{"id":372,"date":"2023-04-26T11:45:26","date_gmt":"2023-04-26T06:15:26","guid":{"rendered":"https:\/\/xpertslegal.com\/blog\/?p=372"},"modified":"2023-05-15T15:33:14","modified_gmt":"2023-05-15T10:03:14","slug":"arbitration-act-section-34-application-must-be-filed-in-90-days-for-claiming-exclusion-of-time-when-court-is-closed","status":"publish","type":"post","link":"https:\/\/xpertslegal.com\/blog\/arbitration-act-section-34-application-must-be-filed-in-90-days-for-claiming-exclusion-of-time-when-court-is-closed\/","title":{"rendered":"Arbitration act: \u2018Section 34 application must be filed in 90 Days for claiming exclusion of time when court is closed.\u2019"},"content":{"rendered":"

Bhimashankar Sahakari Sakkare Karkhane Niyamita<\/strong> [Appellant(s)] vs. Walchandnagar Industries Ltd.<\/strong> (WIL)[Respondent(s)]<\/p>\n

Facts: The appellant has filed the appeal against the judgment passed by the High Court of Karnataka by which it has dismissed the appeal filed to it and confirmed the order dated 02.04.2018 passed by trial Court,rejecting the application for condonation of delay caused in filing appeal against arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996 and holding that \u201cany period beyond the prescribed period,during which the Court or Tribunal has the discretion to allow a person to institute the proceeding, cannot be taken to be prescribed period under section 4 of the Limitation act.\u201d<\/p>\n

Issue:<\/strong> Whether when the last day of condonable period of 30 days falls on a holiday or during a court vacation, would the benefit of Section 10 of the General Clauses Act, 1897 would be available to the appellant?<\/p>\n

Arguments on behalf of counsel for appellant:<\/strong> Sr.Adv.Shri Shyam Diwan,He submitted that the limitation period for filing an application for setting aside the arbitral award under Section 34 is 3 months from the date on which the party making application has received the award. However, if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months,the provison to the Section specifies a further period of 30 days within which the application under Section 34 may be filed or entertained. He further submitted that in failing to notice Section 10 of the General Clauses Act,1897,the judgment in the case of Assam Urban, relied on heavily by the HC,disregards the principle embodied in the General Clauses Act which is much wider in its import and applicability and must necessarily step in to fill the vacuum left by Section 4 of the Limitation Act. He further relied on HUDA & Anr.vs.Dr.Babeswar Kanhar & Anr.(2005) 1 SCC 191, in which the SC has held that \u201cevery consideration of justice and expediency would require that the accepted principle which underlines Section 10 of the General Clauses Act, 1897 should be applied in cases where it does not otherwise in terms apply.\u201d He also relied on Manohar Joshi vs. Nitin Bhaurao Patil and Ors. (1996) which held that \u201cthe litigant has a right to avail limitation up to the last day and his only obligation is to explain his inability to present the suit \/ petition on the last day of limitation and each day thereafter till it is actually presented.\u201d He further submitted that the respondent cannot contend at the same time that the benefit of Section 4 and 5 of the Limitation Act, has no application to the condonable period under Section 34 of the Arbitration Act,as well as contend that the benefit of Section 10 of the General Clauses Act,1897 cannot be given to the appellant,as the present proceeding falls within the ambit of the phrase \u201cany act or proceeding to which the Indian Limitation Act, 1877, applies\u201d.<\/p>\n

Arguments on behalf of counsel for respondent:<\/strong> Sr. Adv. Shri Dhruv Mehta, He relied on the case of Assam urban, which held that Section 4 of the Limitation Act which applies only to \u201cprescribed period\u201d is not attracted when the last date of the \u201cfurther period\u201d of 30 days mentioned in Section 34(3) of the Limitation Act falls on a day on which the Court is closed. This has been affirmed by three Judges\u2019 Bench of this Court in the case of Sagufa Ahmed. He further submitted that correct application of Section 4 of the Limitation Act will result in a petition being entertained as a matter of right, without a party having to seek condonation of delay, since it applies only to petitions that would otherwise be within the \u201cprescribed period\u201d but its presentation within this period has been prevented due to closure of the Court, and cannot apply to a delayed petition where, in any event, the right to present the petition is subject sufficient cause being shown and condonation of delay being sought. He also submitted that the appellant had a further period of 25 days after expiry of \u201cprescribed period\u201d and before commencement of the winter vacation of the trial Court. However, the petitioner-appellant chose not to file its petition during this time and therefore, as to suffer for the inevitable consequences. He also submitted that Section 10 of the General Clauses Act, will also apply for the prescribed period of three months under Section 34(3)of the Arbitration Act and not to the discretionary period of 30 days under the proviso to Section 34(3) of the Arbitration Act.<\/p>\n

Held:<\/strong> The SC,while dismissing the appeal, held that section 34 application Must Be Filed Within 90 Days Limitation To Claim Exclusion Of Period When Court Remain Closed.<\/p>\n\n","protected":false},"excerpt":{"rendered":"

Bhimashankar Sahakari Sakkare Karkhane Niyamita [Appellant(s)] vs. Walchandnagar Industries Ltd. (WIL)[Respondent(s)] Facts: The appellant has filed the appeal against the judgment passed by the High Court of Karnataka by which it has dismissed the appeal filed to it and confirmed the order dated 02.04.2018 passed by trial Court,rejecting the application for condonation of delay caused […]<\/p>\n","protected":false},"author":1,"featured_media":439,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-372","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-judgement"],"_links":{"self":[{"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/posts\/372","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/comments?post=372"}],"version-history":[{"count":2,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/posts\/372\/revisions"}],"predecessor-version":[{"id":406,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/posts\/372\/revisions\/406"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/media\/439"}],"wp:attachment":[{"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/media?parent=372"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/categories?post=372"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xpertslegal.com\/blog\/wp-json\/wp\/v2\/tags?post=372"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}