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2012 DIGILAW 649 (CAL)

UNION OF INDIA v. MAA KALI SUPPLY AGENCY

2012-07-17

ASHOKE KUMAR DASADHIKARI

body2012
Judgment The petitioner being Union of India, represented by the Chief Materials Manager (Sales), Eastern Railway, questioned the arbitral award dated September 25, 2007 passed by Md. Manzar Hossain, Ex- Deputy Chief Engineer (P & D), KPA. On 19th July, 2011 when this application was taken up for hearing the learned Counsel appearing for the petitioners submitted that, although the award was passed on September 12, 2007 and received by his clients on September 25, 2007, it could not be challenged within the prescribed period of three months and there is further delay of 95 days for filing this petition due to some slam in the department. The said petition was decided after hearing the learned counsel appearing for the parties and the following order was passed: “This is an application under section 34 of the Arbitration & Conciliation Act, 1996 filed by the Union of India, represented by the Chief Materials Manager (Sales), Eastern Railway, questioning the arbitral award dated September 25, 2007, passed by Md. Manzar Hossain, Ex-Deputy Chief Engineer(P&D), KPA. Mr. Jayanta Mitra, learned senior counsel appearing for the petitioner submits that the award was passed on September 12, 2007 and received by them on September 25, 2007. However, it was submitted that within the period of three months, the award could not be challenged due to some scam in the department for which they have transferred one officer and suspended two other officers on coming to know about such scam. He submitted that there is a further delay of 95 days for filing this application under section 34 of the said Act. It is beyond 120 days. Sub-section (3) of section 34 of the said Act has clearly prescribed a period of limitation. As per the said section, the award could not be challenged after three months and the application could be filed with an application for condonation of delay for a further period of thirty days and not thereafter In the instant case, the award was passed on September 12, 2007 which was received by the department on September 25, 2007. Therefore, from September 25, 2007, if a calculation is made by adding three months and thirty days, then it can safely be concluded that by January 25, 2008, the award should be challenged with an application for condonation of delay for thirty days. Therefore, from September 25, 2007, if a calculation is made by adding three months and thirty days, then it can safely be concluded that by January 25, 2008, the award should be challenged with an application for condonation of delay for thirty days. But unfortunately, the award was questioned by this application filed on March 19, 2008. In my opinion, there is no scope to entertain this application since this application has been filed beyond 120 days. Furthermore, transfer of one officer and suspension of two others do not prove the scam nor fraud. In view of the above, this application is barred by the laws of limitation under sub-section (3) of section 34 of the Arbitration & Conciliation Act, 1996 and therefore the same is dismissed. There will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.” 2. The petitioners being aggrieved by and dissatisfied with the order passed on 19th July, 2011 preferred an appeal and the Hon’ble Appeal Court allowed the appeal and remanded the matter for fresh hearing. 3. The order of the Hon’ble Appeal Court dated 24th November, 2011 reads as follows : “The Court:-There will be an order in terms of prayer (a) of the Notice of Motion. Dispensing with all the formalities by consent of the parties we dispose of the appeal treating it as on day’s list. This appeal is directed against the order of the learned Trial Judge whereby and whereunder the learned Trial Judge has dismissed the application under Section 34 of the Arbitration and Conciliation Act, 1996 of the appellant. The ground for dismissal was that the application was made beyond the extreme period of time under Section 34 of the said Act itself. The appellant wanted to have exclusion of certain period from the period of limitation on the ground of fraud, presumably under the provisions of Section 17 of the Limitation Act 1963. Going by the Section 17 of the Act, 1963 if the fact of fraud is established which has been perpetrated and for which the appellant was prevented from taking action the period during which the fraud is alleged to have been perpetrated is to be excluded. By filing supplementary affidavit with the leave of the Court such plea was taken specifically which we have noted. By filing supplementary affidavit with the leave of the Court such plea was taken specifically which we have noted. This affidavit has not been controverted by filing a counter affidavit by the respondent before us. Taking face value of the statements and averments it cannot be said that there has been no fraud at all. Until and unless the same is dealt with properly this plea cannot be brushed aside instantly. There was no denial of this plea. If there is a denial question of non-traverse arise, but the learned Judge did not think of this aspect of the matter. Without looking into this aspect of the matter the learned Trial Judge has dismissed the application. We, therefore, set aside the judgment and order of the learned Trial Judge. We remand the matter for fresh hearing restoring the matter on file. Mr. Chowdhury’s client will file affidavit dealing with the statements and averments made in the supplementary affidavit made in the petition within two weeks from the date of receipt of a copy of this order. Matter may be heard out after completion of filing of affidavit within three months, if not earlier. Accordingly, we request the learned Trial Judge. Since no affidavit has been called for the allegations contained in the petition are not admitted by the respondent.” 