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2008 DIGILAW 1225 (PNJ)

Punjab State Electricity Board v. National Projects Construction Corporation Limited

2008-07-14

RAJIVE BHALLA

body2008
JUDGMENT Rajive Bhalla, J. (Oral):- Prayer in this revision petition is to set aside an order, dated 22.9.2006, passed by the learned Additional District Judge, Bathinda, dismissing the petitioner’s application filed for condonation of delay and the objections, filed under Section 34 of the Arbitration and Conciliation Act, 1996 (for short herein after referred to as “the Act”). 2. The Arbitrator pronounced his award on 13.7.2005. The petitioner received a copy of the award on 14.7.2005. Limitation for filing objections, under Section 34 of the Act, expired on 14.10.2005. The extended period of 30 days for filing objections expired on 13.11.2005. The petitioner filed their objections on 12.11.2005, admittedly, beyond the period of limitation but within the extended period of 30 days, as prescribed under the Act. The objections were accompanied by an application for condonation of delay, though wrongly titled as an application, filed under Section 5 of the Limitation Act. The learned Additional District Judge, Bathinda proceeded to frame issues and directed parties to lead evidence. On the basis of the pleadings and the evidence adduced, the Additional District Judge held that as objections were filed beyond the period of three months and the extended period of 30 days, the Court had no jurisdiction to condone the delay. It was also held that even if it were to be presumed that the objections were filed within the extended period of 30 days, the explanation put-forth by the petitioner did not inspire confidence. 3. Counsel for the petitioner accepts that the objections were filed beyond a period of three months. It is however, asserted that objections were filed within the extended period of 30 days, as prescribed under Section 34 of the Act. The learned Additional District Judge, therefore, committed an error in holding to the contrary. It is contended that a copy of the award, pronounced on 13.7.2005, was received on 14.7.2005. The period of three months expired on 14.10.2005. The extended period of 30 days would, therefore, expire on 14.11.2005. The objections, filed on 12.11.2005, were, therefore, within the extended period of 30 days. It is argued that Section 34 of the Act uses two expressions, namely, “three months” and “30 days”. The learned Additional District Judge, interpreted the words “three months” to mean “90 days” and erred, while calculating the limitation and holding that the objections had been filed beyond the extended period of 30 days. It is argued that Section 34 of the Act uses two expressions, namely, “three months” and “30 days”. The learned Additional District Judge, interpreted the words “three months” to mean “90 days” and erred, while calculating the limitation and holding that the objections had been filed beyond the extended period of 30 days. It is submitted that the word “month” is defined under Section 3(35) of the General Clauses Act to mean a “month” reckoned as per the British calendar. A “month”, therefore, may be of 28, 29, 30 or 31 days, depending upon the month concerned. It is further contended that the learned Court below committed an error by disregarding the letter, granting sanction to file objections, Ex.A4, received on 10.11.2005. The Court below held that as the Additional Superintending Engineer had appended the date 12.10.2005 beneath his signatures, it was apparent that the delay in filing of objections was culpably negligent and not an inadvertent error. The Court below failed to consider that the letter, granting sanction to file objections, was only received on 10.11.2005 and the objections were filed on 12.11.2005. It is, therefore, prayed that the impugned order be set aside, the delay in filing of the objections be condoned, and the learned Additional District Judge, Bathinda be directed to decide the matter on merits. 4. Counsel for the respondent, on the other hand, submits that the period of limitation for filing of objections expired on 11.10.2005. The extended period of 30 days expired on 11.11.2005. The objections, filed on 12.11.2005, were, therefore, beyond the extended period of 30 days. The learned Court below had no jurisdiction to condone delay, and the objections were rightly dismissed as barred by limitation. It is further submitted that the application for condonation of delay is devoid of any particulars and is vague and sketchy. The objections bear the date 12.10.2005. The assertion by the petitioner that this was an inadvertent mistake was rightly rejected by the Additional District Judge. It is submitted that the sanction to file objections is dated 27.10.2005 but the objections were filed 15 days thereafter. It is argued that the inter se, correspondence between departmental officials cannot be a ground to condone the delay. 5. I have heard counsel for the parties and perused the impugned order. 