Patna High Court – Orders
The State Of Bihar And Ors vs M/S Dayanand Prd Sinha And Com on 25 August, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.34 of 2017
======================================================
1. The State Of Bihar and Ors
2. The Engineer in Chief Road Construction Department, 'Vishwesharraiya
Bhawan' Bailey Road, Patna.
3. The Chief Engineer N.H., Road Construction Department, 'Vishwesharraiya
Bhawan' Bailey Road, Patn
4. The Superintending Engineer, Road Construction Department, N.H. Circle
Dehri-on-Sone.
5. The Executive Engineer, Road Construction Department, Kochas at
Mohania.
... ... Petitioner/s
Versus
M/s Dayanand Prd Sinha and Com Son of Sri H.B. Lal, Resident of Janta
Path, Kankarbagh Road, Police Station Kankarbagh, District- Patna.
... ... Respondent/s
======================================================
with
CIVIL REVISION No. 66 of 2017
======================================================
1. The State Of Bihar and Ors null null
2. The Engineer in Chief, Road Construction Department 'Vishwesharraiya
Bhawan' Bailey Road Patna.
3. The Chief Engineer N.H., Road Construction Department 'Vishwesharraiya
Bhawan' Bailey Road Patna.
4. The Executive Engineer, Road Construction Department, N.H. Road
Division, Gulzarbagh, Patna.
... ... Petitioner/s
Versus
M/s Dayanand Prasad Sinha And Co. S/o Shri H.B. Lal, R/o Janta Path,
Kankarbagh, District- Patna.
... ... Respondent/s
======================================================
with
CIVIL REVISION No. 112 of 2017
======================================================
1. The State Of Bihar and Ors
2. The Engineer-in-Chief, Road Construction Department, Vishweshwaraiya
Bhawan, Bailey Road, Patna.
3. The Chief Engineer South Bihar, Road Construction Department,
Vishweshwaraiya Bhawan, Bailey Road,
4. The Superintending Engineer, Road Construction Department , Bhojpur
Road Circle, Ara.
Patna High Court C.R. No.34 of 2017(16) dt.25-08-2025
2/15
5. The Executive Engineer, Road Construction Department, Road Division,
Bhabhua.
... ... Petitioner/s
Versus
M/s Dayanand Prasad Sinha And Co. S/o Shri H.B. Lal R/o Janta Path,
Kankarbagh, District and Town Patna.
... ... Respondent/s
======================================================
Appearance :
(In CIVIL REVISION No. 34 of 2017)
For the Petitioner/s : Mr. Ashok Kumar Dubey, Ac to AAG-XI
: Mr. Dinesh Maharaj, AC to AAG-XI
For the Respondent/s : Mr. Lal Babu Singh, Advocate
: Mr. Nilesh Kumar Pandey, Advocate
(In CIVIL REVISION No. 66 of 2017)
For the Petitioner/s : Mr. Ashok Kumar Dubey, Ac to AAG-XI
: Mr. Dinesh Maharaj, AC to AAG-XI
For the Respondent/s : Mr. Lal Babu Singh, Advocate
: Mr. Nilesh Kumar Pandey, Advocate
(In CIVIL REVISION No. 112 of 2017)
For the Petitioner/s : Mr. Ashok Kumar Dubey, Ac to AAG-XI
: Mr. Dinesh Maharaj, AC to AAG-XI
For the Respondent/s : Mr. Lal Babu Singh, Advocate
: Mr. Nilesh Kumar Pandey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
CAV ORDER
16 25-08-2025
Heard learned counsel for petitioners and
respondents.
2. All these revision applications have been filed
against the different Awards, passed by the Bihar Public Works
Contract Disputes Arbitration Tribunal in different Reference
Cases, along with the interlocutory applications for condonation
of delay.
3. These civil revision applications are barred by
limitation inasmuch it has been filed after more than ten months
from the date of the Award. The period of limitation, under the
Limitation Act, 1963, is of three months for filing of civil
Patna High Court C.R. No.34 of 2017(16) dt.25-08-2025
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revision application against an Award. The Act, however, does
not prescribe any upper limit within which the civil revision
application must be filed. The Limitation Act is, thus, being
claimed to be applicable to the provisions of Bihar Public Works
Contracts Disputes Arbitration Act, 2008 (hereinafter referred as
‘BPWCDA Act’).