4. After the appeal was allowed, the petitioner filed supplementary affidavit disclosing the fact of fraud which has been perpetrated and for which the petitioners were prevented from taking action and prayed for exclusion of time. 5. Mr. Chatterjee, learned Counsel appearing for the petitioners, submitted that there are sufficient evidence before this Court from which it can safely be concluded that fraud was perpetrated in which the officials of the petitioners connived with the award holder, the respondent herein and caused the delay. Mr. Chatterjee submitted that this Court granted leave to the applicant to file a supplementary affidavits dealing mainly with the allegation of fraud and delay and pursuant to such leave granted by this Court, two supplementary affidavits were filed. However, pursuant to leave granted by this Court, two supplementary affidavits were taken back and a new supplementary affidavit was filed which was affirmed by one, Sudhanshu Kumar Gupta on 28th April, 2008. Mr. However, pursuant to leave granted by this Court, two supplementary affidavits were taken back and a new supplementary affidavit was filed which was affirmed by one, Sudhanshu Kumar Gupta on 28th April, 2008. Mr. Chatterjee submitted that the Railway officials and the award holder in collusion had deliberately suppressed the award from being challenged by filing the petition within time. According to Mr. Chatterjee, a scam had occurred in the department of Railways which has resulted several awards from not being challenged within the statutory time fixed. Several steps have been taken by the Railway Authorities after detection of the scam following filing of the instant setting aside application. In the process of searching out the necessary persons who have connived with the award holder, two officers viz. Sri Jairam Singh, the then Chief Materials Manager/Sales and Sri D.N. Prasad, the then Senior Materials Manager/Sales have been suspended by the Railway administration for their alleged involvement in the scam. Prior to the issuance of the suspension order, Sri D.N. Prasad was transferred from Senior Materials Manager/Sales Section to Senior Materials Manager/Dock/HQ/FP under office order no.GIV/08/2008 dated 8th April, 2008. Names of other higher officials have also been investigated as to the alleged links with the award holder. According to Mr. Chatterjee, the period of limitation should be condoned since the Railway officials concealed the award from being challenged in time. He submitted that delay of 67 days in filing the application be condoned on the grounds stated in the supplementary affidavit. He further submitted that fraud was discovered only after filing of the instant application. He also submitted that the applicant cannot be made to suffer for the fraudulent concealment of the award. Ultimately, Mr. Chatterjee submitted that the entire period from the date of receipt of the award i.e. 17th September, 2007 (in the office of the General Manager, Eastern Railway) till 11th March, 2008 when the Chief Materials Manager, the competent authority and the party in the award representing the Union of India, finally considered and directed to challenge the award be excluded under Section 17 of the Limitation Act, 1963. 6. Mr. Chatterjee, in support of his contention, cited some Supreme Court decisions. The first case cited by Mr. Chatterjee reported in (2001) 8 SCC 470 (Union of India vs. Popular Construction Co.). Mr. 6. Mr. Chatterjee, in support of his contention, cited some Supreme Court decisions. The first case cited by Mr. Chatterjee reported in (2001) 8 SCC 470 (Union of India vs. Popular Construction Co.). Mr. Chatterjee submitted that in that case, applicability of Section 5 of the Limitation Act was under consideration and the Hon’ble Apex Court, after consideration of the relevant provisions of Arbitration & Conciliation Act, 1996 and the provisions of Limitation Act under Sections 4 to 24 as well as Section 29(2) of the Limitation Act, came to a conclusion that by virtue of sub Section (2) of Section 29 of the Limitation Act what is excluded is the applicability of Section 5 of the Limitation Act and Section 3 read with the schedule which prescribes the period for moving the application. 7. Mr. Chatterjee also submitted that in the other judgment reported in (2012) 2 SCC 624 (Assam Urban Water Supply & Sewerage Board vs. Subash Projects & Marketing Ltd.), the Hon’ble Supreme Court also came to the conclusion following the first judgment of Popular Construction Co. (Supra) that under Sections 2(j) and 4 “Prescribed Period” of limitation is the period of limitation prescribed under the statute. It does not include the period extendable by Court in exercise of different discretion which provide to extend the period of limitation. In that case also the Hon’ble Apex Court is of the clear view that the benefit of Section 4 of Limitation Act is not at all applicable to arbitration matters covered under 1996 Act. 8. The other judgment cited by Mr. Chatterjee is reported in (2006) 6 SCC 239 (State of Goa vs. Western Builders). Mr. Chatterjee submitted that the Hon’ble Apex Court, in this case, considered the applicability of Section 14 of the Limitation Act and after careful consideration of Popular Construction Company’s case (Supra) have concluded that there is no provision in the whole of the Act of 1996 which prohibits discretion of Court. Under Section 14 of the Limitation Act, if the party has been bona fidely