UNION OF INDIA Vs. SHREE DURGA IRON STORES

JUDGEMENT

(1.) THE respondent, a scrap dealer, participated in a public auction held by the Railway. THE respondent was successful. It was supposed to lift the scrap upon deposit of the bid price. According to the respondent, it deposited Rs.1.4 lakhs as and by way of earnest money. He was prepared to pay the balance simultaneously on lifting of the goods. THE Railway, however, was not ready to deliver the goods. It expressed its inability vide letter dated July 11, 1995, appearing at page 88 wherein the concerned officer wrote to the respondent that he was busy in delivery in respect of the other consignment hence, the respondent should contact him after one month. Despite repeated letters, the Railway did not effect delivery that gave rise to a dispute that was ultimately referred to arbitration. THE panelled arbitrator of the Railways being the deputy General Manager, published an award in favour of the respondent. THE Railways challenged the said award before the learned Single Judge being the appropriate civil court, after 108 days of the scheduled date. THE learned Single Judge dismissed the application holding it grossly delayed. Hence, this appeal before us. On perusal of the judgment and order dated March 2, 2011, appearing at pages 272 to 280 of the paper book, we find that His Lordship found the application delayed by 108 days. His Lordship considered section 34(3) of the Arbitration & Conciliation Act, 1996 that would permit an aggrieved party to pray for setting aside of the award within ninety days from the date of publication and/or receipt of the award coupled with a power given to the court to condone the delay in appropriate cases if such delay was within thirty days and not thereafter. Section 34(3) of the 1996 Act is quoted below: Section 34 (3) :

(2.) THE learned Single Judge considered two Apex Court decisions in the case of Union of India vs- Popular Construction Co., reported in All India Reporter 2001 Supreme Court page-4010 as also the decision reported in the case of State of Goa vs- Western Builders, reported in All India Reporter 2006 Supreme Court page-2525. His Lordship also considered two Division Bench decisions of this Court in the case of Rafik alias Rafique Vs. Magma Leasing Limited & Anr. reported in 2010 (1) Calcutta High Court Notes page-143 and in the case of State of West Bengal vs- AFCONS Infrastructure Ltd., reported in All India Reporter 2008 Calcutta page-6. His Lordship held that the phrase "not thereafter " would debar the Court to consider any application beyond 120 (90+30) days. Admittedly, the present case would involve 108 days ' delay that could not be considered by the learned Single Judge. We heard Mr. L.K. Chatterjee, learned senior counsel appearing for the appellants and Mr. Nabi Choudhury, learned counsel appearing for the respondent.

(3.) COMING back to the factual matrix, we find that the plea of fraud was conspicuously absent at all stages. It was nothing but an attempt made at the bar that would not inspire us to extend the scope of the appeal. We fully agree that the dismissal of the appeal would foreclose the opportunity to challenge the award. We are unable to accede to the prayer of the Union of India. In fact we are not sure as to whether the Union of India would actually support the case made out at the bar by its counsel. The appeal fails and is hereby dismissed. There will be no order as to costs. Urgent certified copy of this judgment, if applied for, be given to the parties on their usual undertaking.