The Mukhya Mahaprabandhak vs M/S Vijay Electrical … on 30 April, 2025

Rajasthan High Court – Jaipur

The Mukhya Mahaprabandhak vs M/S Vijay Electrical … on 30 April, 2025

Author: Bhuwan Goyal

Bench: Bhuwan Goyal

[2025:RJ-JP:18211-DB]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

            D.B. Civil Miscellaneous Appeal No.4955/2024

1.       The Mukhya Mahaprabandhak, Telecommunications De-
         partment, Sardar Patel Marg, Near Government Press,
         Jaipur.
2.       The Pradhan Mahaprabandhak, Bharat Sanchar Nigam
         Limited, Doorsanchar Bhawan, Lal Kothi, Jaipur.
                                                                     ----Appellants
                                       Versus
M/s Vijay Electrical, Through Partner Sh. Pankaj Kumar Siyal,
R/o 26, Adarsh Nagar, Gariyawat Road, Near Abhinav School,
Udaipur.
                                                                    ----Respondent

For Appellant(s) : Mr.Jitendra Sharma, Adv.
For Respondent(s) : Mr.O.P. Mishra, Adv.

HON’BLE MR. JUSTICE AVNEESH JHINGAN
HON’BLE MR. JUSTICE BHUWAN GOYAL

Order

30/04/2025

1. This appeal is filed against the order dated 22.10.2024

passed by the Commercial Court No.3, Jaipur Metro-II dismissing

the petition under Section 34 of the Arbitration and Conciliation

Act, 1996 (for short ‘the Act’) on the ground of limitation. The ad-

mitted facts that the award dated 10.06.2018 released on

20.09.2022 was served upon the appellant on 27.09.2022. The

petition under Section 34 of the Act was filed on 08.02.2023.

2. Section 34 (3) of the Act is reproduced:-

“(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

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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 en-
tertain the application within a further pe-
riod of thirty days, but not thereafter.”

3. The limitation for filing the petition under Section 34 of the

Act is of three months from the date of receipt of arbitral award.

The proviso empowers the court to condone the delay upto thirty

days.

4. In the present case, it is an admitted fact that the petition

was filed beyond one hundred and twenty days of receipt of arbi-

tral award. The Supreme Court in Union of India (UOI) Vs.

Popular Construction Co. reported in [(2001)8 SCC 470]

while adjudicating the issue regarding applicability of Section 5 of

1963 Act for condonation of delay in filing an application under

Section 34(3) of the Arbitration and Conciliation Act, 1996,

considering its earlier decision in Vidyacharan Shukla Vs.

Khubchand Baghel reported in [AIR 1964 SC 1099],

Hukumdev Narain Yadav Vs. Lalit Narain Mishra reported in

[(1974)2 SCC 133] held:-

“12. As far as the language of Section 34 of the 1996
Act is concerned, the crucial words are ‘but not there-
after’ 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 ap-
plication to set aside the award beyond the extended
period under the proviso, would render the phrase ‘but
not thereafter’ wholly otiose. No principle of interpre-
tation would justify such a result.

16. Furthermore, section 34(1) itself provides that re-
course to a court against an arbitral award may be
made only by an application for setting aside such

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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 filed beyond the period mentioned
in Section 34, sub-section (3) would not be an appli-
cation “in accordance with” that sub section. Conse-
quently by virtue of Section 34(1), recourse to the
court against an arbitral award cannot be made be-
yond the period prescribed. The importance of the pe-
riod fixed under Section 34 is emphasised by the pro-
visions of Section 36 which provide that
“where the time for making an application to set
aside the arbitral award under Section 34 has ex-
pired…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 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 accord-
ing to the award and upon the judgment so pro-
nounced 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 curtail-
ment of the Court’s powers by the exclusion of the op-
eration of Section 5 of the Limitation Act.”

A three Judge Bench of the Supreme Court in Consolidated

Department and Others reported in [(2008)7 SCC 169] again

considering Section 34(3) of the Act of 1996 after referring to the

relevant provisions observed as under :-

“When any special statute prescribes certain
period of limitation as well as provision for ex-
tension upto specified time limit, on sufficient
cause being shown, then the period of limitation
prescribed under the special law shall prevail
and to that extent the provisions of the Limita-
tion Act shall stand excluded. As the intention
of the legislature in enacting sub-section (3) of
Section 34 of the Act is that the application for
setting aside the award should be made within
three months and the period can be further ex-
tended on sufficient cause being shown by an-
other period of 30 days but not thereafter, pro-

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visions of Section 5 of the Limitation Act would
not be applicable because the applicability of
Section 5 of the Limitation Act stands excluded
because of the provisions of Section 29(2) of
the Limitation Act. ”

5. In view of well settled position of law, the Commercial Court

having no power to condone the delay beyond thirty days, rightly

dismissed the petition under Section 34 of the Act.

6. No case is made out for interference, the appeal is dis-

missed.

(BHUWAN GOYAL), J (AVNEESH JHINGAN), J

Himanshu Soni/49

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