FAO No.128 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.128 of 2009 (O&M) DATE OF DECISION:05.10.2010 **** M/s Bahadaur Rice Mills . . . . Appellant Vs. Punjab State Civil Supplies Corporation Ltd. and another . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.G.S. Dhuriwala, Advocate for the appellant. Mr.C.S. Bakshi, Advocate for the respondents. **** RAKESH KUMAR JAIN J. (ORAL) CM No.539-CII-2009 and FAO No.128 of 2009 This is an application under Section 5 of the Limitation Act, 1963 for condonation of delay of 1497 days in filing of the appeal. Notice in the application was issued to which a reply has been filed. In order to constitute a sufficient ground for condonation of delay, reason assigned in the application is that after the decision of the learned District Judge, Chandigarh on the application filed under Section 34 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act’) on 06.01.2004, the applicant/appellant had filed a review application on 09.02.2004 in the said Court which was dismissed on 09.02.2008 and then the appeal was filed in this Court on 12.05.2008 against the impugned order dated 06.1.2004. It is submitted that the period consumed in pursuing the review application has to be excluded. In reply, learned counsel for the respondents has submitted that neither there is provision of review in the Act nor provisions of the Code of Civil Procedure, 1908 (for short ‘CPC’) are applicable in terms of FAO No.128 of 2009 (O&M) -2- Section 19(1) of the Act. Therefore, even if the time has been spent by the appellant in review that cannot be excluded. Besides this, learned counsel for the respondents has submitted on merits that the appellant is now raising the plea of excepted matter before this Court which was never raised either before the Arbitrator or in the objection filed under Section 34 of the Act. Therefore, it is submitted that the objection regarding jurisdiction of the Arbitrator was waived off in terms of Section 4 of the Act as the Arbitrator was competent to decide its own jurisdiction under Section 16 of the Act if the question has been raised before him. I have heard both the learned counsel for the parties and perused the record. Insofar as the application for condonation of delay is concerned, admittedly, the Act is silent with regard to power of the review, as review is a creation of Statute and is not implied, secondly review is provided under the CPC which is not applicable under Section 19(1)(2) of the Act and the appellant could not have taken assistance of the general Civil law. In view thereof, the period which has been spent by him in pursuing his review petition cannot be excluded and as such delay of 1497 days cannot be condoned. Even otherwise, there is no merit in the present appeal because the question of jurisdiction was neither raised by the appellant before the Arbitrator, who has to decide the same under Section 16 of the Act nor it was raised in objection filed under Section 34 of the Act. Therefore, it cannot be taken for the first time either in review or before this Court. In view thereof, I do not find any merit in the application, hence, the same is hereby dismissed. Consequently appeal is also dismissed. (RAKESH KUMAR JAIN) OCTOBER 05, 2010 JUDGE Vivek