prosecuting his remedy before the Court which has no jurisdiction whether this period spent in that proceedings shall be excluded or not. Under Section 14 of the Limitation Act, if the party has been bona fidely prosecuting his remedy before the Court which has no jurisdiction whether this period spent in that proceedings shall be excluded or not. In that judgment it was held that since there is no provision provided under Section 34 of the Arbitration & Conciliation Act, 1996, there is no reason why Section 14 of the Limitation Act not be read in the act itself, which was advanced as the cause of justice. It was held that if the statute is silent and there is no specific prohibition, then the statute should be interpreted which advances the cause of justice. Accordingly, it was held that Section 14 is applicable in case of condoning the delay under sub Section 3 of Section 34 of the Act of 1996. 9. Mr. Chatterjee submitted that this judgment is applicable in the facts and circumstances of this case. It was submitted that due to the departmental scam and fraud committed by the departmental officials in collusion with the award holder, his client is entitled to get an exemption as prayed for. 10. Mr. Chatterjee also cited another decision reported in (2008) 13 SCC 539 (Gulbarga University vs. Mallikarjun S. Kodagali & Anr.) and submitted that the Hon’ble Supreme Court once again in this case upheld the applicability of Section 14 of the Limitation Act in Section 34 proceeding for allowing exclusion of time for proceeding pursued bona fide in Court which did not have jurisdiction. He also submitted that the ratio of the aforementioned two judgements support applicability of Section 17 of the Limitation Act specially when the officials of the applicants colluded with the award-holder to keep the award suppressed without being challenged within the period of limitation. Accordingly time spent for such scam should be exempted. He submitted, although in various paragraphs of the pleadings submissions made for condonation of delay but it should be exemption as per Section 17 of the Limitation Act. 11. Mr. Chatterjee submitted that this is not the sole case. There are other similar cases wherein this type of fraud was perpetrated by the departmental officials, who are colluded with the award-holder and the concerned department is taking appropriate steps against them. However, Mr. Chatterjee could not say about the progress of the disciplinary proceeding. Mr. 11. Mr. Chatterjee submitted that this is not the sole case. There are other similar cases wherein this type of fraud was perpetrated by the departmental officials, who are colluded with the award-holder and the concerned department is taking appropriate steps against them. However, Mr. Chatterjee could not say about the progress of the disciplinary proceeding. Mr. Chatterjee could not say about the finality as regards the disciplinary proceeding initiated by the respondent authorities. 12. Mr. Chatterjee also wanted to submit that the award was not served on the party as per the Arbitration and Conciliation Act, 1996. He submitted that this Court should consider the meaning of the word ‘party’ used under the Act of 1996 in the context of a State or a Department of Government Organization like Railways, which means departmental head concerned, directly connected with and is in control of the arbitration proceeding and not the GM. According to him, copy of the award has to be received by the departmental head. According to Mr. Chatterjee, it was not served upon the “party”, therefore, they are entitled to get exclusion of time till the “party” is served. Mr. Chatterjee in support of his contention, cited a decision reported in 2005 (4) SCC 239 (Union of India v. Tecco Trichy Engineers & Contractors). Mr. Chatterjee submitted that in large organisations like Railways, “party” as referred to Section 2(h) read with Section 34(3) of the Act has to be construed to be a person directly connected with and involved in the proceedings and who is in control of the proceedings before the arbitrator. According to him, the award was not served on the party as per the requirement of the provisions, therefore, he is entitled to get further exemption in this regard. According to Mr. Chatterjee, the prayer for granting exemption on account of fraud as well as on account of non-service of the award on the party should be allowed in favour of the applicants and the main matter should be heard on merit. 13. Mr. Basu, learned Senior Counsel appearing for the respondent on the other hand submitted that in the main application, it was specifically contended by the applicants that the learned arbitrator after concluding hearing passed and singed the award on 12th September, 2007 and communicated the said award to both the parties. Mr. 13. Mr. Basu, learned Senior Counsel appearing for the respondent on the other hand submitted that in the main application, it was specifically contended by the applicants that the learned arbitrator after concluding hearing passed and singed the award on 12th September, 2007 and communicated the said award to both the parties. Mr. Basu submitted that there was no dispute as regards signing of the award on 12th September, 2007. He also pointed out that as per petitioners own averments the award was served to the parties. Mr. Basu submitted that limitation starts on and from 25th September, 2007 when the petitioners received the award. He also submits that since the date of signing the award on 12th September, 2007 till the date of filing this petition i.e. on 13th March, 2008 six months have passed and the period limitation as prescribed under the statute is three months from the date of the receipt