Research › Search › Judgment

Calcutta High Court · body

2020 DIGILAW 143 (CAL)

State Of West Bengal v. Chakraborty & Company

2020-02-05

MOUSHUMI BHATTACHARYA

body2020
JUDGMENT 1. The Court : The affidavit of the petitioner is filed in Court today and taken on record. The Costs, as directed by the order dated 9t h January, 2020, have been paid within time by the petitioner to the concerned entity. 2. Learned counsel for the respondent objects to the maintainability of the application under Section 34 of The Arbitration and Conciliation Act, 1996 , on the ground that the petition should be dismissed for not having been filed within the timeline mandated under Section 34(3) of the Act. Learned counsel cites Assam Urban Water Supply And Sewerage Board vs. Subash Projects And Marketing Limited reported in (2012) 2 Supreme Court Cases 624 for the proposition that the petitioner cannot make use of the intervening vacation for the timelines under Section 34(3) of the Act. Counsel submits that the three months expired before the puja vacation of the court in 2011 and the additional period of thirty days expired during the puja vacation. The application was only filed after the Court reopened in November 2011. Counsel relies on Section 4 of the Limitation Act 1963 which makes a concession for the time prescribed for filing a suit, appeal or application when the prescribed period expires of a day when the Court is closed with an Explanation that a Court shall be deemed to be closed on any day within this section if, during any part of the normal working hours the Court remains closed on a specific day. Learned counsel further places two orders dated 11t h November, 2011 by which the delay in applying under Section 34 was condoned and an order of 2 nd January, 2019 by which, according to Counsel, the respondent was given liberty to take objection to the maintainability of the petition. 3. Learned counsel for the petitioner relies on the first order dated 11t h November, 2011 wherein the delay in filing the Section 34 was condoned and submits that issue cannot now be reopened. 4. Having heard learned counsel for the parties, the relevant dates involved in this application should be mentioned. The impugned award dated 31s t May, 2011 was received by the respondent on 10t h June, 2011 as stated in paragraph 8.1 of the affidavit-in-opposition of the respondent. The three months prescribed under Section 34(3) expired on 11t h September, 2011. 4. Having heard learned counsel for the parties, the relevant dates involved in this application should be mentioned. The impugned award dated 31s t May, 2011 was received by the respondent on 10t h June, 2011 as stated in paragraph 8.1 of the affidavit-in-opposition of the respondent. The three months prescribed under Section 34(3) expired on 11t h September, 2011. A calendar annexed to the affidavit of the respondent shows that the puja vacation of the Court started from 3r d October, 2011 and continued till 29t h October, 2011. The additional thirty days under the proviso to Section 34(3) of the Act expired on 11t h October, 2011 when the Court was closed for the puja vacation. The arbitration petition under Section 34 was filed on 31 st October, 2011 when the Court reopened after the long vacation. 5. The question is whether the application under Section 34 should be dismissed under Section 34(3) and the proviso thereto on the ground that the petitioner failed to file the said petition under the time lines prescribed under Section 34(3) of the Act. 6. The two considerations which are relevant for deciding the issues are that under the proviso to Section 34(3), a party who seeks to challenge an award is given a window of an additional 30 days provided the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the period of three months. In the facts of the present case, the three months expired on 11t h September, 2011 and the puja vacation of the Court started from 3r d October, 2011. The additional window of thirty days under the proviso was available to the petitioner and the delay was condoned by the Court upon recording the reasons for its satisfaction. 7. Second, the later order dated 2n d January, 2019 passed by another learned Judge which has been relied upon by the petitioner, was passed under Section 34(2) of the Act which deals with the grounds on which an arbitral award may be set aside by a Court. Besides recording that the respondent had taken a strong objection to the maintainability of the application under Section 34, no leave appears to have been granted by the Court to the respondent for reopening the issue of the alleged delay in filing the application after the order of 11t h November, 2011. Besides recording that the respondent had taken a strong objection to the maintainability of the application under Section 34, no leave appears to have been granted by the Court to the respondent for reopening the issue of the alleged delay in filing the application after the order of 11t h November, 2011. From the order it is also evident that Section 34(2) of the Act can only come up for consideration when there is an application for setting aside before a Court which means that the court considered the issue of maintainability to have already been decided in favour of the petitioner. Further, the respondent has also not challenged the order whereby the delay in filing the application was condoned. In Assam Urban Water Supply, the issue before the Supreme Court was whether Section 4 of the Limitation Act dealing with relaxing of the prescribed time line for filing of suits, applications etc during court holidays, should apply to Section 34(3) of the Arbitration Act. The Supreme Court held that Section 4 of the Limitation Act would not apply to the facts of the case since the time prescribed under Section 34(3) was restricted to 3 months and not the further period of 30 days under the proviso to that section. Moreover, no leave was taken by the appellant in that case and consequently there was no order condoning the delay, as in the case before this court. 8. In the present case, after the view of the learned Judge that the marginal delay in filing Section 34 should be condoned which means that this question becomes wholly academic at this stage. 9. Since learned counsel for the respondent submits that there is a further objection as to territorial jurisdiction, let such issue be considered after a fortnight as requested by counsel for the petitioner.