TaxTMI 
TaxTMI 
2020 (10) TMI 1348
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....iation Act, 1996 (Act 26 of 1996)', which shall hereinafter be referred to as 'A and C Act' for the sake of brevity. 3.Aforementioned said OP has been presented in this Court on 14.10.2019 with the captioned application i.e., A.No.9150 of 2019 with a prayer to condone, what according to the applicants, is 30 days delay in filing said OP. 4. In this order, from hereon 'Applicants' shall be collectively referred to as 'Southern Railways' and 'sole respondent' shall be referred to as 'Contractor', for the sake of convenience and clarity. 5. This Court is informed without any disputation or disagreement that there is an 'agreement dated 08.10.2009' (hereinafter 'said contract' for the sake of brevity) between Southern Railways and Contractor for gauge conversion work in Mayliaduthurai-Thiruvarur-Karaikudi sector and some construction between Mayliaduthurai-Thiruvarur Railway Stations. 6.Owing to the nature and limited scope of the captioned application which this Court is now concerned with, suffice to say that there is a arbitration clause in the said contract, arbitral disputes inter alia touching upon reduction of vitia....
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.... that date of receipt of the impugned award should be excluded for computing three months. This is mentioned only for making it clear that 14.06.2019 (reckoning date for computing three months) has also been included in the undisputed dates (tabulation supra) because of this reason. This Court is clear that the date of receipt of the impugned award should be excluded is the Himachal Techno Engineers principle. 10. This Court, having set out essential facts that are imperative for appreciating this order by way of factual matrix in a nutshell and undisputed dates, now proceeds to capture and to set out rival submissions. 11. Learned Standing Counsel for Southern Railways made submissions in support of prayer in captioned application for condonation of delay and a summation of his submissions is as follows: a) Relying heavily on the expression 'prevented by sufficient cause' occurring in proviso to Section 34(3) of A and C Act, it was submitted that this Court was closed for Dussehra vacation, therefore Southern Railways was prevented from presenting said OP on 13.10.2019; b) As Southern Railways was prevented from presenting said OP upto 13.10.2019 (on and from 05.10.2....
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....ompany Pvt. Ltd., Vs. JSW Steel Limited reported in MANU/MH/0551/2019; (x) Order of Hon'ble Supreme Court dated 18.09.2020 in Civil Appeal No.003007-003008 of 2020 in Sagufa Ahmed and others Vs. Upper Assam Plywood Products Pvt. Ltd., case. 13. Popular Construction Limited case reported in (2001) 8 SCC 470 and Simplex Infrastructure case reported in (2019) 2 SCC 455 were pressed into service to emphasis that the expression 'but not thereafter' occurring in proviso to sub-section (3) of Section 34 is all too important and Hon'ble Supreme Court has held that this expression would become otiose if any delay beyond 30 days is condoned. 14. Anil Kumar Jinha Bai case reported in (2018) 15 SCC 178 and Assam Urban Water Supply case reported in (2012) 2 SCC 624 were pressed into service to buttress the argument that the benefit of exclusion of period during which Court is closed is available only for prescribed period of limitation i.e., three months under sub-section (3) of Section 34 and not to 30 days (vide proviso) beyond 3 months, which is the condonable period and which is in the nature of a cap qua condonable period. P.Radha Bai case reported in 2018 SCC online ....
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....se laws with the exception of Assam Urban Water Supply case law are not of relevance as they pertain to larger periods of delay; b) Assam Urban Water Supply case was sought to be distinguished by saying that it is a case where recourse was taken to Section 4 of Limitation Act, whereas that is not so in the case on hand. Sagufa Ahmed case was sought to be distinguished by saying that it was a case pertaining to a suo motu order passed by Hon'ble Supreme Court pursuant to lockdown and interpretation of the suo motu order. 17. This Court, having set out the rival submissions, now proceeds to discuss the same and give its dispositive reasoning for arriving at a conclusion. 18. At the out set qua discussion and dispositive reasoning, this Court deems it appropriate to set out two aspects of the matter with specificity. First aspect is, this Court would proceed with the discussion and dispositive reasoning without touching upon orders of Hon'ble single Judges of Karnataka High Court and Bombay High Court. The reason is, the proposition or point for which they were placed before this Court i.e., Court being closed on the last day is applicable only to prescribed period of limi....
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....s or days. In the case on hand with regard to sub-section (3) of Section 34 of the A and C Act, the statute has chosen to use the unit 'months' in sub-section (3) and the unit 'days' in the proviso. Therefore, three months is the prescribed period of limitation and 30 days is the further condonable period thereafter. 30 days (post three months) is also a cap beyond which there can be no condonation. Significant point is three months cannot be read as 90 days. This is because, a month may or may not be made up of 30 days. A month can be 28 days, 29 days, 30 days or 31 days depending on the month/s and the year i.e., as to whether it is a leap year or not, if one of the months we are concerned with is 'February'. In effect, three months occurring in sub-section (3) which is the prescribed period of limitation has to be reckoned in a particular manner and 30 days occurring in the proviso being further condonable period (post three months) has to be reckoned in another manner as the units are different. As there is no contest about this distinction between the two units i.e., months and dates, this Court deems it appropriate to not to burden this order with extr....
