Union Of India V/S Ogilvy Mather Ltd &Anr

 Union of India HIGH COURT OF DELHI : NEW DELHI IA No. 6734 2008 in OMP No.291 2008 Judgment reserved on: 12th January 2009 Judgment decided on : 13th March 2009 Through : Mr. Parag Tripathi Addl. Solicitor General with Ms. Arti Gupta Ms. Prem Lata Bansal and Mr. Sanjeev Rajpal Advocates Ogilvy & Mather Ltd. & Anr. Through: Mr. Vinoo Bhagat with Mr. Amiet Andlay Advs. Respondents HON BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may be allowed to see the judgment 2. To be referred to Reporter or not 3. Whether the judgment should be reported in the Digest MANMOHAN SINGH J. 1. By this order I shall dispose of application under Section 5 of the Limitation Act read with Section 151CPC being I.A. No. 6734 08 for condonation of delay in re filing of the petition under Section 34 of the Arbitration and Conciliation Act 1996 for setting aside the award dated 2nd June 2007 passed by the learned arbitrator. It is contended by the applicant that the impugned award was passed on 2nd June 2007 by the learned sole Arbitrator in Arbitration Application No. 241 03 wherein the learned Arbitrator passed an award of Rs. 52 05 367 with interest @ 12% p.a. thereon from 2nd June 2007 OMP No.291 2008 till date of payment as per terms of the award. 3. The petition under Section 34 of the Act was initially filed in the court on 9th August 2007 vide diary No. 103209 which is within the time period prescribed under the Act. The Dealing Assistant on 13th August 2007 raised certain objections: a) Caveat report be obtained b) Memo of Party be filed and c) Urgent application not signed 4. The objections were removed and it was re filed again on 31st October 2007. It was mentioned that the urgent petition was not being filed and the petition may be listed on ordinary basis. However the registry again raised the objection that the application for condonation of delay in re filing be filed giving the details of the delay in filing of the petition. The petition was again refiled only in the second week of April 2008 and again an objection was raised by the registry that the caveat report had not been taken and the details of the delay in re filing of the petition were not correct. On 23rd May 2008 the registry again raised the objections that the objections already raised have not been removed and on 26th May 2008 the petition was re filed again and came up before court on 28th May 2008 whereby notice was issued in I.A. No.6734 08 under Section 5 of the Limitation Act for condonation of delay. In the instant application under Section 5 of the Limitation Act condonation of delay has been sought in re filing of original miscellaneous petition filed against the award dated 2nd June 2007 in respect of 258 days delay beyond the period of 90 days on the ground OMP No.291 2008 that the senior Standing counsel looking after the matter had to undergo surgery followed by prolonged recovery period seeking constant attention and the file was also mixed up with other files in his office and the said delay which occurred in re filing is bonafide and unintentional and the same be condoned. In reply to the application by the respondent it is stated that the application under Section 5 of the Limitation Act is not maintainable and the delay of more than 30 days after the expiry of the prescribed period of 90 days cannot be condoned. It is also contended that Section 5 of the Limitation Act does not apply to the petition under Section 34 of the Act. The application lacks in detail as it does not give the dates of surgery undergone by the counsel and his recovery from it nor it is explained why the alternative counsel was not engaged earlier as was done later and mixing of files is not a ground for condonation of delay. The delay must be explained day by day. It is alleged that it is irrelevant whether the delay is intentional or unintentional as the court does not have the power to extend the time limit prescribed by section 34 of the Act and the delay under any circumstances cannot be It is argued by learned counsel for the respondent that Section 34 of the Arbitration & Conciliation Act does not refer to different kinds of delay some that can and others that cannot be condoned beyond the time limit prescribed in it. Even one day‟s delay beyond 30 days‟ delay condonable under the said Section) cannot be condoned. Decisions of the Supreme Court for a liberal approach to OMP No.291 2008 condoning the delay do not apply to matters governed by the special provisions of Section 34 of the Act. In rejoinder to the reply it is stated by the petitioner that only when the Execution petition No. 6 08 was listed and came up for hearing before the court the petitioner enquired about the application filed by him under Section 34 of the Act for setting aside of the award. The matter was re filed after removing the objections along with the application praying for condonation of delay. However by this process the delay of 258 days occurred which was not intentional but was caused due to circumstances beyond the control of the petitioner and his It is again stated that the petitioner has filed the application under section 34 within the limitation period prescribed under the Act. The delay was only with respect to re filing of the said application and therefore liberal approach may be taken by the Court. I have heard learned counsel for the parties and also gone through the record of the case. The case in hand is considered by me while looking into the two propositions of law which are as under: a) Exclusion of Section 5 of Limitation Act from the