UNION OF INDIA Vs. NAVEEN KUMAR

JUDGEMENT

(1.) Being dissatisfied by the order dated 6-7-2010 passed by the 11th Additional District Judge, Bhopal dismissing the application filed by the appellant under section 34 of the Arbitration and Conciliation Act, 1996 (for brevity, it be referred to as "the 1996 Act"), this appeal has been preferred under section 37 of the Act. The respondent was entrusted with the work of construction of 30 bedded hospital at Sagar, Madhya Pradesh vide letter dated 22-9-2003 for an amount of Rs. 2,58,95,958/- which was 5.59% below the estimated cost of Rs. 2,75,35,703/-. An agreement was executed on behalf of the Central Government by the Executive Engineer, CPWD, Division-II, Bhopal and the contractor. The date of completion of the work was specified as 1-4-2005. On account of non-completion of the work within the time the dispute arose. By the application raising various claims a dispute was raised by the contractor before the Chief Engineer as per Clause 25 of the agreement. The Chief Engineer has referred the dispute appointing the Arbitrator for 8 claims. The Arbitrator after receiving the reply and the counter reply passed the award on 15-10-2009. On perusal of the contents of the application filed under section 34 of the Act before the Additional District Judge, Bhopal para 12 in the grounds, it is clear that certified copy of the award was received by the Executive Engineer on 20-10-2009. The objection was filed on 22nd day of February, 2010 i.e. on 125th day. The application under section 5 of the Limitation Act was also filed, but the trial Court rejected the said objection as barred by limitation in view of the proviso to sub-section (3) of section 34 of the Act. It has horn observed that the power of' condonation of the delay on having sufficient cause is available after 90 days upto the extended period of thirty days "but not thereafter" and the application has been filed after 120 days, accordingly dismissed the objection as lime barred by the order impugned.

(2.) Learned counsel appearing on behalf of the appellant contends that as per section 2(h) of the Act party to an arbitration agreement may prefer objection for setting aside the award passed by the Arbitrator within a period of 90 days. Referring CPWD Manual Clause 35 it is contended that the Chief Engineer is the authority to take a decision about the acceptance of the award or its challenge, however party to the agreement is the Chief Engineer and the Executive Engineer who must have received the award because the power to take decision of filing objection is with the Chief Engineer. The Chief Engineer received the arbitral award on 12-11-2009 vide letter of the Superintending Engineer dated 11-11-2009, therefore, the date of receipt ought to be accepted as 12-11-2009 and from the said date the objection filed by the appellant is within the extended period of limitation to which sufficient ground to condone the delay is available in the facts of the present case, therefore, delay in filing of the objection under section 34 of the Act may be condoned and it may be decided on merit. To buttress the aforesaid contention reliance has been placed on a judgment of Hon'ble the Apex Court in the case of Union of India vs. Tecco Trichy Engineers and Contractors, 2005 AIR(SC) 1832. In view of the foregoing it is urged that on condoning the delay in filing objection the order impugned passed by the trial Court may be set aside and the matter may be remitted back to decide the objection on merit.

(3.) Per contra, Shri Akhilesh Jain, learned counsel appearing on behalf of the respondent has strenuously urged that the argument so advanced by the appellant is unsustainable in law. Drawing my attention to the pleadings raised in the application filed under section 34 of the Act it is contended that copy of the arbitration award dated 15-10-2009 was admittedly received on 20-10-2009 by the Executive Engineer, who was a party to the proceeding, but later on to take advantage of the judgment of Hon'ble the Apex Court in the case of Tecco Trichy Engineers and Contractors before this Court by way of amendment the appellant wants to raise factual aspect that the date of receipt of the award by the Chief Engineer would be relevant and from the date of receipt of certified copy of the award by him, the period of limitation ought to be counted. This apparently indicates that the contention as advanced before this Court was not raised before the trial Court and it is based on afterthought. It is contended by him that from the date of receipt of the award by the Executive Engineer the objection has been filed on 125th day. As per sub-section (3) of section 34 of the Act, the period of limitation to file objection is of three months and on expiry of such period if the party is in a position to show that it was prevented by sufficient cause from making such application within the period of thirty days, it may be entertained, but after the said period, the delay if any, cannot be condoned in view of the specific stipulation "but not thereafter" under the provisions of the Act. In the present case the application under section 34 of the Act has been filed after 124 days and including the extended period the power to condone delay is vested with the Court is upto 120 days i.e. four months, therefore, the trial Court not committed any error to reject the application filed by the appellant. In support of his contention reliance has been placed on a judgment of Hon'ble the Apex Court in the case of Union of India vs. M/s. Popular Construction Co., 2001 AIR(SC) 4010. Reliance has further been placed on a judgment of Hon'ble the Apex Court in the case of State of Maharashtra vs. M/s. Hindustan Construction Company Ltd., 2010 AIR(SC) 1299 and also in the case of Assam Urban Water Supply and Sew. Board vs. M/s. Subash Projects and Marketing Ltd., 2012 3 MPLJ 31. In view of the foregoing submissions it is urged that the appeal filed by the appellant may be dismissed.