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2003 DIGILAW 882 (PNJ)

Union Of India(Uoi) v. Som Dutt Gargi

2003-07-03

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition under Section 135 of the Code of Civil Procedure, 1908 is directed against the order dated 21.4.2003 passed by the District Judge, Gurgaon, dismissing the application of the defendant-petitioner for filing objection petition under Section 34 of the Arbitration and Conciliation Act,1996 (for brevity, the Act) against the award dated 30,3.2002. The sole ground on the basis " which the application has been dismissed is that application has been, filed after a delay of more than four months, it has also been held that delay could not be condoned in view of the provisions of Section 34(3) of the Act. No exception can be taken to the order dated 21.4.2003 passed by the learned District Judge, Gurgaon as Section 34(3) of the Act provides a period of three months for filing an application to set aside the award. However, for sufficient reasons, the application could be entertained within a further period of 30 days but not thereafter. Section 34(3) of the Act reads as under:- "34. Application for setting aside arbitral award. (1) and (2) xxxxxx (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the Court is satisfied that the appellant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter." The aforementioned provision has been interpreted by the Supreme Court in the case of Union of India v. Popular Construction Co., (2001)8 S.C.C. 470. The Supreme Court in Popular Construction Companys case (supra) has opined that the provisions of Section 5 of the Limitation Act, 1963 would not apply to challenge the award as specific provisions has been made by Section 34(3). It has further been held that under Section 36 of the Act after the period for challenging the award has expired then the award has to be enforced like a decree under the Code of Civil Procedure, 1908. It has further been held that under Section 36 of the Act after the period for challenging the award has expired then the award has to be enforced like a decree under the Code of Civil Procedure, 1908. The views of their Lordships read as under:- "As far as the language of Section 34 of 1996 Act is concerned, the crucial words are but not thereafter used in the proviso to Sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore, bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the provision, would render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such a result." "Here the history and scheme of the 1996 Act support the conclusion that the time limit prescribed under Section 34 to challenge an award is absolute and unextendible by Court under Section 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as one of its main objectives the need "to minimise the supervisory role of courts in the arbitral process". This objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms: "5. Extent of judicial intervention.- Notwithstanding anything contained in any other law for the time being in force, in matters governed by this part, no judicial authority intervenes except where so provided in this Part". The "Part" referred to in Section 5 is Part-I of the 1996 Act which deals with domestic arbitrations. Section 34 is contained in Part-I and is therefore subject to the sweep of the prohibition contained in Section 5 of the 1996 Act". 2. In view of the views expressed by the Supreme Court, no room is left for interfering in the view taken by the Ld. Addl. District Judge in his order dated 21.4.2003. There is no provision in the Act for condonation of delay pari materia to Section 5 of the 1963 Act. The revision petition is absolutely without merit and is thus liable to be dismissed. For the reasons mentioned above, this petition fails and the same is dismissed.