of the award and a further period of 30 days could be allowed subject to satisfaction of the Court that the petitioners were prevented by sufficient cause for making the application and not thereafter. Mr. Basu also referred to paragraph 31 of the main application and he submitted that as per their own statements, immediately on receipt of the award, the applicants decided to file setting aside application challenging the award dated 12th September, 2007 and contacted their Advocate to draw setting aside application and to file the same within the period of limitation. The averments made in paragraph 31 of the Section 34 application read as follows: “31. Your petitioners state that the impugned award was received by your petitioners and your petitioners decided to file setting aside application challenging the said award dated 12.09.2007 and contacted their Advocate to draw the setting aside application and to file the same within the statutory period of limitation. Your petitioners received a copy of Advocate’s letter dated 07.01.2008 duly intimating your petitioner that a copy from petition along with notice of motion challenging the award dated 12.09.2007 was filed by the Respondent before the Hon’ble Court for setting aside the impugned award. Your petitioner decided to contest the above application by filing their Affidavit-in-Opposition and decided to oppose the said application. Your petitioner decided to contest the above application by filing their Affidavit-in-Opposition and decided to oppose the said application. It was further decided that the award on the fact of it is illegal should be accordingly highlighted before the Hon’ble Court at the time of hearing of the above application filed by the Respondent. However, all on a sudden the Respondents through their Advocate decided to withdraw the Section 34 application which was dismissed for non-prosecution on 31.01.2008. The order dated 31.01.2008 was accordingly communicated to your petitioner by the Learned Advocate for the respondents by their letter dated 19.02.2008. The letter dated 19.02.2008 was received by your petitioners on 20.02.2008. Your petitioners state that the period of limitation starts from 20.02.2008 as your petitioners did not file the instant application before as the same could not be filed earlier because the Section 34 application of the Respondent was already filed by the Respondent and was pending before the Hon’ble Court till 31.01.2008. Your petitioners state that filing of the instant application before 31.01.2008 challenging the same Award dated 12.09.2007 would have been multiplicity of the judicial proceedings and would have been an abuse of the process of law. Your petitioner prays for condonation of delay in filing this instant application, if at all the same is unintentional and not deliberate.” 14. He submitted that petitioners waited till the dismissal of the application of the award holder deliberately and they did not challenge the award within time although right to challenge the award is independent. Therefore, it is not at all a case of fraud or suppression of the award but it is deliberate negligence on the part of the petitioner. 15. Mr. Basu submitted that words ”not thereafter” carry a greater significance for interpretation of sub-Section (3) of Section 34 which was considered and decided by the Hon’ble Supreme Court in the case of Popular Construction Company (supra). Mr. Basu also submitted that the Hon’ble Supreme Court in that judgment have clearly held that it is not essential for the special or local law to, in terms, exclude the provisions of the Limitation Act. It is sufficient if on a consideration of the language of its provision relating to limitation, the intention to exclude can be necessarily implied. Mr. Basu also submitted that the Hon’ble Supreme Court in that judgment have clearly held that it is not essential for the special or local law to, in terms, exclude the provisions of the Limitation Act. It is sufficient if on a consideration of the language of its provision relating to limitation, the intention to exclude can be necessarily implied. He submitted that the Hon’ble Apex Court have held in this case that as far as the language of Section 34 of the 1996 Act is concerned, the crucial words are “but not thereafter” used in the proviso to sub-Section (3). In the opinion of the Supreme Court, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar of the application of Section 5 of the Limitation 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 proviso, would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result. According to Mr. Basu, there is no scope for extending the period thererby applying provisions of Section 17 in view of this judgment. He further submits that merely because there is no express exclusion in terms of Section 29(2) of the Limitation Act, it cannot be presumed that the provisions of Limitation Act are applicable. 16. Mr. Basu then pointed out that the averments made in paragraph 3(b) of the supplementary affidavit affirmed by one Sudhanshu Kumar Gupta, the Deputy Chief Materials Manager/Construction of the applicant contained that the award was received by the department from of the office of the General Manager, Law on 25th September 2007 and the Chief Materials Manager/B1 marked the same to Deputy Chief Materials Manager/Sales on 27th September 2007 advising urgent action. But Deputy Chief Materials Manager/Sales marked the same to Senior Materials Manager/Sales on 3rd October 2007. The said Senior Materials Manager/Sales acknowledged receipt of the same on 29th October 2007 and advised the concerned dealer, Assistant Materials Manager to process with the matter. Mr. Basu submitted as soon as the award was served on the applicants, the entire organ of the organization came to know about it. The said Senior Materials Manager/Sales acknowledged receipt of the same on 29th October 2007 and advised the concerned dealer, Assistant Materials Manager to process with the matter. Mr. Basu submitted as soon as the award was served on the applicants, the entire organ of the organization came to know about it. The officials having knowledge of the award decided to challenge the award and, therefore, there is no question of suppression of the award by commission of fraud. 