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k.chandrasekharan (advocate)     09 March 2010

arbitration

An application to set aside the award is filed under section 34 of the Arbitration and conciliation Act 1996, with 23 days' delay, beyond the three months' prescribed limtation. No application for condonation of delay is filed. After being pointed out of the lapse, the applicant files appliation under section 5 of the Limitation Act, after further delay of three months.

The question is:

(a) Since the main application to set aside the award is filed within 3 months + 30 days, can it be 'entertained'?

(b) Can the 'Court' deem the application under Section 5 of the Limitation Act filed later on, as filed under S.34 of the A & C act?

(c) Does the prescribed limitation under S.34,operate for 'condonation of delay' application also, absolutely?

(d) Whether the decision in Union of India v Popular construction apply here, since objections to the award is filed within 3 months + 30 days?

(e) Whether the aforesaid 30 days' 'grace period' is a right of the applicant?



Learning

 5 Replies

AEJAZ AHMED (Legal Consultant/Lawyer)     09 March 2010

The provisions contained in Section 5 of the Limitation Act, 1963 have no application to the proceedings under Section 34 of the Arbitration Act, 1996 as the same are liable to be treated to have been impliedly excluded, since Section 34 of the Arbitration Act, 1996 has provided for the period of limitation within which an application under Section 34 of the Arbitration Act, 1996 has to be taken out. It is contended that Section 34 of the Arbitration Act, 1996 itself is a self-contained code. Section 34 of the Arbitration Act, 1996 regulates the exercise of the discretion in the matter of condonation of delay by a competent court for a period of thirty days only "but not thereafter".

 
Section 34 of the Arbitration Act, 1996 provides for a period of
Limitation for filing a petition for setting aside the arbitral award. 
 
It reads thus:
 
     34. Application for setting aside arbitral award:--
 
     2) .....

 

34 (3)

 

An application for setting aside may not be made after three months have elapsed from the date on which die 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 bow 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.

 

In M/s. Popular Construction Co. the Supreme Court has authoritatively laid down the law and declared that the provisions of Section 5 of the Limitation Act, 1963 are not applicable to the application challenging the award under Section 34 of the Arbitration Act, 1996.

 

The decision of the Supreme Court in M/s. Hanuman Prasad & Brothers is an authority for the proposition that Section 5 of the Limitation Act is applicable to the proceedings before the court regarding making the award a rule of the court under the Arbitration Act, 1940. The decision is not an authority for the proposition that Section 5 of the Limitation Act would be applicable to the proceedings under Section 34 of the Arbitration Act, 1996.

 ______________________________________________________________________________

 

Answer to Q (a) Kindly go through the attached Judgment;

 

 

Answer to Q (b) & Q(c)  Section 5 of Limitation Act is not applicable, when the provision under Section 34 (3) itself provided for condonation of delay with a separate application;

 

 

Answer to Q (d) : Under M/s. Popular Construction Co. the Supreme Court has authoritatively laid down the law and declared that the provisions of Section 5 of the Limitation Act, 1963 are not applicable to the application challenging the award under Section 34 of the Arbitration Act, 1996 :

 

 

But in the absence of any separate application U/S. 34 (3) for condonation of delay,  the said ruling has no application to your case;

 

 Answer to Q (e): Yes the grace period of 30 days is the right to the applicant granted by the Act and Law;

AEJAZ AHMED (Legal Consultant/Lawyer)     09 March 2010

Answer to Q (a) Kindly go through the attached Judgment;


Attached File : 12 12 arbitration 1.pdf downloaded: 140 times

AEJAZ AHMED (Legal Consultant/Lawyer)     09 March 2010

Gulbarga University vs Mallikarjun S. Kodagali & Anr on 1 August, 2008

Supreme Court of India

 

