High Court of Punjab and HaryanaFAO-CARB/39/2018dismissed

M/S Gurgaon Packaging v. M/S Scholastic India Pvt. Ltd And ANR

2018-10-23Mr Justice Jaswant Singh,Mr. Justice Fateh Deep Singh7 pages

Date of Decision: 23.10.2018 M/s Gurgaon Packaging Pvt. Ltd. and another .....Appellants versus M/s Scholastic India Pvt. Ltd.

.....Respondents !"

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Mr. Anuj Kumar Sharma, Advocate, for the appellants. **** % $

&## '() By means of this appeal, the appellants have challenged the judgment and order dated 15.01.2018 passed by Additional District Judge, Gurugram rejecting the application filed by the appellants under section 34 of the Arbitration and Conciliation Act, 1996 (for short 'the Act') for setting aside the arbitral award dated 28.12.2016 passed by the sole arbitrator. 2.

Shorn of unnecessary details, facts relevant for the purpose are that a dispute between the appellants and the respondent arising out of a contract was referred to the sole arbitrator who made an award dated 28.12.2016. Admittedly, both the parties filed objections to the said award under section 34 of the Act which were consolidated and decided by a common judgment impugned in this appeal. This appeal is directed only against the impugned judgment and order rejecting the application for setting aside the arbitratal award filed by the appellants. 3.

This fact is not in dispute that the appellants had filed an application for setting aside the award under section 34 of the Act which was subsequently withdrawn from the Court on 01.04.2017 and subsequently again an application out of which the present proceedings arises was filed on

2 05.04.2017 duly accompanied by an application under section 5 of Limitation Act seeking condonation of delay in making the application. 4.

Learned counsel for the appellants contends that the Court below has committed a manifest error of law in rejecting the application under Section 5 of the Limitation Act and dismissing the application made under Section 34 of the Act as barred by time. It is further submitted that sufficient cause was shown for condoning the delay which had occurred in making the application and the Court below committed an illegality in holding that the delay is not liable to be condoned as application under section 34 of the Act made earlier was withdrawn unconditionally without seeking any permission from the Court for filing it afresh. 5.

We have considered the arguments advanced by learned counsel for the appellants and perused the record. 6.

It may be relevant to quote Section 34(3) of the Arbitration and Conciliation Act, 1996 which reads as under:=

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The issue which arises for our consideration is whether the period prescribed for filing objections under section 34(3) of the Act can further be extended on sufficient cause being shown by invoking the provisions of Section 5 of the Limitation Act.

3 8.

A plain and simple reading of the aforesaid provision makes it clear that the legislature provides limitation of three months from the date a copy of the arbitral award is received by the party of making an application under section 34 of the Act for setting aside the award. The application can be entertained by the Court beyond a further period of 30 days only provided the applicant is able to demonstrate that it was prevented from making the application within the period of three months by sufficient cause. 9.

The issue with respect to applicability of the provisions of Section 5 of the Limitation Act for extending the limitation beyond the period prescribed by Section 34 of the Act is no longer res=integra and came for consideration before the Hon'ble Apex Court in case of

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The issue has been answered by the Hon'ble Apex Court as under:= %&

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The same view stands reiterated by the following observations made by the Hon'ble Apex Court in the case of "

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The issue having been settled by the decisions of the Hon'ble Apex Court in cases of

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!#-'# (supra), the argument advanced by learned counsel for the appellant that provisions of the Limitation Act will be applicable in proceedings under section 34 of the Arbitration and Conciliation Act, 1996 and Court below has committed a manifest error of law in refusing to condone the delay, is rendered without any force and is not liable to be accepted.

12.

Needless to observe that though the application made by the appellants under section 34 of the Act has been dismissed as barred by limitation by the Court below on the ground that there exists no sufficient cause to condone the delay is erroneous inasmuch as the provisions of Section 5 of the Limitation Act are not applicable to the proceedings under section 34 of the Act and thus there was no occasion to consider the genuineness of the explanation submitted for delay and once the application was made even beyond the period which could have been extended under the said proviso, the application for setting aside the award was to be simply dismissed as barred by limitation.

14.

In view of the aforesaid facts and discussion, the appeal stands dismissed.

Whether speaking/reasoned √Yes/No Whether reportable √Yes/No