17. Mr. Basu reiterated the averments made in paragraph 31 of the main application wherefrom it appears that on receipt of the award the department people have decided to question the award by filing an application under Section 34 of the 1996 Act. He also submitted that it is not only Deputy Chief Materials Manager or the Senior Materials Manager alone but all departmental officials, who are dealing with it or who are concerned with it, are aware of the award passed by the learned Arbitrator on 12th September 2007. Therefore, to get an exemption of the delayed period the authorities shifted the burden only on the two officials of the department which is totally unjustified and illegal. Mr. Basu submitted that the words are very bold and strong enough to say “scam and fraud” but then it requires high standard of proof to substantiate the same. He submitted that except some averments in the said paragraph that the departmental officials in collusion of the award-holder have suppressed the award and prevented the award to be challenged within specified time or within the period of limitation, there is nothing in the supplementary affidavit or in the main application or in the reply even showing particulars and/or proof of involvement of the award-holder or any of its agents. He submitted that mere user of these words cannot be a ground for exemption of the time for challenging the award under Section 34. It was submitted that no details and/or no particulars are disclosed even after the Appeal Court remanded back the matter and this Court allowed the applicants to withdraw two supplementary affidavits and to file afresh. Mr. He submitted that mere user of these words cannot be a ground for exemption of the time for challenging the award under Section 34. It was submitted that no details and/or no particulars are disclosed even after the Appeal Court remanded back the matter and this Court allowed the applicants to withdraw two supplementary affidavits and to file afresh. Mr. Basu submitted that the two judgments delivered by the Hon’ble Supreme Court, one is Popular Construction Company (supra) and the other one Assam Urban Water Supply (supra) wherein the applicability of Sections 4 to 24 was elaborately considered in the touchstone of law of interpretation and the Hon’ble Supreme Court have come to a definite conclusion that the application of those provisions under Sections 4 to 24 of the Limitation Act excluded by implication. He submitted that in the other judgments, one is Gulbarga University (supra) and other is Tecco Trichy (supra), the judgment of Popular Construction Co. was not properly considered. According to Mr. Basu even otherwise also the two judgments wherein Supreme Court have allowed applicability of Section 14 of the Limitation Act are not applicable in the present case since those are cases where the applicants bona fide spent sometime before a wrong forum on wrong advice. 18. Mr. Basu submitted that in this case a very strong allegation was made although without substance and on a plain reading of the pleadings starting from the main petition, supplementary affidavit and reply, it does not appear that there is any details as regards the particulars of involvement of the award-holder, a sole proprietorship firm i.e. “Maa Kali Supply Agency” or any of its agent. He submitted that in such type of cases the person should be pleaded by his name showing his actual involvement and participation and/or collusion. But no particulars are available nor even the name of the proprietor or any of the agents were ever mentioned in the pleadings. It was submitted that the allegations are all vague and there is nothing on record to show any involvement of the proprietor of the award-holder or any of their agents, rather it would appear from the pleadings that two officials are responsible for non-filing the application within the period of limitation. Mr. It was submitted that the allegations are all vague and there is nothing on record to show any involvement of the proprietor of the award-holder or any of their agents, rather it would appear from the pleadings that two officials are responsible for non-filing the application within the period of limitation. Mr. Basu submitted even for the sake of argument it is assumed that the provisions under Section 17 is applicable in this case also, nothing is traceable in the pleadings that the award-holder or its agents are involved or a party in the alleged conspiracy or scam as alleged by the applicants. Mr. Basu have drawn attention to the relevant provisions of Section 17 of the Limitation Act which reads as follows: “17. Mr. Basu have drawn attention to the relevant provisions of Section 17 of the Limitation Act which reads as follows: “17. Effect of fraud or mistake.-(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act, - (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or application has been fraudulently concealed from him; the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, which reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production; Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which- (i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or (ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or (iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed. (2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the Court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order: Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.” 