JUDGMENT
M.R. Verma, J.
1. This objection petition under Section 34(3) of the Arbitration and Conciliation Act (hereinafter referred to as “the Act”) has been preferred by the objector/State against the award dated 8.10.1998.
2. Case of the objector is that the dispute between the parties was referred for arbitration by the sole Arbitrator who gave his award on 8.10.1998. However, the award is liable to be set aside on the grounds that (i) the Arbitrator has erroneously decided the issues which he has no power to decide, (ii) that the findings of the Arbitrator are based on surmises and conjectures, (iii) that the Arbitrator has acted without jurisdictions, and (iv) the Arbitrator has wrongly considered the matters covered under Clauses (2) and (3) of the contract as such matters were not arbitratual.
3. The objector also moved an application under Section 5 of the Limitation Act for condonation of delay in filing the objection petition, seeking exclusion of time it spent in prosecuting its objections against the award in other Courts.
4. The objection petition was resisted by the respondent. In the written reply, preliminary objections were raised (i) that the objections are barred by limitation, (ii) that the objections do not disclose any legal ground for setting, aside the award, and (iii) that the objections have not been filed by competent person. Even on merits the objections, as raised, were denied as incorrect.
5. Following issues were framed :
“(1) Whether the objection petition is within the period of limitation ? OP Objector
(2) Whether the Arbitrator has acted beyond the scope of the arbitration agreement, as alleged ? OP Objector
(3) Whether the objections have been filed by the competent person ? OP Objector
(4) Relief.”
6. Parties were given opportunity to lead evidence by affidavits.
7. On the request of the learned counsel for the parties, and as required in the facts and circumstances of the case, the parties were heard on the question of limitation by treating Issue No. 1 as preliminary issue.
8. My findings on the said issue are follows : Issue No. 1.
9. The material and admitted facts relevant for determination of the issue in hand arc that the Arbitrator made his award on 8.10.1998 and the objector received the copy of award on 21.10.1998. Thereafter, objections were filed by the objector in the Court of the learned Sub-Judge, Nurpur on 2.1.1999 and the objection petition was returned by the said Court on 5.6.1999. The objector then filed objections in the Court of the learned District Judge, Kangra at Dharamshala on 2.7.1999. The objection petition was returned even by the learned District Judge on 22.8.2000. Thereafter, the present objection petition was filed in this Court on 1.9.2000, that is, on the 315th day after the receipt of the award by the objector.
10. It was contended by the learned Law Officer for the objector that the objector had been bona-fide prosecuting its case before the different Courts and after deducting the time when the objection petition remained pending in the Court of the Sub-Judge and the District Judge, the objection petition has been filed in this Court within the period of limitation as provided under Section 34(3) of the Act. The emphasis was laid on the fact that the objections were filed in the Court of the learned Sub-Judge within 65 days i.e. within the period of limitation as provided under Section 34 of the Act and the time thereafter spent in prosecuting the matter in different Courts is liable to be deducted under Section 14 of the Limitation Act.
11. On the other hand, the learned counsel for the respondent had contended that the provisions of Section 34 of the Act are quite independent of the provisions of the Limitation Act and the Limitation Act has no application to the objection petition filed under Section 34 of the Act. It was further contended that the objector having failed to file the objections within the period prescribed under Section 34 of the Act, the petition is clearly time barred.
12. The fate of the issue in fact hinges on the answer to the question whether the provisions of Limitation Act are applicable to an application for setting aside an award under Section 34 of the Act or not ?
13. Section 29 of the Limitation Act, 1963 reads as follows :
“(29) Savings-
(1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the 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.
(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce nothing in this Act shall apply to any suit or other proceeding under any such law.
(4) Sections 25 and 26 and the definition of “easement” in Section 2 shall not apply to cases arising in the territories to which the Indian Easement Act, 1882, may for the time being extend.”
14. It is unambiguously clear from a bare reading of Sub-section (2) supra that when special or local law provides for any suit, appeal or application a period of limitation different from the period prescribed by the Limitation Act, the provisions in the special or local law will prevail and not the provisions of the Limitation Act, except as provided in the section itself. Thus, the provisions of Sections 4 to 24 of the Limitation Act will not apply to an appeal, suit or application where a different period is provided under a Special Act and the applicability of such sections is expressly or by necessary implications excluded.
15. An aggrieved party can now apply for setting aside an award made by an Arbitrator under Section 34 of the Act, which is indisputably a special statute. Sub-section (3) of Section 34 of the Act reads as follows :
“(3) 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.”
