Appeal No. 321 of 2016 in Arbitration Petition No. ARBP/724/2015. Case: Kajiva Construction Co. Pvt. Ltd. Vs Shyam Narayan & Brothers. High Court of Bombay (India)

Case NumberAppeal No. 321 of 2016 in Arbitration Petition No. ARBP/724/2015
CounselFor Appellant: Anjani Kumar Singh and Vatsal Verma i/b. Pallavi Marathe, Advs. and For Respondents: Jithin Palakkal and Priyanka Pawar i/b. Charvy Hatkananglekar, Advs.
JudgesAnoop V. Mohta and A. A. Sayed, JJ.
IssueArbitration and Conciliation Act, 1996 - Sections 14, 33, 34, 34(3), 34(1), 37; Limitation Act, 1963 - Sections 14, 14(2), 5
Judgement DateMay 04, 2016
CourtHigh Court of Bombay (India)

Judgment:

Anoop V. Mohta, J.

  1. This Appeal is filed under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, "the Arbitration Act") challenging order dated 31 August 2015 passed by the learned Single Judge rejecting the Appellant's Arbitration Petition under Section 34 on the ground of limitation. That resulted into confirmation of Award dated 17 February 2014 passed by the learned Arbitrator which allowed the claim of the Claimant/Respondent.

  2. The Respondent had undertaken the work of excavation for fleet building at Marol, Andheri (East). Disputes and differences had arisen between the Appellant and the Respondent due to nonpayment of the dues of the Respondent in connection with the work.

  3. The Respondent had filed a Civil Suit No. 2934 of 2010 in this Court for recovery of its dues on or about 10th November 2011. The Respondent had also filed Company Petition No. 282 of 2011 on or about 20 June 2011 under the provisions of sections 433 and 434 of the Companies Act, 1956. By consent of parties, the Civil suit and the Company Petition were disposed off vide order of this Court dated 9 August 2012, and the parties were referred to arbitration for adjudication of the disputes and differences to an Arbitrator.

  4. The parties submitted their pleadings and had led oral evidence of their respective witnesses and had also advanced their arguments in the matter. After hearing the parties and after considering the evidence on record the learned Arbitrator has passed impugned Award dated 17th February 2014.

  5. A copy of impugned Award dated 17 February 2014 was received by the Appellant on the same day viz. 17 February 2014. On 10 June 2014, an Arbitration Appeal No. 20 of 2014 was filed by the Appellant purportedly under Section 34 of the Arbitration Act on Appellate Side of this Court. On 15 September 2014 the Appeal came to be numbered by the Department after removal of objections by the Appellant. On 7 October 2014, an order is passed by the learned Single Judge (S.C. Gupte, J.)permitted the Appellant to convert the Arbitration Appeal to an Arbitration Petition based on the admission made by the Appellant that the Appellant had wrongly invoked the Appellate jurisdiction of this Court. On 7 November 2014, pursuant to order dated 7 October 2014, Arbitration Petition (L) No. 1739 of 2014 was transferred to the Original Side and the presentation date and filing of the Arbitration Petition is shown as 07-11-2014.

  6. On 24 March 2015, the matter was called out for rejection by the Prothonotary and Senior Master due to non-removal of objections and non-compliance of the rules of this Court. Time was granted to the Appellant to remove office objections and to comply with the rules upto 7 April 2015. On 28 April 2015 for some reason, a fresh Arbitration Petition with added grounds was filed by the Appellant under Section 34 of the Arbitration Act. On 2 May 2015, the Arbitration Petition filed by the Appellant was registered as ARBP/724/2015. On 31 August 2015, the impugned order is passed by the learned Single Judge dismissing the Arbitration Petition only on the ground of limitation which is the subject matter of this Appeal.

  7. The basic objection of Respondent is that there is no explanation provided by the Appellant for condoning the delay in filing Section 34 Application and specifically in view of the following mandatory provision of Arbitration Act, 1996.

    34. Application for setting aside arbitral award.--

    (1)...........

    (2)............

    (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...

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