19. According to Mr. Basu, this plea of fraud, of course, without having any details or particulars or proof of high degree should be rejected by this Hon’ble Court and the application should also be rejected. 20. Mr. Basu cited some judgment in support of his contention that mere taking a plea is not enough but something more is required to be given and/or disclosed in the pleadings which would disclose the particulars and details of perpetuation of fraud and/or involvement of the agent of the award-holder or its proprietor. The first judgment cited by Mr. Basu is reported in AIR 1964 MP 57 (Dwarka Prasad naik vs. Shyama Charan Naik). Paragraph 13 of the said judgment reads as follows: “13. In the application under Order 21, Rule 2 it was alleged that the respondent promised to certify the adjustment and asked the appellant not to attend the hearing of the execution case, that the respondent falsely informed him that adjustment had been certified by the Court and then fraudulently executed the decree and that the appellant came to know of this fraud on 4th November, 1957, when he inspected the record. Perhaps these averments were made to claim extension of limitation under Section 18 of the Limitation Act. It is, however, well established that the section is attracted only where there is an active and designed fraud and it had no application when the other party merely remains silent and does not do any act which is designed to prevent knowledge of the cause of action. In this case, the alleged fraud consisted in asking the appellant not to attend the hearing of the case and then telling him that the adjustment had been certified by the Court. The appellant admitted in the witness-box that he did not move the executing Court because he did not think that the respondent would change his position. (Dwarka Prasad J.D.W. 1, para 8). The appellant admitted in the witness-box that he did not move the executing Court because he did not think that the respondent would change his position. (Dwarka Prasad J.D.W. 1, para 8). There is also no evidence to show that the respondent asked the appellant not to attend the hearing of the execution case or that he subsequently told the appellant that the adjustment had been certified by the Court. In this situation, the benefit of Section 18 of the Limitation Act is not available to the appellant. We may add that this aspect of the case was not pressed before the learned Single Judge and is also not raised in the grounds of this appeal under the Letters Patent.” The other decision cited by Mr. Basu is reported in AIR 1970 AP 440 (Kasturi Lakshmibayamma vs. Sabnivis Venkoba Rao) and he referred to paragraphs 8, 9 and 13 thereof. He submitted that it is accepted principle that the charges of fraud must be clear and specific and should contain detailed particulars. A general allegation is not enough to substantiate the alleged claim of fraud. Paragraph 13 of the judgment reads as follows: “(13) It is no doubt alleged that there were deliberate false representations made by the 1st defendant that the mother left no property. But no particulars are given as to when such representations were made. The allegation is very vague and is not in conformity with the requirements of Rule 6 of Order 7. It is well settled that in order to make out extension of time for the institution of suit on the ground of fraud, it should relate to the active concealment of the right of the plaintiff to institute the action. It is necessary to make out that as a result of the fraudulent design, the plaintiff has been prevented from exercising the right to sue in respect of the particular property, is inadequate to make out that there was any concealment, by fraudulent design, from the plaintiff becoming aware of her right to impeach the alienation in question. It may be that the assertion that there was no property of the mother was made in the sense that after the sales there was no further property of the mother in the hands of the 1st defendant. The averment is highly dubious and equivocal. It may be that the assertion that there was no property of the mother was made in the sense that after the sales there was no further property of the mother in the hands of the 1st defendant. The averment is highly dubious and equivocal. There is nothing to sustain the plea that there were fraudulent representations so as to prevent the plaintiff having knowledge of her right to challenge the alienations in question. It is an accepted principle that charges of fraud must be clear and specific and should contain detailed particulars. A general allegation that there had been a misrepresentation, without specifying the time when it was made, the occasion for the query and the answer, and the precise representation that is said to have been made cannot be of any avail when the provisions of Section 18 of Limitation Act are sought to be invoked. There is nothing to show that there has been a design or a conspiracy to conceal the particulars relating to the sales. Mere silence or a passive attitude on the part of the 1st defendant or that the 1st defendant withheld the information as to the sale, are insufficient because what is required under Section 18 is that the person having a right to institute the suit has been kept from gaining the knowledge of such right.” 