4. Learned counsels submitted that the question
of applicability of the provisions contained in Section 5 of the
Limitation Act to the proceeding under Section 34 Clause 3 of
the Arbitration and Conciliation Act, 1996. It is further
submitted that the Act of 2008 shall follow the principle of
Arbitration and Conciliation Act, 1996. It is also submitted that
there are contradicted view of co-ordinate benches of this Court
in similar matter wherein Civil Revision No. 9 of 2017 vide
order dated 05.04.2023, co-ordinate bench of this Court dealing
with similar issue held that:
“13. Under the provision of Section 13 of
the Act of 2008, revision is provided to High
Court Suo moto at any time or on an
application made to it within three months
from the date on which the Award is made.
The High Court under the provision of
Section 13 (1) may make such order in the
case as it thinks fit. There is no prescribed
period for Suo moto exercise of revisional
jurisdiction, however, an aggrieved party
Patna High Court C.R. No.34 of 2017(16) dt.25-08-2025
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file the revision. Under Section 13(1)
nowhere expressly exclude the applicability
of provisions of the limitation Act, 1963.
The provisions of Section 5 are applicable
to Section 13 as they are not expressly
excluded by the provisions under the Act of
2008. Because of the scheme of the Act, it
cannot be inferred that by implication, the
provisions of Section 5 of the Limitation
Act, 1963 are excluded. Provisions
contained in Section 29(2) of the Limitation
Act, 1963 would be extracted as there is no
express exclusion or implication, in view of
the provision of the Act of 2008. Moreover,
Section 13(2) of the Act of 2008 for the
purpose of exercising its power of revision
under this Section, the High Court shall
have the same power as it has, and as far as
it may be, follow the same procedure as it
follows, under the Civil Procedure code
while exercising its power of revision under
Section 115 of the Code and for that
purpose the Tribunal shall be deemed to be
a Court Subordinate to it.
16. In view of the decisions of the Hon’ble
Supreme Court and submissions made by
the parties, the provisions of Section 5 of
the Limitation Act, 1963 is applicable to the
revisional power of the High Court under
Section 13 of the act of 2018.”
4.i. Further, in Civil Revision No. 84 of 2018
vide order dated 15.04.2024, another co-ordinate bench of this
Court in similar case (2024 (2) PLJR (496)) held that:
“16. Though the limitation for preferring a
Patna High Court C.R. No.34 of 2017(16) dt.25-08-2025
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Act of 2008 is three months, in view of the
provisions of section 8 of the Act of 2008
read with proviso to section 34(3) of the Act
of 1996, the delay in filing of the revision
application may be condoned by the Court
and the application for setting aside the
award entertained up to a further period of
30 days, but not thereafter. As seen above,
the Hon’ble Supreme Court in the case of
Assistant Commissioner (CT) LTU,
Kakinda & Ors. (supra) has held that in
exercising powers under Article 142 of the
Constitution in assessing the need to do
complete justice to the parties, the Supreme
Court will take note of the express
prohibitions in any substantive statutory
provision and regulate the exercise of its
powers and discretion accordingly. It
further held that what the Supreme Court
cannot do in exercise of its plenary powers
under Article 142 of the Constitution, the
High Court cannot take a different
approach in the matter under Article 226 of
the Constitution. Thus, in view of the
categorical bar as provided in the proviso
to section 34(3) of the Act of 1996 that the
delayed application under section 34 may
be entertained up to a further period of 30
days beyond the period of limitation but not
thereafter, in the opinion of the Court, the
delay in filing of the instant application
which is of 3 years 3 months and 25 days
cannot be condoned.”
5. On plain reading of relevant provisions of both
the acts and material available on record it is to be noticed that
Arbitration and Conciliation Act, 1996, has been enacted to
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consolidate and amend the laws relating to domestic arbitration,
international commercial arbitration, and enforcement of foreign
Arbitral awards as also to define the law relating to conciliation
and for matters connected therewith or incidental thereto.
Further, it is evident that Section 8 of the BPWCDA Act, 2008
specifically states that in addition to and supplemental to
Arbitration and Conciliation Act, 1996 and not in prerogative
way. As there is no conflict in the present cases with regard to
the delay of more than ten months according to the Arbitration
and Conciliation Act, 1996 and Bihar Public Works Contracts
Disputes Arbitration Act, 2008. Section 34 (3) of the Arbitration
and Conciliation Act, 1996, read as follows:
“34. Application for setting aside Arbitral
award: –
(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 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 entertain the application
within a further period of thirty days, but
not thereafter.”
Patna High Court C.R. No.34 of 2017(16) dt.25-08-2025
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5.i. Section 8 of the BPWCDA Act, 2008 which
reads as follows:
“Section 8 of the Bihar Public Works
Contracts Disputes Arbitration Tribunal
Act, 2008, declares that the provisions of
the Act shall be in addition to and
supplemental to Arbitration & Conciliation
Act, 1996 and in case any of the provision
contained herein is construed to be in
conflict with the Arbitration Act, then the
latter Act shall prevail to the extent of
conflict.”
