CHINTELS INDIA LTD Vs. BHAYANA BUILDERS PVT. LTD.

JUDGEMENT

(1.) This appeal arises out of a certificate issued under Article 133 read with Article 134A of the Constitution of India by the High Court of Delhi in the impugned judgment dated 04.12.2020. The question raised in this appeal is whether a learned single Judge's order refusing to condone the Appellant's delay in filing an application under section 34 of the Arbitration and Conciliation Act, 1996 ("Arbitration Act, 1996") is an appealable order under section 37(1)(c) of the said Act. After considering, in particular, two judgments of this Court, the High Court held:

(2.) It may be noted that the learned single Judge of the High Court dismissed the application for condonation of delay in an application filed under section 34 of the Arbitration Act, 1996 to set aside an award dated 03.05.2019 vide its judgment dated 04.06.2020, and consequently dismissed the section 34 application itself.

(3.) Shri Rajshekhar Rao, learned Advocate appearing on behalf of the Appellant, has relied strongly upon the judgment of this Court in Essar Constructions v. N.P. Rama Krishna Reddy (2000) 6 SCC 94, which was a judgment delivered under section 39 of the Arbitration Act, 1940. His argument is that since section 39 of the 1940 Act is in pari materia with section 37 of the Arbitration Act, 1996, in that an appeal lies where a single Judge refuses to condone delay, resulting in an order refusing to set aside an arbitral award, the ratio of Essar Constructions (supra) would apply on all fours to the same provision contained in section 37. This being so, he argued that it is clear that refusal to condone delay would result in a refusal to set aside an award, an appeal against such order being maintainable under section 37 of the Arbitration Act, 1996. He also strongly relied upon the judgments of this Court in Chief Engineer of BPDP/REO Ranchi v. Scoot Wilson Kirpatrick India (P.) Ltd. (2006) 13 SCC 622 and Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2011) 8 SCC 333 to buttress his submission that section 39 of the 1940 Act was a pari materia provision to section 37 of the Arbitration Act, 1996. He then relied upon judgments of the Madhya Pradesh, Bisleri International Pvt. Ltd. and Ors. v. Sun Petpack Jabalpur Pvt. Ltd. and Anr. 2009 (4) M.P.L.J. 514. , Bombay, E-Square Leisure Pvt. Ltd., Pune v. K.K. Dani Consultants and Engineers Pvt. Ltd. 2013 (3) Mh.L.J. 24; Jayshri Ginning & Spinning Pvt. Ltd. v. C.A. Galiakotwala & Company Pvt. Ltd. 2016 SCC OnLine Bom 5067. , Karnataka, M/s Crompton Greaves Ltd. v. M/s Annapurna Electronics and Ors. ILR 2015 KAR 4199., Delhi, Harmanprit Singh Sidhu v. Arcadia Shares & Stock Brokers Pvt. Ltd. (2016) 234 DLT 30 and Calcutta, Damodar Valley Corporation v. Sanjay Singh Rathor 2018 SCC OnLine Cal 4014. . High Courts to argue that an order refusing to condone delay stands on a completely different footing from an order which condones delay, as the latter order cannot be said to impart any finality to the proceeding, as, when an order condones delay, it cannot be said that the court has refused to set aside an award as it may ultimately set aside the aforesaid award on the grounds mentioned in section 34(2) of the Arbitration Act, 1996. He further argued that the judgment of the Allahabad High Court in Union of India v. Radha Krishna Seth and Anr., 2005 SCC OnLine All 8400 and that of the Bombay High Court in State of Maharashtra v. Ramdas Construction Co. 2006 (6) Mah. L.J. 678 did not state the law correctly and ought to be overruled by this Court. He argued that where a right of appeal is granted by statute, a dismissal on a preliminary ground is nevertheless a dismissal of the appeal, since it cannot be heard thereafter. He also argued that a right of appeal, once granted, ought not to be limited by statutory interpretation where the words used are capable of a wider construction. In particular, referring to the language of section 37(1)(c) of the Arbitration Act, 1996, he argued that there must be refusal to set aside an arbitral award "under section 34", which includes section 34(3), under which a court may refuse to condone delay in filing an application under section 34. Coming to the two Supreme Court judgments referred to in the impugned judgment, it was his contention that the focus of this Court in BGS SGS Soma JV. v. NHPC Limited (2020) 4 SCC 234, was on a completely different question, namely, as to whether an application to set aside an award under section 34 should be returned to the proper court dependent upon where the seat of arbitration was located. It was only in the course of discussion relatable to this question that this Court approved certain observations made in the decision of the Delhi High Court in Harmanprit Singh Sidhu v. Arcadia Shares and Stock Brokers Pvt. Ltd. 2016 SCC OnLine Del 5383, in which a learned single Judge of the Delhi High Court allowed an application for condonation of delay, a Division Bench then holding that an appeal against such an order was not maintainable under section 37 of the Arbitration Act, 1996. He contended that it is only in this context that paragraph 17 of BGS SGS Soma (supra) approved of the observations made in Harmanprit Singh Sidhu (supra), inasmuch as it cannot be said that the Court has refused to set aside the award under section 34, as it may yet do so if any of the grounds contained in section 34(2) are made out. So far as this Court's order dated 12.04.2017 in State of Maharashtra and Anr. v. M/s Ramdas Construction Co. and Anr. [C.A. Nos. 5247- 5248 of 2007] is concerned, he argued that this Court did not go into the maintainability aspect at all, but ultimately dismissed the Civil Appeals on the ground that the District Judge, Nagpur had held that the period of delay being beyond four months, the court had no jurisdiction to entertain the application for condonation of delay or the application on merits under section 34 of the Arbitration Act, 1996.