JUDGMENT
M. Karpaga Vinayagam, C.J.
Page 1625
1. In pursuance of the order of remand by the Supreme Court, the matter has come before this Court to consider the main point urged in this appeal.
2. The counsel for the appellant would submit that the order passed by the Sub Judge refusing to set aside the arbitral award was mainly on the ground that the application was filed beyond the period of limitation and since Section 5 of the Limitation Act would confer powers on Sub Judge to condone the delay, the Sub Judge ought to have exercised that power, entertained the application and set aside the order.
3. Arguing contra, learned Counsel appearing for the respondent, on the strength of the decision in the case of State of Goa v. Western Builders , would submit that Section 5 of the Limitation Act would not apply in respect of the application under Section 34 of Arbitration and Conciliation Act (hereinafter called as Act). It is contended by the counsel for the respondent that under Section 34(3) of the Act, an application for setting aside arbitral award shall be filed only within three months from the date of receipt of the arbitral award and if any request has been made under Section 33 of the Act showing sufficient cause, that request can be entertained within a further period of thirty days but not thereafter.
4. I find force in the contention raised by the counsel for the respondent because the award has been received by the appellant on 4.7.2003 and admittedly the application for setting aside the arbitral award as well as the application for condonation of delay has been filed on 25.11.2003. So the period of three months expired on 4.10.2003 and further thirty days thereafter expired on 4.11.2003. In this case, admittedly, the application for setting aside the arbitral award along with the application for condonation of delay has been filed on 25.11.2003. In this context, it would be relevant to refer the observations made by the Supreme Court in (supra), which is reproduced below:
10. We are primarily concerned with Sub-section (3) of Section 34 read with the proviso. Reading of Sub-section (3) along with the proviso of Section 34, it clearly transpires that the application for setting aside the award on the grounds mentioned in Sub-section (2) of Section 34 should be made within 3 months and the period can be further extended on sufficient cause by another period of 30 days and not thereafter that means so far as application for making or setting aside the award is concerned, the period of limitation has been prescribed in Sub-section (3), i.e. 3 months but it can be extended for another period of 30 days on sufficient cause being shown to the satisfaction of the court. Therefore, the applicability of Section 5 of the Limitation Act stands excluded and the application for condonation of delay upto a period of 30 days can be made by the court and not beyond that. Therefore, it was submitted that there is no scope for applicability of Section 14 of the Limitation Act in these proceedings by virtue of Sub-section (2) of Section 29 of the Limitation Act.
11. Sub-section (2) of Section 29 of the Limitation Act reads as under:
29.(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by Page 1626 the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.
5. The above observation of the Supreme Court, in my view, which is the ratio decidendi, would apply to the present facts of the case with all fours. In the aforesaid decision, it is clearly stated that the applicability of Section 5 of the Limitation Act stands excluded and the application for condonation of delay upto a period of 30 days can be made by the court and not beyond that. In the aforesaid decision referred to above, the Supreme Court has observed that if special period of limitation has been prescribed for making application for any condonation of delay or for any other purpose then that period of limitation prescribed under the special law shall prevail.
6. It is not the case of the appellant that receipt of the arbitral award was not on 4.7.2003 but on a later date. It is not debated that the arbitral award was received on 4.7.2003 and there is some delay due to unavoidable administrative procedures to be followed. Admittedly, showing those reasons, a separate application was filed, only during the pendency of the application for setting aside the arbitral award, to condone the delay or after the expiry of the period of limitation i.e. beyond the period of 4 months, i.e. 3 months + 30 days.
7. The question which arises for consideration before this Court is whether the limitation application is maintainable beyond the period of 3 months + 30 days for any reason whatsoever. As a matter of fact, the Section 34(3) of the Act provides that an application for setting aside may not be made after three months from the date of receipt of the arbitral award and if any request is made under Section 33 of the Act showing sufficient cause, that request can be entertained within a further period of thirty days but not thereafter. This indicates that there is a special provision regarding the period of limitation.
8. Now the learned Counsel for the appellant, referring the decision rendered in the case of Union of India v. Tecco Trichy Engineers and Contractors , would submit that in the similar circumstances the delay was condoned.
9. This decision (supra) would not be of any use to the present facts of the cases since the ratio decided by the Supreme Court in (supra) is that if special period of limitation has been prescribed for making application for any condonation of delay or for any other purpose then the Limitation Act shall stand excluded. This question has not been raised or urged before the Supreme Court in the case referred to by the counsel appearing for the appellant. Therefore, I am constrained to hold on the strength of the decision rendered in that the application filed before the Sub Judge for setting aside the arbitral award was clearly barred by limitation and as such, there is no merit in this appeal. So the order passed by the Sub Judge is affirmed.