5.ii. Section 17 of the BPWCDA Act, 2008,
which reads as follows:
“17. Application Of Sections 4 And 12 Of
The Limitation Act 1963:- In computing the
period of limitation laid down in sub-
section (1) of Section 8, and sub-section (2)
of Section 11 and sub-section (1) of Section
12, the provisions of Sections 4 and 12 of
the Limitation Act, 1963, shall, so far as
may be, apply.”
6. The question involved while exercising
revisional power under Section 13 of the BPWCDA Act, 2008
contained the delay in case as the revision is under Section 13 of
the BPWCDA Act, 2008 if filed beyond 90 days from the date
on which the Award or interim Award is made or reviewed under
this Act or it excludes the applicability of Section 29 of the
Limitation Act, 1963 and in-consequent of Section 5 of the
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Limitation Act, 1963. Section 13 of the BPWCDA Act, which
reads as follows:
“13. Revision: – (1) The High Court may,
Suo moto at any time or on an application
made to it within three months from the
date on which the award or interim award
is made or reviewed under this Act, by any
party aggrieved by the award or interim
award so made or reviewed, call for the
record of any case in which an award or
interim award has been made or as the case
may be reviewed and if the Tribunal
appears-
(a) to have exercised a jurisdiction not
vested in it by law, or
(b) to have failed to exercise a jurisdiction
so vested, or
(c) to have acted in the exercise of its
jurisdiction illegally or with material
irregularity, the High Court may make such
order in the case as it thinks fit.
(2) For the purpose of exercising its powers
of revision under this section, the High
Court shall have the same powers as it has,
and as far as may be, follow the same
procedure as it follows, under the Code of
Civil Procedure, 1908 while exercising its
powers of revision under Section 115 of the
Code and for that purpose the Tribunal
shall be deemed to be a Court subordinate
to it.”
6.i. The provisions contained in Section 29
Clause 2 of the Limitation Act, 1963 deals with Savings, which
Patna High Court C.R. No.34 of 2017(16) dt.25-08-2025
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is extracted, here-under:
“29. Savings: –
(2). Where any special or local law
prescribes for any suit, appeal or
application a period of limitation different
from the period prescribed by the Schedule,
the provision of Section 3 shall apply as if
such period were the period prescribed by
the Schedule and for the purpose of
determining any period of limitation
prescribed for any suit, appeal or
application by any special or local law, the
provision contained in Section 4 to 24 shall
apply only in so far as, and to the extent to
which, they are not expressly excluded by
such special or local law”
7. In the case of State of State of Madhya
Pradesh and others Vs Anshuman Shukla reported in (2014)
10 SCC 814, Hon’ble Supreme Court has held that even if the
amendment of Section 19 of the Madhya Pradesh Madhyastham
Adhikaran Adhiniyam, 1983 was made in 2009 as the Court had
the power to take Suo moto cognizance and call for record of an
Award at any time, there was no legislative intent to exclude the
applicability of Section 5 of the Limitation Act, 1963. Apart
from that, the Hon’ble Supreme Court has observed that Section
19 of the Act of the 1983 did not contain any express rider on
the power of the High Court to entertain an application for
revision after the expiry of prescribed limitation there under.
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The provisions of Section 29(2) of Indian Limitation Act are
applicable in absence of such rider and delay in filing the
revision was condoned.
8. In the case of My Preferred Transformation
and Hospitality Private Limited and Anr. v. Faridabad
Implements Private Limited reported in (2025) 6 Supreme
Court Cases 481, Hon’ble Supreme Court referring to the
judgment Union of India vs. Popular Construction Co. [(2001)
8 SCC 470] has held that:
“19. In my personal opinion, the statutes
ought not to provide different period of
limitation for instituting suit, preferring
appeal and making an application, rather
all statutes should stick to a uniform period
of limitation say 90 days for preferring
Special Leave Petition/Appeal to the
Supreme Court of India. The courts should
also be empowered to condone the delay if
sufficient cause is shown for not filing it
within the time prescribed rather than
restricting the condonable period to a fix
period of 15 days or 30 days as provided in
some of the statutes.