purview of Section 34 of the Arbitration and Conciliation Act 1996. b) Exclusion of Section 5 of Limitation Act while considering the case of re filing. At the outset it would be appropriate to consider the law in relation to Section 34 of the Arbitration and Conciliation Act 1996 OMP No.291 2008 which is as under: “34. Application for setting aside arbitral award. xxxxx 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 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.” A bare reading of Section 34(3) with the proviso makes it abundantly clear that the application for setting aside the award on the grounds mentioned in Sub Section of Section 34 will have to be made within three months. The period can further be extended on sufficient cause being shown by another period of 30 days but not thereafter. It means that as far as application for setting aside the award is concerned the period of limitation prescribed is three months which can be extended by another period of 30 days on sufficient cause being shown to the satisfaction of the Court. In the present case the award was passed by the learned arbitrator on 02.06.2007 and the present petition under section 34 of the Act for setting aside of the part of the award was filed on 09.08.2007. As per the provisions of Section 34(3) of the Arbitration & Conciliation Act 1996 an application for setting aside may not be made after 3 months from the date on which the party making that application had received the arbitral award. Thus the application under Section 34 of the Act had been filed by the petitioner within the prescribed time. OMP No.291 2008 14. Learned counsel for the respondent relied upon the case of Union of India v. Popular Construction8 SCC 470 to contend that Section 5 of the Limitation Act does not apply to petitions under Section 34 of the Arbitration & Conciliation Act 1996. Under the Act the Court has power to condone delay of only 30 days. Relevant paras are reproduced herein below: “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 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. Apart from the language express exclusion may 13. follow from the scheme and object of the special or local law. Even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference it would nonetheless be open to the Court to examine whether and to what extend the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation". 14. Here the history and scheme of the 1996 Act support the conclusion that the time limit prescribed under Section 34 to challenge an award is absolute and unextendible by court under Section 5 of the Limitation Act. The Arbitration and Conciliation Bill 1995 which preceded the 1996 Act stated as one of its main objectives the need “to minimise the supervisory role of courts in the arbitral process”. This objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms: “5. Extent of anything contained in any other law for the time being in force in matters governed by this Part no judicial authority shall intervene except where so provided in this Part.” 15. The Part referred to in Section 5 is Part I of the 1996 Act which deals with domestic arbitrations. Section 34 is contained in Part I and is therefore subject to the sweep of the prohibition contained in Section 5 of the 1996 Act. OMP No.291 2008 16. Furthermore section 34(1) itself provides that 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. Sub Section 2 relates to grounds for setting aside an award and is not relevant for our purposes. But an application field beyond the period mentioned in Section 34 sub sectionwold not be an application "in accordance with" that sub section. Consequently by virtue of Section 34(1) recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that "where the time for making an application to set aside the arbitral award under Section 34 has expired...the award shall be enforced and the Code of Civil Procedure 1908 in the same manner as if it were a decree of a court". This is a significant departure form the provisions of the Arbitration Act 1940. Under the 1940 Act after the time to set aside the award expired the court was required to "proceed to pronounce judgment according to the award and upon the judgment so pronounced a decree shall follow". Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable without any further act of the Court. If there were any residual doubt on the interpretation of the language used in Section 34 the scheme of the 1996 Act would resolve the issue in favour of curtailment of the Court s powers by the exclusion of the operation of Section 5 of the Limitation Act.” He also relied upon the case of Damodaran Pillai v. South Indian Bank Ltd. 7 SCC 300 wherein the Supreme Court held as under: “It is also trite that the civil court in absence of any express power cannot condone the delay. For the purpose of condonation of delay in absence of applicability of the provisions of Section 5 of the Limitation Act the court cannot invoke its inherent power. …. …. The principles underlying the provisions prescribing limitation are based on public policy aiming at justice the principles of repose and peace and intended to induce claimants to be prompt in claiming relief.” There can be no doubt in respect of the legal proposition that the term „sufficient cause‟ in proviso to sub section to section 34 OMP No.291 2008 deserves to be liberally construed so as to advance substantial justice. The question of condonation of delay in re filing of an application has to be considered from a different angle and viewpoint as compared to consideration of condonation of