Micro small medium idustries development act 2006
rajasekaran
(Querist) 13 December 2011
This query is : Resolved
For an application/appeal under 19 of MSMED Act read with section 34 of Arbitration and conciliation Act 1996 pre-deposit of 75% of award is mandated. Are the Courts entitled to condone delay beyond three months and 30 days in filling application with 75% pre-deposit? . If so under which provision of law representation delay/ filling delay is condonable?
rajasekaran
Raj Kumar Makkad
(Expert) 13 December 2011
It can be provided under sub section 3 of section 34 of Arbitration Act.
rajasekaran
(Querist) 13 December 2011
SIR SEC 34(3) IN FACT PROHIBITS.
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.
