FAO No.1557 of 2008 -1 - IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH FAO No.1557 of 2008 Date of Decision : 4.3.2009 Laxmi Rice and General Mills, Phillaur and others ..Appellants. Vs. Punjab State Civil Supplies Corpn. Ltd. (PUNSUP), Chandigarh and others. ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present : Mr.Vikas Behl and Mrs.Madhu P.Singh, Advocates for the appellants. Mr.C.S.Bakshi, Advocate for the respondents. RAKESH KUMAR JAIN, J.(ORAL) This appeal is directed against the order passed by District Judge, Jalandhar whereby Objections filed by the appellants under Section 34 of the Arbitration and Conciliation Act, 1996 (for short `the Act') was dismissed on the ground of limitation. Shorn of unnecessary details, the brief facts of the case are that there was some dispute between the parties who entered into an agreement on 15.11.1996, which was referred to the Arbitrator, who vide his award dated 19.8.2002 ordered recovery of Rs.2,92,351.82/- along with future interest @ 21% per annum to be paid by the appellants to the respondents. The appellants filed Objections under Section 34 of the Act on 2.12.2002 along with an application moved under Section 5 of the Limitation Act for FAO No.1557 of 2008 -2 - condonation of delay. The said application was replied by the respondents on 5.5.2003. The Objections were dismissed as time barred by the learned Court below. Before proceeding further in the case, it is necessary to understand the position of law in respect of period of limitation and the jurisdiction of the Court for the purpose of condoning the delay. Section 34(3) of the Act deals with the limitation, which is reproduced as under : “Section 34(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.” Sh.Vikas Behl, learned counsel for the appellants contends that in the application for condonation of delay, it was pleaded that arbitral award was never received by the appellant which came to his notice on 12.9.2002 when he went to the office of PUNSUP. The appellant had taken a photostat copy of the award and then filed the appeal on 2.12.2002. According to the appellants, the limitation has to be counted from the date of receipt of arbitral award. Although the arbitral award was not received by the appellant but even for the sake of arguments, if it is presumed that appellant had knowledge about the arbitral award even then there is a FAO No.1557 of 2008 -3 - provision for condonation of delay after the appeal is filed within one month after the expiry of three months. The learned counsel for the appellants contends that the appeal has been filed within the period of one month after the expiry of three months along with an application under Section 5 of the Limitation Act invoking the jurisdiction of the Court to condone the delay on the basis of cause assigned by the appellant. It is also contended that in the reply filed to the application it is nowhere mentioned by the respondents that on which date the arbitral award was dispatched to the appellant. The appellants had also pointed out from the finding of the District Judge that the application under Section 5 of Limitation Act has been dismissed on the ground that the same has not been pressed nor any evidence has been led by the Objector to condone the delay in filing of the Objections. It is also submitted that learned Court below has erred in observing that although no issue of limitation was framed even then the same was legal issue and can also be taken into consideration because Objection petition has to be filed within the period of limitation. To buttress his argument further, learned counsel for the appellants contends that the observations of the Court below are palpably erroneous because there is no statement on record which could suggest that the application under Section 5 of Limitation Act was not pressed and the issue of limitation, which is held to be a legal issue by the learned Court below, is wrong because issue of limitation is always a mixed question of law and fact. To controvert the arguments raised by the counsel for the appellants, Sh.C.S.Bakshi, learned counsel for the respondents contends that there is a delay of 2 ½ months in filing the Objections from the date of FAO No.1557 of 2008 -4 - passing of the award, therefore, learned Court below has rightly dismissed the Objections especially when no issue was got struck by the appellant on the point of limitation. Learned counsel for the respondents also contended that the appellant wrongly stated in the application that he had visited PUNSUP but in fact he had never visited PUNSUP for enquiring about the award. After hearing the counsel for the parties, I am of the view that the present appeal deserves to be allowed. Reading of Section 34(3) of the Act shows that an application for setting aside the award may be made within three months from the date of receipt of the arbitral award, meaning thereby personal knowledge of the Objector of the award of the Arbitrator is not sufficient. The limitation would start from the date when it is proved on record by leading cogent evidence the date on which the arbitral award has been received by the Objector. In the present case, it is the case of the appellant that arbitral award has not been served upon him and there is nothing mentioned in the reply by the respondents as to on which date the same was dispatched on his address by the office. Thus, it is a pure question of fact of dispatch and receipt of arbitral award and the visit of the appellant to the office of PUNSUP which could have been adjudicated by the Court below only after framing issue in this regard and allowing the parties to lead their respective evidence. It is worthwhile to mention that observation of the Court below that issue of limitation is legal is basically erroneous and unsustainable in law. Once the question of limitation is raised and sufficient cause shown for condonation of delay, it is incumbent upon the Court to frame an issue and FAO No.1557 of 2008 -5 - allow the party to lead their evidence and then decide question of limitation so that a meritorious matter cannot be thrown at the very threshold. My view is supported by a judgment of this Court in the case of Pawan Kumar Vs. Surjit Kaur and others 2008(1) RCR (Civil) 60 which says that primary job of the Court is to do justice which decides the substantive rights of the litigating parties. Similarly in the case of Collector, Land Acquisition, Anantnag and another Vs. Mst.Katiji and others AIR 1987 SC 1353. The Supreme Court has laid down the following parameters. “1.Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. “Every day's delay must be explained” does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. 5.There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” FAO No.1557 of 2008 -6 - In view of the above discussion, the present appeal is allowed and the impugned order is hereby set aside. The parties are directed to appear before the learned Court below on 28.4.2009. (Rakesh Kumar Jain) 4.3.2009 Judge Meenu