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2021 DIGILAW 108 (TRI)

State of Tripura v. Binode Behari Das

2021-07-26

AKIL KURESHI, S.G.CHATTOPADHYAY

body2021
ORDER Akil Kureshi, CJ. - Heard learned counsel for the parties for final disposal of this Appeal. 2. A short question involved in this Arbitration Appeal is of the correctness of the impugned order passed by the learned District Judge, Unakoti refusing to condone the delay in preferring application under Section 34 of the Arbitration and Conciliation Act, 1996 by the present appellant. 3. Brief facts are as under: The respondent-contractor and the appellant-State of Tripura had certain disputes arising out of their contractual relationship which gave rise to arbitral proceedings. The Arbitrator passed an award on 15.02.2020 awarding various sums to the contractor under different heads such as the cost of earthwork, balance payment for extra items, price escalation etc. The State Government thereupon preferred an application before the District Court under Section 34 of the Act for setting aside the arbitral award. This application was filed on or around 07.09.2020. The Act provides 90 days for filing application under Section 34 and also authorizes the District Court to condone delay beyond such period, up to 30 days thereafter. The application filed by the State Government was delayed by 115 days. The State Government had preferred an application for condonation of such delay. In such application, it was urged that the application under Section 34 of the Act could not be filed within the period of limitation on account of lockdown and official correspondence to the higher authorities, which resulted into un-intentional delay. The applicant, therefore, prayed that delay of 115 days in filing the application may be condoned. 4. This application came to be dismissed by the learned District Judge by the impugned order. In this order, the learned Judge recorded that sub-Section (3) of Section 34 prescribes appeal of 90 days for filing application under Section 34 for setting aside arbitral award and proviso to sub-Section (3) provides that the Court upon being satisfied regarding the sufficient cause being made out, can entertain such application within a further period of 30 days but not thereafter. Since in the present case, there has been a delay of 115 days beyond the period of limitation of 90 days, the same cannot be condoned. 5. In our opinion, the learned District Judge completely ignored the various orders passed by the Supreme Court as well as this Court regarding limitation during covid related lockdown situation. Since in the present case, there has been a delay of 115 days beyond the period of limitation of 90 days, the same cannot be condoned. 5. In our opinion, the learned District Judge completely ignored the various orders passed by the Supreme Court as well as this Court regarding limitation during covid related lockdown situation. It may be noted that in an order dated 23.03.2020, the Supreme Court had provided that on account of lockdown situation there would be general exemption from limitation provisions for all legal proceedings including suit, appeal or application. This order was thereafter discontinued because of general improvement of the corona situation but once again because of rise of the number of infections, the Supreme Court passed a fresh order on 08.03.2021 providing similar exemption from limitation provisions. Similar order was also passed by this Court in public interest petition in order to obviate the inconvenience and the injustice that may be caused to the litigants who on account of various corona related restrictions of movements may not be in a position to file Court proceedings within the period of limitation prescribed under the relevant statute. 6. By virtue of these orders, the period in question had to be discarded for the purpose of computing limitation. The Government in its application for condonation of delay did not properly project this aspect, nor referred to these orders of the Supreme Court or the High Court, nevertheless, the same cannot be ignored. In fact, in view of such orders, there was no question of even condoning the delay for the aforesaid stated period of 115 days. Therefore, keeping the question of the power of the District Court to condone delay beyond 30 days, the application of the State Government under Section 34 of the Act must be entertained on merits. 7. In the result, impugned order dated 23.02.2021 is set aside. The application under Section 34 for setting aside the arbitral award shall be entertained and decided on merits. 8. Appeal disposed of accordingly. Pending application(s), if any, also stands disposed of.