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2009 DIGILAW 828 (CAL)

Rafik Alias Rafique v. Magma Leasing Limited

2009-11-20

MD.ABDUL GHANI, SUBHRO KAMAL MUKHERJEE

body2009
Judgment : SUBHRO KAMAL MUKHERJEE, J. (1.) Although, the matter is appearing under the heading application, by consent of the parties, we take up the appeal itself for hearing. (2.) This is an appeal against an order dated July 31, 2009 passed by the learned Chief Judge, City Civil Court at Calcutta in Misc. Case No. 124 of 2008. The learned Chief Judge rejected an application under section 34 of the Arbitration and Conciliation Act, 1996 (the said Act in short) holding, inter alia, that such application could not be entertained as it was barred by limitation under the provision of sub-section (3) of section 34 of the said Act. (3.) The appellant before us filed an application under section 34 of the said Act for setting aside of an award in the City Civil Court, Calcutta. Along with the said application an application under section 5 of the Limitation Act, 1963 was filed seeking for condonation of delay in filing such application. (4.) Section 34(3) of the said Act runs as under : "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." (5.) Therefore, under sub-section (3) of section 34 of the said Act the period of limitation for filing such application is prescribed. The limitation is three months from the date on which the party making the application under section 34 of the said Act had received the arbitral award or, if a request had been made under section 33 of the said Act, from the date on which that request had been disposed of by the Arbitral Tribunal. The limitation is three months from the date on which the party making the application under section 34 of the said Act had received the arbitral award or, if a request had been made under section 33 of the said Act, from the date on which that request had been disposed of by the Arbitral Tribunal. Under the proviso to sub-section (3) of section 34 of the said Act, the Court may entertain an application under section 34 of the said Act within a further period of thirty days provided the Court is satisfied that the applicant is prevented by sufficient cause from making the application within the said period of three months, but not thereafter. (6.) The power of the Court to extend time for filing such application, after the expiry of the period of three months, is thirty days in the maximum. (7.) In view of the use of the expression but not thereafter in the proviso to sub-section (3) of section 34 of the said Act, the statute has placed complete bar precluding the Court from entertaining an application for setting aside the arbitral award made beyond the period of three months and a further period of thirty days. (8.) We agree with the learned Chief Judge that the Court has no power to condone the delay beyond the aforementioned period as the scheme of the said Act excludes the operation of section 5 of the Limitation Act. (9.) Mr. Abhijit Basu, learned Advocate for the appellant, however, submits although the award was passed by the Arbitral Tribunal on November 7, 2006, the copy of the award was made available to his client only on October 20, 2007. Therefore, he submits that the application under section 34 of the said Act for setting aside the arbitral award was well within the period of limitation, but an application under section 5 of the Limitation Act was filed by way of abundant caution. (10.) Mr. Mainak Bose, learned Advocate, appearing for the claimant/respondent, however, submits that the learned arbitrator has informed the claimant that, after pronouncement of the arbitral award, the learned arbitrator forwarded a copy of the award to the appellant by registered post, with acknowledgement due, but the appellant refused to accept it. (11.) At the time of hearing of the appeal, Mr. Mainak Bose, learned Advocate, appearing for the claimant/respondent, however, submits that the learned arbitrator has informed the claimant that, after pronouncement of the arbitral award, the learned arbitrator forwarded a copy of the award to the appellant by registered post, with acknowledgement due, but the appellant refused to accept it. (11.) At the time of hearing of the appeal, Mr. Bose produces the photocopies of the postal receipt and purported endorsement of the postal peon on the reverse of the postal article before this Court. Those documents were, of course, not available before the learned Trial Judge. (12.) When the claimant/respondent asserts that a copy of the arbitral award was forwarded to the appellant and the appellant refused to accept it, it is for the claimant/respondent to prove such allegation as this appellant asserted before the learned Trial Judge that a copy of the arbitral award was made available to him only on October 20, 2007. The general rule in legal proceeding is that he, who asserts a fact has to prove it. The burden of proof is upbn the party, who asserts existence of such fact and not upon the party, who denies it. (13.) We, therefore, set aside the order impugned and remit the matter back to the learned Chief Judge for consideration whether the said application under section 34 of the said Act was filed in time or not. It will be open to the claimant/respondent to produce aforementioned documents to establish that a copy of the award was forwarded by the learned arbitrator to the appellant and this appellant refused to accept such service. If necessary, it will be open to the claimant to take steps for production of those documents from the learned arbitrator. (14.) Liberty is, also, granted, as prayed for, to the claimant/respondent to file supplementary affidavit in support of its written objection to the application under section 34 of the said Act to state that the learned Arbitrator forwarded a copy of the award to the appellant and this appellant refused to accept it. (15.) Let such supplementary affidavit be filed by ten days; reply thereto, if any, by one week thereafter. (16.) The learned Chief Judge is, however, requested to consider the matter afresh within a period of two months from the date of communication of this order to the learned Chief Judge. (15.) Let such supplementary affidavit be filed by ten days; reply thereto, if any, by one week thereafter. (16.) The learned Chief Judge is, however, requested to consider the matter afresh within a period of two months from the date of communication of this order to the learned Chief Judge. While hearing the matter, the learned Chief Judge is authorised not to grant any unnecessary adjournment to either of the parties. (17.) With the aforesaid directions, the appeal stands disposed of. (18.) In view of disposal of the appeal, the connected application filed under C.A.N. 8687 of 2009 becomes infructuous and the same is, also, disposed of. (19.) We make no order as to costs. (20.) Urgent xerox certified copy of this order, if applied for, is to be supplied expeditiously. Appeal and application disposed of.