6. It is submitted that the sanction to file objections is dated 27.10.2005 but the objections were filed 15 days thereafter. It is argued that the inter se, correspondence between departmental officials cannot be a ground to condone the delay. 5. I have heard counsel for the parties and perused the impugned order. 6. Section 34 (3) of the Act that prescribes the period of limitation for filing an application for setting aside an arbitral award reads as follows :­ “34. Application for setting aside arbitral award.- (1) xx xx xx (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 applicant 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.” 7. Section 34(3) of the Act, read along with the proviso, provides that a party, that desires to impugn the arbitral award, may file objections within a period of “three months” from the date of the receipt of the award. The proviso provides that the designated Court may entertain objections, beyond the period of three months but not after expiry of the extended period of “30 days”. Section 34 of the Act, therefore, makes it abundantly clear that the designated Court has no jurisdiction to entertain objections or to condone the delay, if the objections are filed after the expiry of the extended period of 30 days. However, if filed during the extended period of 30 days, the designated Court may, depending upon the facts and circumstances of a particular case, condone the delay and hear the objections on merits. 8. Section 34 of the Act uses two expressions, namely, “three months” and “30 days”. The conscious use of the words “months” and “days” is indicative of legislative intent that limitation for filing objections would be counted in “months”, ‘whereas the extended period, during which objections may be filed, would be calculated in “days”. 8. Section 34 of the Act uses two expressions, namely, “three months” and “30 days”. The conscious use of the words “months” and “days” is indicative of legislative intent that limitation for filing objections would be counted in “months”, ‘whereas the extended period, during which objections may be filed, would be calculated in “days”. Section 3(35) of the General Clauses Act defines the word “month” to mean a month reckoned according to the British Calendar. As per the British calendar, a “month” may have 30, 31, 28 or 29 days. The limitation would, therefore, have to be calculated from 14.7.2005, in accordance with the meaning, assigned to word "months". The learned Additional District Judge, however, wrongly construed the words “three months” to mean “90 days”. The limitation for filing of the objections i.e. “three months” expired on 14.10.2005 and as a consequence, the period of “30 days” expired on 13.11.2005. The objections, though filed beyond the period of limitation, were, therefore, filed within the extended period of “30 days”. The learned Additional District Judge should have, therefore, decided the objections on merits, instead of dismissing the application for condonation of delay on the ground of lack of jurisdiction. As held herein above, objections, filed within the extended period of 30 days, cannot be dismissed for want of jurisdiction. 9. The learned Additional District Judge, after holding that he had no jurisdiction to entertain objections, proceeded to consider the merits of the application for condonation of delay and held that even if the objections were filed within the extended period of 30 days, the petitioners had failed to establish sufficient cause for condoning the delay. It appears that while considering the merits of the prayer for condonation of delay, the Additional District Judge failed to peruse the letter, dated 27.10.2005, received by the petitioner on 10.11.2005, granting permission to file objections with due care and caution, and proceeded to hold that the Additional Superintending Engineer had appended the date 12.10.2005 below his signatures, thus, indicating that the objections were ready in October, 2005. A perusal of the letter, dated 27.10.2005, discloses an endorsement that the letter was received on 10.11.2005. It is, therefore, apparent that the date appended beneath the objections, namely, 12.10.2005 was an inadvertent error on the part of the Additional Superintending Engineer. 10. A perusal of the letter, dated 27.10.2005, discloses an endorsement that the letter was received on 10.11.2005. It is, therefore, apparent that the date appended beneath the objections, namely, 12.10.2005 was an inadvertent error on the part of the Additional Superintending Engineer. 10. In view of what has been stated herein above, the revision petition is allowed and the order, dated 22.9.2006, is set aside, subject to payment of Rs.10,000/- as costs. The Additional District Judge, Bathinda shall consider and decide the application for condonation of delay in filing the objections, in accordance with law, within a period of 15 days from the receipt of a certified copy of this order. In case, the delay is condoned, the objections shall be decided within three months thereafter. Parties are directed to appear before the Additional District Judge, Bathinda on 18.8.2008. ----------------