in any case, since in view of the limitation prescribed by Section 34 of the Act, they were liable to be dismissed, hence no exception is taken to the impugned judgment passed by the Court below.
11.
Appeal accordingly fails and stands dismissed.
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