TaxTMI 
TaxTMI 
2020 (10) TMI 1348
X X X X Extracts X X X X
X X X X Extracts X X X X
....on 34 of 'The Arbitration and Conciliation 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 disp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of receipt of award has to be excluded, learned Senior Counsel for Contractor fairly stated 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f India and Others reported in MANU/KA/1044/2019; (viii) State of Himachal Pradesh & Anr. Vs. M/s.Himachal Techno Engineers & Anr. Reported in (2010) 12 SCC 210; (ix) Obulapuram Mining Company 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ways given as a summation is as follows: a) There can be no disputation regarding Popular Construction case and Simplex Infrastructure case for the principle that delay beyond 30 days is not condonable, but other case 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Simple Infrastructure and Popular Construction case laws. 22. This takes us to the next point. There can be no disputation or disagreement with the principle that statutory expression of time periods can be in different units, namely months 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 (po....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l Clauses Act, 1897 defines a "month" as meaning a month reckoned according to the British calendar. 17.In Doddsv.Walker [(1981) 1 WLR 1027 : (1981) 2 All ER 609 (HL)] the House of Lords held that in calculating the period of a month or a specified number of months 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the term used is corresponding date. It is also be noted that the term used in sub-section (3) is 'elapsed'. It was held that Bibi Salma Khatoon Case is to the same effect as Jodds Vs. Walker principle. Be that as it may, in Himachal Techno Engineers case, the date of receipt of the award was 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 Dis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....am Urban Water Supply case as contained in Paragraph 10 of that case law has already been extracted and reproduced supra. This prescribed period principle is elucidated and articulated in Paragraphs 12 to 14 of that case law which read as follows: '12. Section 4 of the 1963 Act reads as follows: 4.Expiry 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) "....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general 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 per....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and consequent lockdown, the same applies only to periods of limitation and not to further periods upto which the delay can be condoned in exercise of discretion conferred by the statute. This is instructive and this Court respectfully applies the same to the case on hand. 31. This Court now reverts to examining whether Southern Railways has made out sufficient cause qua delay condonation plea. 32. The reason for delay mentioned in the affidavit 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....idavit in support of captioned application is bereft of particulars in this regard, this Court has no hesitation in coming to the conclusion that the reason for delay is least convincing. However, this is set out only to make it clear that it is not harsh on the facts of this case. It has also become necessary to mention this aspect of the matter owing to the argument predicated on the expression 'prevented by sufficient cause' occurring in provisio to sub-section (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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and that also has to be made within three months from the date of receipt of award or from the date on which a request under Section 33 (for correction/interpretation) is disposed of in cases where there is a request under Section 33. The proviso prescribes a cap for condonation of delay beyond this prescribed period of three months but the cap is 30 days. Be that as it may, what is of greater significance is sub-section (6) of Section 34 which makes it clear that an application 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 S....