IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 6768 of 2010(O&M) Date of Decision: August 23, 2011. Punjab State Civil Supplies Corporation Limited and another. ...... APPELLANT (s) Versus M/s Pummi Rice and General Mills and others. ...... RESPONDENT (s) CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. J.S.Gill, Advocate for the appellant. ***** RAM CHAND GUPTA, J.(Oral) The present appeal has been filed against order dated 20.10.2004 passed by learned Additional District Judge, Chandigarh vide which application filed under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’) was dismissed being time barred. The appeal has not been filed within prescribed period of limitation. There was one day delay in filing and 2360 days in refiling the present appeal i.e. total 2361 days in filing the proper appeal before this FAO 6768 of 2010 Court. The application for condonation of delay of 2360 days in refiling the appeal is not even accompanied by affidavit. The ground taken in the application for condonation of delay is that the clerk of the counsel has placed this file in some other brief. However, very vague plea has been taken. The name of the clerk has not been mentioned. It has also not been mentioned as to when the file was searched and how the same was searched. In a recent judgment rendered by Hon’ble Apex Court in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and another, 2010(2) RCR(Civil) 284, law on the point of condonation of delay in filing the appeal has been summed up as under:- “8. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach 2 FAO 6768 of 2010 where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N.Balakrishnan v. M. Krishnamurthy 1999(2)RCR (Civil) 578: (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil 2001(3) RCR(Civil) 831: (2001) 9 SCC 106. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Spl. Land Acquisition Officer 1988(1) RRR 555: (1988) 2 SCC 142, State of Haryana v. Chandra Mani 1996(2) RRR 82: (1996) 3 SCC 132, State of U.P. v. Harish Chandra 1996(2) SCT 712: (1996) 9 SCC 309, State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635, State of Nagaland v. Lipok Ao 200;5:(2) RCR Criminal 414: 2005(2): RCR (Civil) 375: 2005 (2) Apex Criminal 75: (2005) 3 SCC 752, and State (NCT of Delhi) v. Ahmed Jaan 2008(4) R.C.R. (Criminal) 119: 2008(4) RCR(Civil) 126: 2008(4) SCT 25: 2008 (2) RCR(Rent) 234: 2008(5) RAJ 214: (2008) 14 SCC 582.” Hence, in view of this legal proposition, court is bestowed with power to condone the delay in filing the appeal, if sufficient cause is shown for not filing the same within the stipulated period. No straight jacket formula can be laid down in dealing with the application for condonation of delay. However, Hon’ble Apex Court in various judgments held that liberal 3 FAO 6768 of 2010 approach should be adopted by the Courts in condoning the delay of short duration and a stricter approach where the delay is inordinate. Moreover, in this case on merit as well, learned Additional District Judge, Chandigarh has dismissed the objection petition filed by appellant as the same was not filed within the period of limitation. It has also been rightly observed that application under Section 5 of the Limitation Act for condonation of delay is not maintainable if objection under Section 34 of the Act has not been filed within limitation as per the said Section. Section 34 of the Act reads as under:- “34. Application for setting aside arbitral award. (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if- (a) the party making the application furnishes proof that- (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which 4 FAO 6768 of 2010 the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Court finds that- (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. Explanation.-Without prejudice to the generality of sub-clause (ii), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81. (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. (4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award. The Act provides time of three months to be extended by another thirty days at the most. However, the present application was filed after seven months of the passing of the award. Learned Additional District Judge, Chandigarh has rightly placed reliance upon Union of India v. M/s Popular 5 FAO 6768 of 2010 Construction Co., AIR 2001 SC 4010(1) wherein it has been observed as under:- “12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are ‘but not thereafter’ used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29 (2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase ‘but not thereafter’ wholly otiose. No principle of interpretation would justify such a result.” Hence, in view of these facts, no case for condonation of inordinate delay of 2361 days in filing and refiling the present appeal is made out. Hence, the present application for condonation of delay in filing the appeal is, hereby, dismissed. FAO No.6768 of 2010 As a consequence thereof, the present FAO is also dismissed as having not been filed within the prescribed period of limitation. ( RAM CHAND GUPTA ) August 23, 2011. JUDGE 'om’ 6