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....nths that had elapsed after the occurrence of a specified event, such as the giving of a notice, the general rule is that the period ends on the corresponding date in the appropriate subsequent month irrespective of whether some months are longer than others. To the same effect is the decision of this Court in Bibi Salma Khatoonv.State of Bihar[(2001) 7 SCC 197] . 18. Therefore when the period prescribed is three months (as contrasted from 90 days) from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending upon the months, it may mean 90 days or 91 days or 92 days or 89 days. ' 24. A perusal of aforesaid illustrative paragraphs in the order of Hon'ble Supreme Court brings to light that reliance has been placed on an earlier case law, namely Bibi Salma Khatoon case. This Court, therefore, took it upon itself to respectfully look up Bibi Salma Khatoon's case. In Bibi Salma Khatoon case, three months from the date of registration of document under Bihar Land Reforms (Fixation of Ceilign Area and Acquisition of Surplus Land) Act, 1961 (12 of 1962) fell for considerati....
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.... 12.11.2007, after excluding 12.11.2007, 3 months was calculated from 13.11.2007 and it was held to expire on 12.02.2008. In Assam Urban Water Supply case, Paragraph 10 is of relevance qua computation and the same reads as follows: '10. The facts in the present case are peculiar. The arbitral awards were received by the appellants on 26-6-2003. No application for setting aside the arbitral awards was made by the appellants before elapse of three months from the receipt thereof. As a matter of fact, three months from the date of the receipt of the arbitral award by the appellants expired on 26.11.2003. The District Court had Christmas vacation for the period from 25.12.2003 to 1-1-2004. On reopening of the court i.e., on 2-1- 2004, admittedly the applicants made applications for setting aside those awards under Section 34 of the 1996 Act. If the period during which the District Court, Kamrup, Guwahati remained closed during Christmas vacation, 2003 is extended and the appellants get the benefit of the period over and above the cap of thirty days as provided in Section 34(3), then the view of the High Court and the District Judge cannot be sustained. But this would depend on th....
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....of prescribed period when court is closed.- Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. Explanation.-A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day." The above section enables a party to institute a suit, prefer an appeal or make an application on the day the court reopens where the prescribed period for any suit, appeal or application expires on the day when the court is closed. 13. The crucial words in Section 4 of the 1963 Act are "prescribed period'. What is the meaning of these words? 14. Section 2(j) of the 1963 Act defines: 2(j) "period of limitation" means the period of limitation prescribed for any suit, appeal or application by the Schedule, and "prescribed period" means the period of limitation computed in accordance with the provisions of this Act.' Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the pr....
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....eneral law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks." 19. But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only "the period of limitation" and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of ....
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....it filed in support of captioned application is not only terse, but it is tepid and perfunctory. Only two sentences in the entire affidavit (filed in support of captioend application) talk about the reason for delay. These two sentences are contained in Paragraphs 12 and 13 of the affidavit filed in support of captioned application which read as follows: '12. It is submitted that the Award was passed on 10.6.2019 and received by us on 13.6.2019. Since the Award was for payment of a huge sum of Rs.1,81,21,170/-, the matter was placed before the General Manager, Southern Railway and after going through the entire pleadings and perusing the documents in support thereof and after careful scrutiny it was decided to challenge the Award. 13. Due to the time taken as stated in para 12 supra, the petition to set aside the Award could not be filed in time and as such time there is delay in filing the same which is neither wilful nor wanton and if the same is not condoned the petitioners will be put to irreparable loss and hardship. (underlining made by this Court to supply emphasis and highlight besides ease of reference) 33. There is no other averment in the affidavit regar....
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....3) of Section 34 of A and C Act. Southern Railways should first demonstrate that it was prevented by sufficient cause from presenting the OP within the prescribed three months for the proviso to kick in. This itself has not been done. Therefore, this Court has no hesitation in coming to the conclusion that on a demurrer, even on facts of the case, Southern Railways would not be entitled to the benefit to the proviso as there is no articulation about what prevented Southern Railways from filing the instant OP within 3 months, as merely saying General Manager had to take a decision by perusing the papers and therefore could not be presented within 3 months is least convincing. Further to be noted, this argument 'prevented by sufficient cause' expression is limited to being prevented by presenting it on 13.10.2019 (on and from 05.10.2019)and that does not pertain to three months limitation period. To be noted, after three months period in September of 2019, this Court was open and it was working till 04.10.2019. There is no explanation as to what prevented Southern Railway from presenting this OP during the period from 14.09.2019 to 04.10.2019. This Court has no hesitation in ....
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....under Section 34 should be disposed of expeditiously and in any event, within a period of one year from the date on which pre-application notice under sub-section (5) is served upon the other party. In other words, a time line of one year is prescribed for Section 34 applications also. In this regard, it is to be noted that in State of Bihar Vs. Bihar Rajya Bhumi Vikas Bank Samiti reported in (2018) 9 SCC 472, Hon'ble Supreme Court has held that pre-application notice under sub-section (5) is directory and not mandatory. Though Bhumi Vikas Bank case law is an authority for the broad proposition that a preapplication notice under sub-section (5) of Section 34 is directory and not mandatory, Hon'ble Supreme Court has made an observation in Bhumi Vikas Bank that every Court dealing with an application under Section 34 should make an endeavour to stick to the one year time line. This is contained in Paragraph 26 of Bhumi Vikas Bank case law, which reads as follows: '26. We are of the opinion that the view propounded by the High Courts of Bombay and Calcutta represents the correct state of the law. However, we may add that it shall be the endeavour of every court in which ....