16. It is evident from a bare reading of the aforesaid provisions that these provide a period of limitation for filing an application for setting aside the award different from the period prescribed for making application under the Limitation Act. Though these provisions do not specifically provides that the provisions of the Limitation Act shall not he applicable to an application under Section 31 of the Act, but the proviso to Sub-section (3) supra specifically provides that the Court, if satisfied that the applicant was prevented by sufficient cause from making the application within the prescribed period of three months, it may entertain the application within a further period of 30 days, but not thereafter. Thus, the Act itself provides a further period for entertaining the application by the Court provided that sufficient cause for not filing the application within the period of three months is shown to the satisfaction of the Court. The proviso, thus, is evidently a substitute for the provisions of Section 5 of the Limitation Act and by necessary implications, excludes the applicability of Section 5 of the Limitation Act to the applications under Section 34 of the Act. The expression “but not thereafter” as used in the proviso supra, expressly debars a Court from entertaining an application for setting aside the award if it is not filed within the prescribed period or within the extended period of 30 days after expiry of the period of three months. Thus, the proviso to Sub-section (3) supra excludes the application of the Limitation Act to the applications for setting aside the award under Section 34 of the Act.
17. In Union of India v. Popular Construction Co. (2001) 8 SCC 470, 2001(3) Arb. LR 345 (SC)., while dealing with the respective scope of Section 29(2) of the Limitation Act and Section 34 of the Act, the Hon’ble Supreme Court held as follows :
“(8) Had the proviso to Section 34 merely provided for a period within which the Court would exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5.
(12) As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are “but not thereafter” used in the proviso to subsection (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would, therefore, bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result.
(13) Apart from the language “express exclusion” may follow from the scheme and object of the special or local law. “Even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation.” (SCC p. 146 para 17)
(14) Here the history and scheme of the 1996 Act support the conclusion that the time limit prescribed under Section 34 to challenge an award is absolute and unextendible by Court under Section 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which prescribed the 1996 Act stated as one of its main objectives the need “to minimise the supervisory role of Courts in the arbitral process”. Thus objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms, (16) Furthermore, Section 34(1) itself provides that recourse to a Court against an arbitral award may be made only by an application for setting aside such award “in accordance with” Sub-section (2) and Sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. Cut an application filed beyond the period mentioned in Section 34, Sub-section (3) would not be an application “in accordance with” that sub-section. Consequently, by virtue of Section 34(1), recourse to the Court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provides that:
“Where the time for making an application to set the arbitral award under Section 34 has expired…the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the Court.”
This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the Court was required to “proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow”. (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the Court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the Court’s powers by the exclusion of the operation of Section 5 of the Limitation Act.”
18. In Rajeev Sharda v. Executive Engineer, HP PWD, Theog, 2000(2) SLJ 1368, 2000 (Suppl.) Arb. LR 264 (HP).
a learned single Judge of this Court held as follows :
“(16) In the context or what has been stated in the preceding paragraph. It bears reiteration that the Court while interpreting the provisions of a statute has to do so in a manner that it does not do violence to the language of the particular provision of that statute under consideration of the Court. No authority is required to be stated herein as this is the well-settled law by now. Construed thus, there can be no other interpretation of Section 34(3) of the Act except that the application for setting aside the arbitral award can only be entertained within a further period of 30 days, beyond the prescribed limitation of three months, and that too after the Court is satisfied that the appleaant was prevented by sufficient cause from making the application within that time, “but not thereafter”.
19. In State of Himachal Pradesh v. Kataria Builders, OMP (M) No. 84 of 2000, decided on 20.9.2001 the facts wherein were almost similar to the facts of the case in hand, a learned single Judge of this Court held as follows :
“The contention is misplaced and cannot be accepted. As discussed earlier, there is a complete bar for entertaining the objections after the period limited under Section 34(3) of the Act. Prosecution of the objections in wrong forum may be a good ground for the condonation of the delay to the extent of 30 days and no more.”
20. It is, thus, clear that provisions of Sections 4 to 24 of the Limitation Act will not apply to an application under Section 34 of the Act by virtue of the bar created by the proviso to Sub-section (3) of Section 34 of the Act and the application for setting aside the award, if prescribed after expiry of the period provided under Sub-section (3) of Section 34 shall be barred by time and cannot be entertained.
21. There is no dispute that the present application has been filed after expiry of the period as provided under Sub-section (3) of Section 34 of the Act. Therefore, it is time barred. Accordingly, I hold that the objector has failed to prove that the objection petition is within the period of limitation and the issue in hand is accordingly held against the objector.
22. As a result, the objection petition is also application for condonation of delay in filing the objection petition merits dismissal and are accordingly dismissed.