21. Mr. Basu cited the Hon’ble Apex Court judgment reported in 2004 (8) SCC 588 (A.C. Ananthaswamy Vs Boraiah) wherein it was held that fraud is to be pleaded and proved. The level of proof required in such cases is extremely higher. An ambiguous statement cannot per se make the representator guilty of fraud. According to Mr. Basu, nothing is on record to prove the alleged claim of fraud. Therefore, in view of his aforementioned submissions, the application must fail on all counts. 22. In reply, Mr. Chatterjee, learned counsel representing the applicants made a prayer for amending the pleading of the affidavits used before this Court and the Section 34 application. Mr. Chatterjee submitted that his client should be allowed to amend the pleadings and disclose further details to show that actually fraud was committed and collusion took place. 23. Heard learned counsel appearing for the parties. 24. Mr. Chatterjee submitted that his client should be allowed to amend the pleadings and disclose further details to show that actually fraud was committed and collusion took place. 23. Heard learned counsel appearing for the parties. 24. Earlier, the matter was heard by this Court and it was decided that the application is beyond the period of limitation prescribed under Subsection (3) of Section 34. The applicants preferred appeal against the earlier order and the Hon’ble Appeal Court observed that the applicants by filing supplementary affidavit with leave of the Court took specific plea of fraud and the affidavit has not been controverted by filing counter affidavit by the respondents and taking face value of the statements and averments, the Appeal Court was of the view that it cannot be said that there has been no fraud at all. It was observed by the Hon’ble Appeal Court that until and unless the same point is dealt with properly, that plea cannot be brushed aside instantly. Therefore, the order was set aside and the matter was remanded for fresh hearing restoring the matter in file. 25. Therefore, the remand is on a very limited point. This Court is to decide on the plea of fraud. After the order of the Appeal Court, the petitioners were allowed to withdraw two supplementary affidavits and leave granted to them to file one supplementary affidavit and leave was also granted to the award holder to file replies and they were also asked to file affidavit by appropriate person which the award holder did and ultimately on completion of affidavits, the matter was taken up for hearing. 26. I have perused the entire pleadings filed by both sides. The supplementary affidavit on which the applicants relied on heavily disclosed some averments that the departmental officials in collusion with and connivance of the award holder suppressed the said award and prevented the authorities to challenge the same by filing the application under Section 34 within the period of limitation. The relevant paragraphs which were referred with emphasis by the learned counsel for the petitioners are paragraph 3, subparagraphs (b), (c), (d) and (e) of the supplementary affidavit which are all denied by the respondents by filing affidavits. The relevant paragraphs which were referred with emphasis by the learned counsel for the petitioners are paragraph 3, subparagraphs (b), (c), (d) and (e) of the supplementary affidavit which are all denied by the respondents by filing affidavits. It also appears from the pleadings that all the officers were aware about the award and they took a decision to question the award but no proper step was taken by any of them within the period of limitation. In the instant case there is nothing to show that there has been a design or a conspiracy to suppress the award or to prevent the applicants to question the award within the period of limitation. It is, however, well established that Section 17 is attracted only when there is an active and designed fraud and it is of no application when the other party merely remains silent. Here in the instant case the alleged plea of collusion and/or perpetuation of fraud and/or involvement of the award holder or its agent is not at all established, rather the respondent authorities were aware about the filing of Section 34 application by the award holder. Even in spite of having knowledge of filing application under Section 34 by the award holder the applicants remained silent. In the main application under Section 34 filed by the applicants they themselves admitted that they have waited for disposal of Section 34 application which was ultimately dismissed for the default and they prayed for condonation of delay on that ground till the date of having knowledge about the dismissal of the Section 34 application filed by the award holder. The applicants were aware about the award and they are also aware about the proceedings initiated by the award holder and according to the applicants they were contesting said application. Thus there is no question of suppression of the award by the award holder. Though the right of challenging the award under Section 34 is an independent right to the parties but the admitted position is that the applicants remained silent for that entire period. Therefore, there is no question of suppressing the award or preventing the applicants to question the award within the period of limitation on the side of the respondents. Though the right of challenging the award under Section 34 is an independent right to the parties but the admitted position is that the applicants remained silent for that entire period. Therefore, there is no question of suppressing the award or preventing the applicants to question the award within the period of limitation on the side of the respondents. In my view filing of an application under Section 34 by the award holder is also reminder to