" It is only by virtue of sub−section (2) of Section 29 of the Limitation Act that its operation is excluded to that extent of the area which is covered under the Arbitration and Conciliation Act, 1996. Our attention was also invited to the various decisions of this Court interpreting sub−section (2) of Section 29 of the Limitation Act with reference to other Acts like the Representation of the People Act or the provisions of the Criminal Procedure Code where separate period of limitation has been prescribed. We need not overburden the judgment with reference to those cases because it is very clear to us by virtue of sub−section (2) of Section 29 of the Limitation Act that the provisions of the Limitation Act shall stand excluded in the Act of 1996 to the extent of area which is covered by the Act of 1996. In the present case under Section 34 by virtue of sub−section (3) only the application for filing and setting aside the award a period has been prescribed as 3 months and delay can be condoned to the extent of 30 days. To this extent the applicability of Section 5 of the Limitation Act will stand excluded…."


Attached File : 43 43 gulbarga university vs mallikarjun s 1 kodagali anr on 1 august 2008.pdf downloaded: 131 times

k.chandrasekharan (advocate)     16 March 2010

Originally posted by :k.chandrasekharan
"


An application to set aside the award is filed under section 34 of the Arbitration and conciliation Act 1996, with 23 days' delay, beyond the three months' prescribed limtation. No application for condonation of delay is filed. After being pointed out of the lapse, the applicant files appliation under section 5 of the Limitation Act, after further delay of three months.

The question is:

(a) Since the main application to set aside the award is filed within 3 months + 30 days, can it be 'entertained'?

(b) Can the 'Court' deem the application under Section 5 of the Limitation Act filed later on, as filed under S.34 of the A & C act?

(c) Does the prescribed limitation under S.34,operate for 'condonation of delay' application also, absolutely?

(d) Whether the decision in Union of India v Popular construction apply here, since objections to the award is filed within 3 months + 30 days?

(e) Whether the aforesaid 30 days' 'grace period' is a right of the applicant?

I am thankful for the three responses. The answers erudite as they are, however have missed the subtle difference in the factual matrix presented. Hence I rephrase the questions posed by me for pointed response from all:

(a) Court has got powers to apply correct law, when a wrong provision of law is quoted. So, can the court consider application filed 'under s.5 of limitation act'  as 'under s.34(3) of A & C Act' ?

(b) Whether  limitation under S.34 (3) is applicable only to main petition u/s 34(3) or to application for condonation of delay also ? In other words, whether condonation upto 30 days has also to be sought within the said 30 days or can be sought at a later point of time ?

(c)Does the expression 'entertain' mean lesser than 'admit' ?

(d) Does the expression 'the court is satisfied' denote a state of 'present perfect tense operating 'on the very day of filing the application to set aside the award' ' vis a vis 'satisfies the court' in a present tense with implication 'when called upon' as in S.5 limitation act?

(e) Doesthe expression 'prevented' in S.34(3) has wider connotation or restricted one vis a vis 'not preferring' as used in S.5 lim.act ?

Simply put, if the petition to set aside is filed within the additional 30 days, can 'sufficient cause' for condonation can be shown at a later date or is it to be simultaneous ?

k.chandrasekharan

"

rajasekaran (director)     15 July 2012

The dictionary meaning of word "entertain" is: either to deal with it or admit to consideration; proceed to consider on merits or adjudicate upon; "receive" or "accept"; "file" or "receive" by the Court and may not mean hearing on merit. 

In Hindustan Commercial Bank Ltd. v. Punnu Sahu. AIR 1970 SC 1384 the Apex Court held that in the context of the Code of Civil Procedure, 1908 the expression "entertain" means "adjudicate upon" or "proceed to consider on merit." Thus, in such a case, an appeal or revision may be entertained, but the Court may not be able to decide it on merit owing to some difficulty, not in Jurisdiction but in procedure.

Similar view had been reiterated in Lakshmiratan Engineering Works Ltd. v. Assistant Commissioner (Judicial), Sales Tax, AIR 1968 SC 488. 

The word "entertain" has been considered by the Hon'ble Supreme Court in Anant Mill's case (AIR 1975 SC 1234) wherein it was held that it should be construed in the context of subject.

 

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.

When the application to set aside the award is proceeded to consider on merits or adjudicated, and if the delay in filing is explained ,delay can be condoned. 


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