20. This deviation and restriction create
confusion and ordinarily even a lawyer at
times fails to notice that a different period
of limitation has been prescribed for
preferring an appeal under a particular
statute. Moreover, there may be genuine
cases where the litigant may not be able to
approach the court in time for cogent
Patna High Court C.R. No.34 of 2017(16) dt.25-08-2025
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arbitration matters where an award is
passed on a particular date and a copy of it
is also served upon the litigating party but
that party happens to be seriously ill and
hospitalized for months together and as
such is unable to prefer a petition under
Section 34 within the period of limitation
prescribed. If the delay in challenging the
award is not condoned beyond the period of
30 days, he would suffer great prejudice
and may lose the remedy on a technical
ground even though he may be having a
good case on merit. There may also be a
situation where a litigant is facing
proceedings by the law enforcement
agencies like the Enforcement Directorate,
Central Bureau of Investigation, etc., and is
taken into custody and as such is unable to
take the legal remedy within the period of
limitation prescribed. He avails the remedy
only after he is out of custody; months after
the service of the order. In such
circumstances, in my opinion, the
legislature ought not to confine condoning
the delay only for a prescribed period and
not beyond it. Rather it should follow the
principle of condoning the delay as
enshrined under Section 5 of the Limitation
Act. This would not only avoid a good case
to be thrown out on the ground of limitation
but at the same time would bring about
uniformity in law.
21. I, therefore, suggest to the law makers
to keep this in mind while enacting new
Acts and ensure that uniform system is
applied in all enactments, be it present or
future.”
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9. Further the Hon’ble Supreme Court in the case
of Union of India vs. Popular Construction Co. [(2001) 8 SCC
470] held as follows:
“16. 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 filed beyond the period
mentioned in Section 34, sub-section (3)
would not be an application “in accordance
with” that subsection. 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 emphasized 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 under the
Code of Civil Procedure, 1908 in the
same manner as if it were a decree of
the 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 according to the award, and upon
the judgment so pronounced 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
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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 curtailment of the court’s powers
by the exclusion of the operation of Section
5 of the Limitation Act”
10. From reading the provision, it is clear that an
application to set aside an Arbitral award under Section 34 must
be within 3 months from the receipt of the award or the date of
disposal of a request under Section 33. Further, the Court may
exercise discretion to entertain the application, within a further
period of 30 days, if sufficient cause is shown, but not
thereafter. As per Section 29(2) of the Limitation Act, the effect
of there being a different limitation period under Section 34(3)
is that, Section 3 of the Limitation Act applies to proceedings
under Section 34 of the Arbitration and Conciliation Act, 1996
as if the 3-month limitation period is the period prescribed in the
11. Further, Sections 4 to 24 of the Limitation
Act apply to determine whether the application is within the
period of limitation, “insofar as, and to the extent to which, they
are not expressly excluded”. There are two aspects necessary for
our consideration at this point: first, the interpretation of
“express exclusion”; and second, the extent of such exclusion.
The mere prescription of a period of limitation that is different
Patna High Court C.R. No.34 of 2017(16) dt.25-08-2025
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not sufficient to displace the applicability of the Limitation Act‘s
provisions. However, an exclusion of the Limitation Act‘s
provisions can be inferred if the nature and language of the
provisions, and the scheme of the special law necessarily
exclude the applicability of one or more of the provisions
contained in Sections 4 to 24 of the Limitation Act. Section 34
(3) of the Arbitration and Conciliation Act, 1996 clearly states
that the application may be entertain within a period of 3
months extended by thirty days but not thereafter whereas
Section 13 of the BPWCDA Act, 2008 states that application
made to it within three months and it does not clearly exclude
the same as it is in addition to and supplemental to Arbitration
and Conciliation Act, 1996. Thus, as per settled case law, an
express reference to an exclusion is not essential and the court
can examine the language of the special law and its scheme to
arrive at a conclusion that certain provisions of the Limitation
Act are impliedly excluded. In my opinion the provisions of
Section 5 of the Limitation Act, 1963 is applicable to the
revisional power of the High Court under Section 13 of the
BPWDCA Act, 2008.
12. As there is conflicting view upon the same by
Patna High Court C.R. No.34 of 2017(16) dt.25-08-2025
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view that the issue should be examined by a larger bench for
deciding as to whether Section 5 of the Limitation Act shall
have an application for condoning delay in a proceeding under
Section 13 of the BPWCDA Act, 2008, or the condition of delay
as laid down under Section 34 of the Arbitration and
Conciliation Act, 1996 shall be applicable, in view of Section 8
of the BPWCDA Act, 2008, which contemplates that- “the
provisions, under the Act, are in addition to and supplementary
to the Arbitration and Conciliation Act, 1996 and in case of any
provision contained therein is in conflict with the Arbitration
Act, the latter Act shall prevail.”
13. Accordingly, let the records of these cases be
placed before the Hon’ble Chief Justice, Patna High Court for
considering the desirability of referring them to an appropriate
larger bench as to which act shall be applicable for the purpose
of limitation.
(Ramesh Chand Malviya, J)
sunnykr/-
U