the petitioners that there is an award against the applicants and the award holder have challenged the same before this Hon’ble Court by filing Section 34 application. I do not find any substance in the submissions made on behalf of the applicants alleging collusion, nor I find that an active and designed fraud is committed on the side of the award holder either. In my view the Supreme Court judgment delivered in case of AC Anantha Swamy (Supra) is very relevant and the ratio of that case is applicable here. It is settled that fraud is to be pleaded and proved. In the instant case there is no proof that fraud is perpetrated by the award holder or any of it’s agent. Only some allegations were made against the two officials who were made responsible for not challenging the award in time. Since there is no proof of high degree and no particulars disclosed by the applicants under no circumstances it could be held that the allegations of fraud as alleged is established in any manner. It is pertinent to mention that mere fixing some responsibility on the shoulder of two officials of applicants in no way justify raising an allegation of collusion and perpetration of fraud by the award holder or their agent. 27. By now it is also well settled that using words ‘fraud’, ‘collusion’ and ‘conspiracy’ is not enough unless there are sufficient materials before the Court, to come to a definite conclusion that fraud has been perpetrated by the award holder or its agent. Thus the plea of fraud taken by the applicants fails before this Court and accordingly the applicants are not entitled to get any exemption of any period or condonation of delay on that score. Although in the pleadings the applicants prayed for condonation of delay but it is a case for granting exemption on the ground of fraud. Thus the plea of fraud taken by the applicants fails before this Court and accordingly the applicants are not entitled to get any exemption of any period or condonation of delay on that score. Although in the pleadings the applicants prayed for condonation of delay but it is a case for granting exemption on the ground of fraud. However, Section 5 of the Limitation Act is also not applicable in view of the decision in Popular Construction case (supra). In paragraph 14 of this judgment, the Hon’ble Apex Court, after consideration of the provisions under Sections 4 to 24 of the Limitation Act, Section 34 of the Arbitration and Conciliation Act and Section 29(2) of the Limitation Act, have come to a conclusion that the time limit prescribed under Section 34 to challenge an award is absolute and unextendable by Court under Section 5 of the Limitation Act. Therefore, there is no question of condonation of delay. 28. The other point which was taken by Mr. Chatterjee about the service of the award on the party as per Section 2(h) of the Act of 1996, I find that this plea was never raised before nor was it a plea before this Court in the main application under Section 34 neither it was pleaded in the supplementary affidavit nor was it a case before the appellate court either. Few lines were added in the reply against the affidavit in opposition of the award holder used against the supplementary affidavit. In my view, this plea should not be allowed to be taken at this stage which is purely an afterthought and the award holder is taken to surprise by this averment and further from the averments made in the main application it was admitted that the ‘party’ was served with the award. Moreover the Hon’ble Court remanded the matter on a limited point of perpetration of fraud. Therefore, this contention of Mr. Chatterjee is rejected. So far the plea of amending the main application is concerned, at this stage, the same is also not permissible especially when the matter is fought on the ground of limitation and in case the applicants become successful on limitation point, in that event there may be an occasion to consider the plea of amending the main application. However, at this stage, this Court refuses the prayer for amending the main application by the applicants. 29. However, at this stage, this Court refuses the prayer for amending the main application by the applicants. 29. So far the point of non applicability of Section 17 of the Limitation Act is concerned, Mr. Basu submitted that in view of Popular Construction case, there is no scope to hold that Section 17 of the Limitation Act is applicable in any manner in an application under Section 34. Mr. Basu submitted that the judgment of Popular Construction was not properly considered by the two other Division Benches of the Hon’ble Apex Court when deciding the case of Gulbarga University and Western Builders. However, I am not inclined to decide the same since the matter was remanded on the ground of fraud which was raised by the applicants by filing a supplementary affidavit which was not controverted or denied by filing affidavit by the award holder. In my view, there is no fraud perpetrated either by the award holder or any of its agents and therefore the applicants are not entitled to get any exemption. Accordingly, I am of the firm view that the limitation prescribed under Subsection (3) of Section 34 of the Arbitration Act, 1996 has expired long before and in fact the award was challenged after a period of about six months starting from the date of passing the award on 12th September 2007 till 13th March 2008 when the Section 34 application was filed. 30. In my view, the application is hopelessly barred under Subsection (3) of Section 34 of the Arbitration and Conciliation Act. Therefore, the application is dismissed. There would be no order as to costs. Urgent certified copy of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.