Arbitration case in sc


Hello learned counsels,



We had an arbitration case against the state which was awarded to us by the arbitrator.
An appeal was made under section 34, We won the same in the district court.
An appeal was made against that in the Allahabad HC which was rejected by the honourable HC on delay condonation grounds of 100 days of delay.
The HC order clearly states that the delay of 100 days was not explained by the state, hence the delay condonation is dismissed.

Now, the state has filed a SLP in SC with a delay condonation appeal. Their 90 days limitation period to appeal in SC is again over by almost 580 days.

They are praying that they were not given a just chance of hearing in the HC, when the case was dismissed on delay of 100 days. While the fact is that the HC order clearly states that their reason for delay was not satisfactorily explained.
Their another prayer is that the award was against the conditions of the contract, which has already been explained in the arbitrator's award and the section 34 appeal.

With  the above fact in picture, how much chances do they have that their SLP might get dismissed on delay again or accepted.

Request your kind insight into the matter.


Eagerly waiting for the response.

Thanks in advance.
Manish

 
Reply   
 
director

1.Was the delay of 100 days in section 34 application beyond three months and 30 days from the date of receipt of award? 

If the delay was not explained then the application rightly, ought not to have been entertained.

If the delay was bonafide and  with due diligence and good faith and ecplained ,then u/s 14 of limitation it would have been condoned by Hon'ble High Court.

In  Apex court it goes by how well you are represented during admission and usually the delay u/s 34 as well as u/s 37 of Arbitration Act is taken seriously.

rajaekaran

 

 

 
Reply   
 



Thanks for your reply sir.

The delay of 100 days (over the 90 days limitation period) was in appealing to the HC against the district court's order under sec 34 of arbitration act.

The HC order reads thus,

"The state Government has granted permission for filing the instant appeal on 5.2.2008. After grant of permission on 5.2.2008. The appeal was filed on 15.5.2008. Three months delay has not been explained. The explanation given is scatchy that some official went who was advised to bring some more relevant
documents on 17.3.2008 and come back on 15.5.2008 and thereafter this appeal has been filed, therefore, it can not be said that the appeal is bonafide and genuine. We are not satisfied with the reasons stated in the affidavit for condoanation of delay.
What we have stated above is based on serious objection raised by the respondents.
Accordingly the application for condonation of delay is rejected. The appeal is also rejected"

 

In the SC SLP, the state is again 580 days delayed, and have prayed with the following questions of law:

1. Was the HC justified in dismissing the case because of delay when the delay was satisfactorily explained.

2. Was the HC justified in dismissing the case when the award was against the terms of the contract. (Terms of contact and award discussed at length during arbitration and appeal under sec 34)

With  the above fact in picture, how much chances do they have that their SLP might get dismissed on delay again or accepted.

Request your kind insight into the matter.


Eagerly waiting for the response.

Thanks in advance.
Manish

 
Reply   
 
director

In the SLP, the delay is after lapse of 90 days or  580 days delay is inclusive of prescribed period to appeal?

1. Was the HC justified in dismissing the case because of delay when the delay was satisfactorily explained.

yes , the HC was very much justified. Refer the citation as below.

Section 34 itself prescribes the period of limitation for making the application for setting aside an award as also the time from which such period starts reckoning. Therefore Article 5 of the Limitation Act has no applicability even on sufficient cause being shown by the applicant.

The arbitration, which is an alternate forum for redressal of disputes, is selected by the parties of their own free will and they agree to the arbitrator's decision by means of a mutual agreement or contract, which gives a go by to the normal judicial forum otherwise available to the parties. There is no compulsion or imposition by any statute compelling the parties to resort to arbitration if a dispute arises.

2. Was the HC justified in dismissing the case when the award was against the terms of the contract ?

Yes HC was justified. The HC could have gone into merrits only if the appeal was in time. Having delayed the filling of appeal they had lost the oppurtunity to be heard on merrits, even assuming for argument sake they had a good case on merrits.

3.How much chances in their SLP ?

Dont take chances. In SC issues are decided very quickly in admission stage and face value matters to be heard patentially. It is generally felt 10% of the senior councils are mostly entrusted 90% of the cases  and hence if stakes are high be wise to take  prudent decisions.

The dictum of Apex Court in the case of  Union Of India vs M/s Popular Construction Co. on 5 October, 2001  is applicable –

 

                                        i.    “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 sub-section  (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.”

 

                                       ii.    15. 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. But an application field 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 provide that "where the time for making an application to set aside the arbitral award under Section 34 has expired...the award shall be enforced and the Code of Civil Procedure 1908 in the same manner as if it were a decree of a court". This is a significant departure form the provisions of the Arbitration Act, 1940.    

 
Reply   
 

Respected Sir, One more query pls.

The HC order was of date 18-01-2010, and the State dept received the certified copy on 25-01-2010, they filed the SLP against it on 01-12-2011.

How will be the delayed number of days calculated. And who calculates and enters these days in the SLP file, Is it the petitioner or the SC court clerks or office staff or the Judge himself.

Thanks,

Manish

 
Reply   
 
director

usually the Apex Court considers delay when bonafide u/s 37 of Arbitration Act. But the delay u/s 34 of Arbitration Act is viewed very seriously and you have a good case to suceed even if appeal is taken up. 

Pl apply for copy application of delay condonation application and office note so that you can resist at admission stage.  

 
Reply   
 

Dear Sir,

There are numerous judgements by the Apex court condoning delay in filing Appeal under Section 37 and filing an slp before it, if the JDR happens to be goverement. So there is every possibility the delay may be condoned and the matter may be remanded back to High Court to hear it on merit. I assume there was no delay in filing of section-34 if that would have been the case then the dealy cannot be condoned by the Apex court. Generally the Apex court is soft on goverement when there is delay in section37 and SLP. Yes surely the Govt has slept over the matter before the High Court for 100 days and almost 1 and half year to file SLP, but  still there are chances the case may be remanded back to high court if the stake is high. I would advice you not take such hyper technical ground as it might back fire and in the mean time you might lose out few years. It is always adviced to finish the matter before the High court or Apex court on merits when you already have an order favouring you under section-34.

 
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