DAMANI CONSTRUCTION COMPANY Vs. STATE OF ARUNACHAL PRADESH

JUDGEMENT

(1.) THIS writ application is directed against the order passed by the Deputy Commissioner, Papum Pare, Arunachal Pradesh condoning the delay in filing the application under Section 34 of the Arbitration Act, 1996 by which the respondents-State has prayed for setting aside an interim arbitral award. According to the petitioner, the application under Section 34 of the Act filed by the respondent-State is beyond the period of limitation and thus could not have been condoned by the Deputy Commissioner by the impugned order.

(2.) SINCE the only question involved in this writ proceeding is whether the application under Section 34 of the Act preferred by the respondent State is barred by limitation or not, it will be expedient to indicate the relevant dates of events leading to the filing of the instant writ petition. 1992-The petitioner entered into a Contract agreement bearing No. DD/03 of 1992-93 with the State of Arunachal Pradesh in the Public Works Department for executing the contractual work of construction of road bridges. The value of the work in question although was initially fixed at Rs. 77. 43 lakhs but on the basis of the post-tender negotiation by and between the parties, the price of the work was refixed at Rs. 1. 15 Crores. The work was to be completed within two calender years from the date of commencing of the work. 10. 4. 1993-The Contractual work in question commenced. March, 1999-Works completed. According to the petitioner, delay in executing the work was due to deviation from the original scope of work and several obstructions and difficulties including delay in approval of the design and drawings and also in making payment against running accounts bills from time to time. The petitioner raised bill for the contractual work which according to the petitioner refused to be paid by the respondents on the basis of the certain absolute arbitral and untenable objection. Such refusal gave rise to dispute capable of being resolved by an arbitral Tribunal. The petitioner approached this Court by filing an application under Section 11 (6) of the Arbitration and Conciliation Act, 1996 which was numbered and registered as ARB No. 21/2000. 18. 10. 2001-Arbitration Case No. 21/ 2000 disposed of appointing Arbitrator to adjudicate the dispute between the parties. 17. 12. 2002-By an order passed in Misc. Case No. 73/2002 arising out of the said Arbitration Case No. 21/2000, earlier Arbitrator was replaced by the present Arbitrator. 12. 10. 2003-The Arbitrator passed an interim award, awarding an amount of Rs. 65,52,878/- together with interest at the rate of 18% per annum to be calculated if the amount awarded was not paid within 60 days from the date of the award. 23. 10. 2003-A copy of the interim order dated 12. 10. 2003 received by the respondents. 22. 1. 2004-According to the petitioner, the period of limitation prescribed under Section 34 (3) of the Arbitration and Conciliation Act, 1996 for filing an application for setting aside the arbitral award got expired. 22. 2. 2004-According to the petitioner, even as per the proviso to Section 34 (3) the extended period of one month expired and the interim award became final as per provision of Section 35 of the Act and became executable as per Section 36 of the Act. 2. 4. 2004-The respondent Nos. 1 and 2 wrote a letter to the Arbitrator for review of the award and also sought for a clarification in respect of the award. 10. 4. 2004-The Arbitrator by his letter clarified the matter and stated that he had no jurisdiction to entertain the request made in the application for review or reconsideration of the arbitral award. 21. 6. 2004-The petitioner filed execution case bearing No. Misc. (J)08/04 before the Court of Deputy Commissioner, Papum Pare, Itanagar for execution of the interim award dated 12. 10. 2003. 6. 8. 2004-The respondent filed an application under Section 34 of the Act for setting aside the interim award dated 12. 10. 2003 together with application under Section 5 of the Limitation Act read with Section 34 (3) of the Act for condonation of delay in filing the application for setting aside the award. 6. 8. 2004-The application was entertained and fixed for hearing on condonation of delay after 15 days. The petitioner being aggrieved by such entertainment of the application preferred a writ petition being W. P. (C) No. 6332/2004. 1. 9. 2004-The writ application disposed of referring to entertain the writ petition at that stage observing that matter being pending before the Court below, it would be highly inappropriate to pass any order which might have the effect of pre-empting the Court below from deciding the question pending before it. The matter left to be decided by the Deputy Commissioner. 15. 9. 2004-The Deputy Commissioner, Papumpare, Itanagar by the impugned order passed in Misc. Application No. 10/2004 in the proceeding before it under Section 34 of the aforesaid Act condoned the delay in preferring the application under Section 34 of the Act.

(3.) IT is the legality and validity of the aforesaid order dated 15. 9. 2004 which is under challenge in this proceeding. According to the petitioner, the Deputy Commissioner could not have condoned the delay in view of the specific provision of Section 34 of the Act as per which under no circumstances the period of limitation prescribed which is three months plus 30 days (altogether four months or 120 days ).