COAL INDIA LIMITED Vs. UJJAL TRANSPORT AGENCY

JUDGEMENT

(1.) Leave granted. Heard.

(2.) Certain disputes having arisen between first respondent and appellants, the first respondent filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 (Act for short) and an arbitrator was appointed. The Arbitrator made an Award dated 6.2.2009. The appellants, being under an impression that the proceedings under Section 34 of the Act for setting aside the Award was in the nature of an appeal against the Award, filed an appeal under Section 34 of the Act before the Guwahati High Court on 6.5.2009 (numbered as Arbitration Appeal No. 10/2009). On receiving the notice in the execution levied in regard to the Award dated 6.2.2009, the appellants realised that the proceedings under Section 34 of the Act was not by way of an appeal before the High Court, but by way of an original application before the District Court. However, as by then the courts were closed for the Puja Holidays between 25.9.2009 and 19.10.2009, the appellants filed the application (A.C. No. 512/2009) under Section 34 of the Act before the District Court, Kamrup, Gauhati, for setting aside the said award, on 19.10.2009 when the courts re-opened. Alongwith the said application appellants filed an application under Section 5 of the Limitation Act, 1963 (instead of filing an application under Section 34(3) of the Act) for condonation of the delay in filing the application under Section 34 of the Act. On 29.10.2009, they filed an application before the High Court for withdrawal of the appeal and the High Court permitted them to withdraw the appeal on 30.10.2009 on the ground that it was not maintainable with an observation that the question of condonation of delay will be considered by the District Court, Kamrup before which the application had to be filed. The appellants took back the application for condonation filed under a wrong provision of law (Section 5 of Limitation Act) and filed an application under Section 34(3) of the Act on 3.11.2009. At the hearing of the said application on 21.12.2009, as the court was of the view that application should have been filed under Section 34(3) of the Act read with Section 14 of Limitation Act, the appellants filed yet another application on 8.1.2010 under Section 34(3) of the Act read with Section 14 of the Limitation Act, 1963 for excluding the time spent bonafide in prosecuting the proceedings before the High Court and withdrew the earlier application for condonation of delay. The District Judge, Kamrup by order dated 26.2.2010, dismissed the application for condonation of delay. The appeal filed by the appellants against the said order refusing to condone the delay was rejected by the High Court by the impugned order dated 7.4.2010. The appellants have challenged the said order of the High Court in this appeal by special leave.

(3.) Section 34(3) of the Act provides that an application for setting aside an award may not be made after three months from the date of receipt of the arbitral award. The proviso thereto enables the court, if satisfied that the applicant was prevented by sufficient cause, to entertain the application within a further period of thirty days but not thereafter. This Court in Consolidated Engineering Enterprises v. The Principal Secretary (Irrigation Department) and Ors., (2008) 7 SCC 169 held that neither Section 34(3) nor any other provision of the Act excludes the application of Section 14 of Limitation Act, 1963 and the provisions of Section 14 of Limitation Act would apply to applications under Section 34 of the Act. This Court held that even where there is jurisdiction for applying Section 14 of Limitation Act, the period of limitation will continue to be three months (subject to extension under the proviso to Sub-section (3) of Section 34 of the Act) but in computing the limitation period of three months for the application under Section 34(1) of the Act, the time during which the applicant was prosecuting the matter bonafide and with due diligence before the wrong court will have to be excluded.