delay in initial filing. The delay in re filing is not subject to the rigorous tests which are usually applied in excusing the delay in a petition filed under Section 5 of the Limitation Act 1963. The Apex Court while interpreting Section 34 and the objections therein has held in the case of Popular Construction case supra) that the limitation prescribed under the provision of Section 34 is of sacrosanct nature and the expression used in Section 34 is “not thereafter”. It is clearly laid down that the delay in filing the objection u S 34 of the Arbitration and Conciliation Act 1996 cannot exceed the limit of three months from the date of passing of award and one month afterwards and not thereafter. Thus the law in relation to objections against the award is clear to the extent that the provisions of Section 5 of Limitation Act will not be invoked while considering the delay in filing the objections u S 34 of the Act. Recently the Hon‟ble Apex Court had occasion to discuss the provisions of Section 5 of Limitation Act and its interplay with the provisions of Section 34 of the Arbitration and Conciliation Act 1996 in the case of Consolidated Engg. V. Principal Secy reported in 2008 Vol 7 SCC 169 wherein the Apex Court has taken the view that the provisions of Section 5 of Limitation Act are not applicable with OMP No.291 2008 respect to the delay in filing the objections and the said Section 5 of the Limitation Act is not applicable because of the provisions of Section 29 of the Limitation Act which clarifies that when there is a special law and a general law prescribing the limitation the provisions of special law will prevail. The Apex Court has discussed this point in great detail and has come to the conclusion that although the provisions of Section 5 of Limitation Act will not be applicable while adjudicating upon the delay in filing the objections that will not take away the applicability of entire Limitation Act for considering the delay in filing the objections u S 34 of the Limitation Act. In other words any other circumstance which is not covered u S 5 of the Limitation Act but covered in other provisions of the Limitation Act can be looked into by the Court while adjudicating upon the delay in filing the objections and while holding this view the Apex Court was of the opinion that although the provisions of Section 5 are not applicable but the provisions of Section 14 of the Limitation Act will be applicable. The relevant paragraphs of the judgment are reproduced as under: “10. ….When any special statute prescribes certain period of limitation as well as provision for extension upto specified time limit on sufficient cause being shown then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded. As the intention of the legislature in enacting Sub sectionof Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter this Court is of the opinion that the provisions OMP No.291 2008 of Section 5 of the Limitation Act would not be applicable because the applicability of Section 5 of the Limitation Act stands excluded because of the provisions of Section 29(2) of the Limitation Act. 11. However merely because it is held that Section 5 of the Limitation Act is not applicable to an application filed under Section 34 of the Act for setting aside an award one need not conclude that provisions of Section 14 of the Limitation Act would also not be applicable to an application submitted under Section 34 of the Act of As noticed earlier in the Act of 1996 there is no express provision excluding application of the provisions of Section 14 of the Limitation Act to an application filed under Section 34 of the Act for challenging an award. Further there is fundamenetal distinction between the discretion to be exercised under Section 5 of the Limitation Act and exclusion of the time provided in Section 14 of the said Act. The power to excuse delay and grant an extension of time under Section 5 is discretionary whereas under Section 14 exclusion of time is mandatory if the requisite conditions are satisfied. Section 5 is broader in its sweep than Section 14 in the sense that a number of widely different reasons can be advanced and established to show that there was sufficient cause in not filing the appeal or the application within time. The ingredients in respect of Section 5 and 14 are different. The effect of Section 14 is that in order to ascertain the date of expiration of the „prescribed period‟ the days excluded from operating by way of limitation have to be added to what is primarily the period of limitation prescribed. The above discussion makes it clear that although the provisions of Section 5 of the Limitation Act are not applicable while OMP No.291 2008 adjudicating upon the delay in filing the objections u S 34 of the Act however that will not debar the Court from looking into any other circumstance which may be incidental in nature which may not be covered u S 5 of the Limitation Act. In the case in hand the second issue which requires consideration is as to whether the provisions of Section 5 of Limitation Act are applicable while considering the delay in re filing the petition objections documents. In the case of Smt. Parvati & Ors. v. Shri Anand Parkash alias Nand Lal AIR 1987 Delhi 90 this Court has held that Section 5 of the Limitation Act would not be attracted to a case wherein appeal and objections have been initially filed within the prescribed period of limitation and the same does not suffer from any infirmity of vital nature is a delay in refiling appeal objections after removing the defects. The relevant portion of the