ORDER
R.C. Jain, J.
IA No. 3716/2004 in OMP No. 196/2004
1. This is an application under Section 5 and 12 of the Limitation Act, 1963 read with Section 151 CPC praying for condensation of delay in filing the petition under Section 34 of the Arbitration and Conciliation Act, 1996 (referred to as the Act). The undisputed facts which may be noticed for the disposal of the present application are that disputes/differences having arisen between the parties, the same were referred to the Arbitral Tribunal comprised of three arbitrators. Two arbitrations made and published their majority award on 12.1.2004 while the third arbitrator gave a minority Award on 14.1.2004. The petitioner/applicant herein filed an FAO under Section 34 of the Act on 6th April, 2004. Registry raised objection about the maintainability of the FAO for the purpose of challenging the award of the Arbitral Tribunal and asked the petitioner to explain as to how the FAO lay in such a matter. On 27.4.2004, the petitioner took back the FAO and refiled the same titling it as OMP this time. Registry again raised certain objections and the said petition was taken back and OMP refiled on 27.5.2004. The objections were removed on 28.5.2004. It is averred in the application seeking condensation of delay in filing/re-filing the petition that the above delay in refiling was occasioned due to bana fide reasons and beyond the control of the applicant. It is also mentioned that clerk of the counsel had gone on a holiday so FAO which was filed as on 6th April, 2004 could not be taken back for a period of 21 days.
2. The application is opposed on behalf of the respondent and a detailed reply has been filed raising various preliminary objections about the maintainability of the application and also oh merits thereby stating that no sufficient cause is made out for condoning the delay and in any case the delay being of 46 days is not liable to be condoned as this Court has no power to condone the delay beyond 30 days, within the meaning of Section 34(3) of the Act.
3. I have heard Mr. Rajiv Tyagi learned counsel for the petitioner and Mr. P.N. Kumar learned counsel for the respondent and have given my thoughtful consideration to their submissions. Section 34(3) of the Act provides that an application for setting aside of an award can be made within a period of three months from the date on which the party making the application had received the arbitral award and if a request has been made under Section 33 of the Act, from the date on which such request has been disposed of by the Arbitral Tribunal. The proviso to the Section gives a judicial discretion to the Court to extend the said period of three months by a period up to 30 days provided it is shown that the applicant was prevented by sufficient cause from making an application within the period of three months. There is no dispute to the legal proposition that there is no power vested in a Court dealing with an application under Section 34 of the Act to extend the period of filing of an application under Section 34 beyond a period of three months plus 30 days. However, the question which has arisen in this case is as to when the applicant will be deemed to have filed the application under Section 34 in the present case? It may be noticed at once that even the first proceedings filed by the petitioner, though titled as FAO, were in fact filed under Section 34 of the Act with the prayer of setting aside the majority award. It is true that no FAO is provided and would lie for setting aside the award of the arbitrator, but at the same time, this Court cannot lose sight of the important aspect that the petitioner had approached this Court with the proceedings which were nothing but a petition under Section 34 of the Act seeking to challenge the majority award. In the opinion of this Court, prefacing the said proceedings as FAO can at best be said to be an error in mentioning the correct nature of the proceedings though in substance the proceedings filed by the petitioner remained the same. There is no denial of the position that from the later actions/omissions of the petitioner in refiling the corrected proceedings, exhibits a conduct which cannot be said to be ideal. The petitioner has explained the circumstances why delay of some days was caused in refiling the petition under the correct caption. In the opinion of this Court, this Court must accept the said explanation and condone the delay in filing/refiling the application under Section 34 of the Act. Doing otherwise would deprive the petitioner of a very valuable right which has been granted to him by the Legislature on a very hyper-technical view of the matter. In the result, the application is allowed and the delay in filing/refiling the application under Section 34 is condoned, however subject to payment of Rs. 10,000 as cost.
OMP No. 196/2004
4. Application under Section 34 is taken on record and shall be proceeded in accordance with law. Reply, if any, may be filed within four weeks. Rejoinder within two weeks thereafter. List on 13th January, 2005.