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2018 DIGILAW 1214 (KAR)

Prakash Acharya S/o. Mohana Acharya v. Sairabanu W/o. Late T. M. Thahir

2018-12-17

ALOK ARADHE

body2018
ORDER : Petition is admitted. With the consent of the parties, the same is heard finally. 2. In this petition under Section 115 of Civil Procedure Code, 1908 the petitioner assailed the validity of the order dated 14.06.2018 by which the trial Court has condoned the delay in filing the suit under Section 34 of Arbitration and Conciliation Act, 1996 (hereinafter referred to as `Act’ for brevity). 3. Facts giving rise to filing of this petition briefly stated are: According to the petitioner, the award was passed on 10.03.2014 and a copy of the award received by the respondents on 20.04.2015. The period of 90 days expired on 19.07.2015. It is also the case of the petitioner that period of 120 days expired on 19.08.2015. In view of bar contained in proviso to Section 34(3) of the Act, the Court could not have condoned the delay period beyond 120 days. However, an application under Section 34 of the Act for setting aside the award was preferred on 04.06.2018 and the trial Court in cryptic and cavalier manner has condoned the delay in filing the suit under Section 34 of the Act. In the aforesaid factual background this revision has been filed. 4. Learned counsel for petitioner submitted that the order passed by the trial court is cryptic and suffers from vice of non application of mind. It is also submitted that the order passed by the trial Court is perverse as trial court has no jurisdiction to condone the delay in view of proviso to Section 34(3) of the Act. 5. On the other hand, learned counsel for respondents has submitted that respondents acquired the knowledge about passing of the order on 15.05.2018 when the respondent was served with warrant of attachment in the Execution Petition. Thereafter application was on 04.06.2018 which is well within the limitation. Therefore order passed by the trial Court is prefect, just and legal. 6. I have considered submissions made by the learned counsel for parties and I have perused the records. 7. Thereafter application was on 04.06.2018 which is well within the limitation. Therefore order passed by the trial Court is prefect, just and legal. 6. I have considered submissions made by the learned counsel for parties and I have perused the records. 7. The relevant extract of Section 34(3) of the Act reads 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. Thus, through the scrutiny of Section 34(3) of the Act, it is evident that the limitation under Section 34(3) of the Act runs from the date when a party receives the copy of the award. 8. The Supreme Court in S.N.Mukherjee Vs Union of India reported in (1990) 4 SCC 594 has held that people must have confidence in judicial and quasi judicial authorities. While emphasizing the need for assigning reason it was held that giving of reasons minimizes chance of arbitrariness and hence assigned requirement of rule of law. 9. In (2010) 3 SCC 732 - Secretary and Curator, Victoria Memorial Hall Vs Howrah Ganatantrik Nagrik Samity and others, it has been held that reason is the admission of very conclusion and absence of reasons renders the order indefensible/unsustainable particularly when the order is challenged before a higher forum. It has been further held that recording of reasons is part of principles of natural justice and the same ensures transparency and fairness in decision making. In the backdrop of aforesaid well settled legal proposition, in the instant case the relevant extract of the impugned order is as under: “9. The plaintiffs have filed I.A.No.III under section 5 of the Limitation Act to condone the delay in filing the arbitration suit. In the affidavit, plaintiff No.2 has categorically stated that he was not properly represented before the arbitrator and earlier counsel never informed him about proceedings and disposal of the A.P.No.7/2005. The plaintiffs have filed I.A.No.III under section 5 of the Limitation Act to condone the delay in filing the arbitration suit. In the affidavit, plaintiff No.2 has categorically stated that he was not properly represented before the arbitrator and earlier counsel never informed him about proceedings and disposal of the A.P.No.7/2005. The reason assigned by the plaintiffs is bonafide and the delay in filing the arbitration suit is not intentional one. Hence, I.A.No.III is to be allowed by condoning delay in filing the arbitration suit. Hence, I answer point No.2 in the affirmative.” From perusal of the aforesaid paragraph the trial Court has not adverted as to essential requirement to deal with the prayer for condonation of delay and specifically in dealing with Section 34 of the Act the trial Court has no way recorded a finding that as to when the respondent has received the copy of the award and whether it has the power to condone the delay in view of proviso to Section 34(3) of the Act. The impugned order is cryptic and suffers from vice of non application of mind. Same, therefore cannot be sustained in the eye of law. It is accordingly quashed and set aside. Trial Court after hearing the parties is directed to decide the application seeking condonation of delay in making the application under Section 34 of the Act afresh by a speaking order in the light of the observations made supra within six weeks from the date of this order. Petition is disposed of.