Full Text
JUDGMENT
Through Mr.L. Roshmani, proxy counsel for Mr.R.S.Prabhu, Adv.
Through Mr.Karan Mehra, Adv. with Ms.Chandan Goel, Adv. for R-1.
Mr.U.A. Rana, Adv. with Mr.Ritesh Kumar Chowdhary, Adv. for R-2.
1. This is an application filed by the petitioner for condonation of delay of 409 days in filing the petition under Section 34 of the Arbitration and Conciliation Act, 1996 against the award dated 14th May, 2011.
2. The main petition is filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as „Act‟) challenging the Award dated 14th May, 2011 passed by the Arbitral Tribunal consisting of Hon‟ble Mr. Justice K. Jagannatha Shetty, former Judge, Supreme Court of India (Presiding Arbitrator), Hon‟ble Mr. Justice B.R. Naik, former Judge of 2013:DHC:573 the High Court of Bombay (Arbitrator) and Hon‟ble Mr. Justice P.K. Bahri, former Judge, High Court of Delhi (Arbitrator) in the matter of Hindustan Oil Exploration Co. Ltd. and Mafatlal Industries Ltd. (Claimants therein) and Oil and Natural Gas Commission and Union of India (respondents therein).
3. The above petition has been filed after a delay of 433 days after expiry of the period within which the Award could be challenged under Section 34(3) of the Act. The petitioners have filed I.A. No.20014/2012 (hereinafter referred to as the „said application‟) in the above petition with a prayer for condonation of delay in filing the above petition.
4. There is a prescribed time of limitation provided in Section 34 of the Arbitration and Conciliation Act, 1996 which reads as under:
5. In terms of Section 34(3) of the Act, which has been interpreted by the Supreme Court in Union of India Vs. Popular Construction Co., (2001) 8 SCC 470, the recourse to the Objection Petition under Section 34 can be made only by an application filed within 90 days from the date of receipt of the award and the court on sufficient and adequate reason may condone delay of 30 days thereafter in filing the petition but not thereafter. In Union of India vs. Popular Construction Co.‟s case (supra), the court held as under: “16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award “in accordance with” sub-section (2) and sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, sub-section (3) would not be an application “in accordance with” that sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that “where the time for making an application to set aside the arbitral award under Section 34 has expired … the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court”. This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to “proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow” (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court's powers by the exclusion of the operation of Section 5 of the Limitation Act.” (Emphasis is added)
6. The judgment in Union of India vs. Popular Construction Co.‟s case (supra) has been re-affirmed in subsequent judgments of the Supreme Court in Consolidated Engineering Enterprises vs. Principal Secretary Irrigation Department and Others, (2008) 7 SCC 169 at para 53, Chhattisgarh State Electricity Board Vs. Central Electricity Regulatory Commission, (2010) 5 SCC 23 and Assam Urban Water Supply and Sewerage Board Vs. Subhash Projects and Marketing Limited, (2012) 2 SCC 624.
7. Section 5 of Limitation Act has no application in the present case as Arbitration and Conciliation Act, 1996 is a “special law”, which provides for a period different from that prescribed under the Limitation Act. This position is settled by the judgment of the Supreme Court in State of Himachal Pradesh Vs. Himachal Techno Engineers, (2010) 12 SCC 210 and Union of India Vs. Popular Construction Co., (supra).
8. In view of the above, the delay sought by the petitioner in the present application cannot be condoned. The application is dismissed.
9. In view of the dismissal of I.A.No.20014/2012, the petition to set aside the award has become time barred. The petition is also dismissed. No costs.
JUDGE FEBRUARY 05, 2013