Hon'ble Arvind Kumar Tripathi (II),J.
Heard the learned standing counsel for the State.
The present appeal has been filed against the order dated 22nd September, 2011 passed in Misc. Case No. 08/74 of 2011 by the District Judge, Fatehpur whereby he has refused to condone the delay in filing objections under Section 34 of the Arbitration Act against the award dated 20th February, 2009 in Arbitration Case No. 40/2006, M/s Gautam Builders and another v. State of U.P. and others.
The Stamp Reporter in pursuance of order passed by this Court on 16th July, 2012 has reported that the present appeal is barred by time by 183 days. An application to condone the delay has been filed.
Having heard the learned standing counsel on the question of merit of the case, we dispose of the appeal itself at admission stage notwithstanding the fact that the appeal is barred by time.
It appears that against the award dated 20th February, 2009 passed by the Arbitrator, the present appellant filed objections purporting to be under Section 34 of the Arbitration Act. The said objections were barred by time and therefore, an application for condonation of delay was also filed. The delay was of about one year and 10 months in filing the objections. The court below has refused to condone the delay.
Sub-section (3) of Section 34 of the Arbitration Act provides limitation of three months from the date on which the party making the objection had received the arbitral award. Proviso to sub-section (3) of Section 34 of the Act states that the delay in filing the objection can be condoned for further period of 30 days but not thereafter. The said clause has been subject matter for interpretation by the Apex Court in the case of Union Of India v. M/S Popular Construction Co., AIR 2001 SC 4010 wherein it has been laid down that the maximum delay which can be condoned under the proviso is of 30 days. Meaning thereby, an objection has to be filed within three months + 30 days from the date on which applicant had received the arbitral award. The relevant para-12 of the said judgment is reproduced below:
"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 sub-section (3). In or 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."
In the case on hand, admittedly the condonation of delay sought for was more than 30 days, which cannot be condoned.
In view of the above, we find no merit in the present appeal. The view taken by the court below is perfectly justified under law.
The appeal is dismissed summarily.
(A.K. Tripathi (II),J) (Prakash Krishna,J) Order Date :- 13.8.2012 MK/