judgment is reproduced as under: “Section 5 of the Limitation Act would not be attracted to a case where an appeal objection has been initially filed within the prescribed of limitation and the same does not suffer from any infirmity of a vital nature but there is delay in re filing the appeal after removing the defects as pointed out by the Deputy Registrar. The rigours of law of limitation regarding condonation of delay would not apply to such a situation and the court has simply to satisfy itself that there is a plausible explanation for the delay. But it cannot be said that there is no sanction behind R 5(1) of Punjab High Court Rules and Orders memorandum of appeal or impose any other appropriate penalty if the appellant behaves in a totally negligent reckless or erratic manner in not re filing the appeal after removing the defects within a reasonable time ” the Court will be powerless This leads me to consider the case in hand wherein the OMP No.291 2008 objections were filed within the prescribed period of time and the same did not suffer from any discrepancy infirmity of vital nature. Therefore the provisions of Section 5 of the Limitation Act will not be applicable to the objections which were initially filed within the prescribed time but later on re filed after removing the defects beyond the prescribed time. Precisely it means that while seeing the condition of delay in re filing the provisions of Section 5 of Limitation Act and rigours of law of Limitation will not be applicable. Coming back to the earlier discussion of Arbitration Act and while seeing the same in consonance with the case in hand it can easily be gauged that the provisions of Section 5 of Limitation Act are neither applicable while adjudicating the condonation of delay in filing the objections u S 34 nor in the case wherein they were filed within the prescribed time but refiled at the later date. Following the judgment of the Apex Court in the case of Consolidated Engg.’s casewhich says that mere inapplicability of Section 5 of Limitation Act will not debar the Court from looking into any other circumstance or extra ordinary circumstance wherein the delay can be condoned. In the case of re filing the provisions of Section 5 of the Limitation Act are not applicable therefore the case of re filing will not be covered under the provisions of Section 5 of Limitation Act and in such case the rigours of Section 5 of Limitation Act and the explanation therein shall not be of any assistance while condoning the delay and the delay will be looked into considering the circumstances in hand. It however does not make the Court powerless to reject the petition of a person who is OMP No.291 2008 totally negligent reckless or erratic but surely the said case of re filing will be excluded from Section 5 of Limitation Act. When the said case of re filing is excluded from Section 5 of Limitation Act I am of the view that the Court can look into the facts and circumstances of each case and condone the delay as it will not be covered by Section 5 of Limitation Act but the court cannot look into any circumstances which are covered under Section 5 of Limitation Act while seeing the delay in filing the objections. The case of re filing is clearly not covered by Section 5 of Limitation Act. In the case of S.R Kulkarni v. Birla VXL Limited 1998 V AD634 following observations are made in para 8: “8. Notwithstanding which of the aforesaid Rules are applicable the question of condonation of delay in re filing of an application has to be considered from a different angle and viewpoint as compared consideration of condonation of delay in initial filing. The delay in re filing is not subject to the rigorous tests which are usually applied in excusing the delay in a petition filed under Section 5 of the Limitation Act.......... On the facts of the case the effect of negligence or „casual approach‟ which would be appropriate term to be used here of the counsel on his client does not deserve to be so rigorous so as to deny condition of delay in re filing the application. The casual approach of the counsel is evident as no timely efforts were made firstly to find out after filing application on 19th August 1995 as to whether the Registry had raised any objection or not. Secondly despite order of the Joint Registrar dated 9th January 1996 the objection was removed only on 4th March 1996 i.e. after the date which the Joint Registrar had fixed for the application being posted for hearing OMP No.291 2008 before the Court............ When there is negligence or casual approach in a matter like this in re filing of an application though the Court may not be powerless to reject an application seeking condonation and may decline to condone the delay but at the same time passing of any other appropriate order imposition of cost can be considered by the court to compensate the other party from delay which may occur on account of re filing of the application.” The discussion above makes it clear that the court can look into any circumstance other than the circumstances falling under section 5 of the Limitation Act to condone the delay and certainly the case of re filing of the objections is not falling under section 5 and can be looked into by the court. The courts have time and again stated that the question of re filing of the objections is not subject to strict rigours of the law of limitation. However the courts have also reminded themselves that they are not powerless to condone the delay in the facts and circumstances of the case merely because it is a case of the re filing of the documents. Learned counsel for the respondent has argued on the point of condonation of delay in re filing of the petition under Section 34 of the Arbitration and Conciliation Act 1996 and stressed that the delay in re filing of the petition be not allowed because of the following reasons: a) That there is no whisper in the application filed by the petitioner as to why the two other Advocates on record did not cure the defects for 258 days and it shows that it is a case of gross negligence on the part of the petitioner. OMP No.291 2008 b) That the main reason given the application for condonation is delay is the surgery undergone by Senior Standing Counsel but the Vakalatnama on behalf of the petitioner has been filed and re filed by other two advocates also. The illness of the counsel other than the one handling the case cannot be an excuse for condonation of delay and no ground in this regard has been stated in the application for condonation of delay. c) That the petitioner has also failed to give any relevant dates of the illness of counsel and even after the surgery was conducted on him the dates of his illness and resumption of work subsequently are not given in the application. d) That the petition under Section 34 of the Act was filed initially on 9th August 2007 and returned under objections on 13th August 2007. The first re filing of the petition was on 31st October 2007 i.e. 80 days after it was returned as defective. Under Sub Rule of Rule 5 of Chapter I of Delhi High Court Rules and Orders the first re filing after more than 30 days in the aggregate is to be construed as a case of fresh institution. In view of sub rule the petitioner‟s application was barred by limitation. 29. In reply to sub ruleof Rule 5 Chapter I of the Delhi High Court Rules and Orders learned senior counsel has made his submission that the said Chapter I and Rule 5 is applicable only regarding filing of the appeal against the order or judgment and not the petition filed on the OMP No.291 2008 Original Side. Learned counsel for the petitioner has relied on Rule 2 of Chapter IV of Delhi High Court Rules which read as under: “ If on scrutiny the document is found to be defective the said document shall after notice to the party filing the same be placed before the Registrar. The Registrar may for sufficient cause return the said document for rectification or amendment to the party filing the same and for this purpose may allow to the party concerned such reasonable time as he may consider 30. These rules have also been discussed in the case of S.R.Kulkarni‟s case wherein the Division Bench has observed that the question of condonation of delay in re filing of the application has to be considered from a different angle and view point as compared to consideration of condonation of delay initial filing and notwithstanding which of the aforesaid Rules are applicable. It needs no mention that the ground of illness of the Senior Standing counsel stated in the application for condonation of delay seems to be good reason for the Court for condoning the delay. However it cannot lose sight of the fact that the application under Section 34 of the Arbitration & Conciliation Act 1996 was filed on 9th August 2007. The dealing assistant of the Registry had first time raised the objection on 13th August 2007. The details of the said objections are mentioned in para 3 of the judgment. The said objections are stated to have been removed on 30th October 2007. But it appears from the record that all the objections raised by the Registry were not removed and the application under Section 34 was again returned. The petitioner this time re filed the petition on 10th April 2008 i.e. after more than five OMP No.291 2008 months. On the same date objections were raised again for the third time by the dealing assistant of the Registry stating that objections were not removed by the petitioner. The petition was again re filed on 25th April 2008. On re filing the petition again on 23rd May 2008 the dealing assistant of the Registry fourth time returned the petition stating that objections were not removed. The said process of removing the objections ended ultimately on 28th May 2008 when the petition was re filed. The sequence of events in re filing of the petition several times and nature of the objections raised by the registry reveals that the objections were not very vital in character and were merely relating to “Caveat report not obtained Memo of party not signed and Urgent application not signed”. The said objections being merely minor in nature and non vital could have been removed by the other two counsel without any instructions from the counsel looking after the matter especially since they were already holding vakalatnama in their favour. The ground of condonation of delay has to be looked into in the backdrop of the fact that this court is dealing with the objections for challenge of Award under section 34 of the Arbitration and Conciliation Act 1996. This Act is a special law consolidating and amending the law relating to arbitration and matters connected therewith or incidental thereto. The Act does not prescribe the period of limitation for various proceedings under that Act except where it intends to prescribe a period different from what is prescribed in the Limitation Act. The interference of the court in the arbitral award has been limited by prescribing the period of limitation under Section 34 of the Act. OMP No.291 2008 33. The objections for challenging the award are a valuable right of the parties and if they are not filed within time it takes away the said right to the benefit of the other. It is pertinent to mention here that although the Court can look into the issue of re filing for condoning the delay and is not powerless under those circumstances to reject an application seeking condonation and may decline to condone the delay as held by Division Bench of this Court in S.R. Kulkarni’s case (supra). I am of the view that in the present case the delay of 258 days is exorbitant and the said delay cannot be condoned as it would amount to delaying the very object and purpose of prescribing the limitation for challenging the Award under section 34 of the Act and frustrating the scheme of the Act. The circumstances of condonation of delay in re filing therein have to be in consonance with the aims and objects of the Act. The period of 258 days delay is too excessive to be condoned on the ground pleaded by the petitioner. The re filing circumstance gives the court power to condone the delay in special circumstances but the said aspect cannot give any party a leverage period of limitation for filing the objections against the award. The court in the issue of re filing also looked into the question of sufficient cause and good grounds for condoning the delay. The illness of the counsel can be a good ground to condone reasonable delay but cannot be overstretched to condone the excessive delay of 258 days especially where the defects in objections are not vital in character and can be easily handled by the associate counsel having vakalatnama in their favour. I find no merit in the contention of the petitioner. The OMP No.291 2008 application IA No.6734 2008 under Section 5 of Limitation Act is In view of the order passed in IA No.6734 2008 this OMP No.291 2008 is also dismissed being time barred. MANMOHAN SINGH J dismissed. OMP No. 291 2008 No costs. March 13 2009 OMP No.291 2008 

Summary: “The courts are not powerless to condone the delay in the facts and circumstances of the case merely because it is a case of the re-filing of the documents” It is contended by the applicant that the impugned award was passed on 2nd June, 2007 by the learned sole Arbitrator in Arbitration Application No. 241/03 wherein the learned Arbitrator passed an award of Rs. 52,05,367/- with interest @ 12% p.a. thereon from 2nd June, 2007 till date of payment as per terms of the award.The petition under Section 34 of the Act was initially filed in the court on 9th August, 2007 vide diary No. 103209 which is within the time period prescribed under the Act. The Dealing Assistant on 13 th August, 2007 raised certain objections that (a) Caveat report be obtained; (b) Memo of Party be filed ; and (c) Urgent application not signed.The objections were removed and it was re-filed again on 31st October, 2007. It was mentioned that the urgent petition was not being filed and the petition may be listed on ordinary basis. However, the registry again raised the objection that the application for condonation of delay in re-filing be filed giving the details of the delay in filing of the petition.The petition was again refiled only in the second week of April, 2008 and again an objection was raised by the registry that the caveat report had not been taken and the details of the delay in re-filing of the petition were not correct.On 23rd May, 2008 the registry again raised the objections that the objections already raised have not been removed and on 26th May, 2008 the petition was re-filed again and came up before court on 28th May, 2008, whereby notice was issued in I.A. No.6734/08 under Section 5 of the Limitation Act for condonation of delay.ISSUE BEFORE THE COURT:Whether the provisions of Section 5 of Limitation Act are applicable while considering the delay in re-filing the petition/objections/documents?Whether the caveat report had not been taken and the details of the delay in re-filing of the petition were not correct?RATIO OF THE COURT:The court stated that the application under Section 5 of the Limitation Act is not maintainable and the delay of more than 30 days after the expiry of the prescribed period of 90 days cannot be condoned. It is also contended that Section 5 of the Limitation Act does not apply to the petition under Section 34 of the Act. The application lacks in detail as it does not give the dates of surgery undergone by the counsel and his recovery from it nor it is explained why the alternative counsel was not engaged earlier as was done later and mixing of files is not a ground for condonation of delay. The delay must be explained day-by-day. It is alleged that it is irrelevant whether the delay is intentional or unintentional as the court does not have the power to extend the time limit prescribed by section 34 of the Act and the delay under any circumstances cannot be condoned.The court refered to the section 34 of arbitration and conciliation act, 1996 that  Application for setting aside arbitral award. xxxxx (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 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.” The court stated that the award was passed by the learned arbitrator on 02.06.2007 and the present petition under section 34 of the Act for setting aside of the part of the award was filed on 09.08.2007. As per the provisions of Section 34(3) of the Arbitration &amp; Conciliation Act, 1996, an application for setting aside may not be made after 3 months from the date on which the party making that application had received the arbitral award. Thus the application under Section 34 of the Act had been filed by the petitioner within the prescribed time.The court observed that in the Act of 1996, there is no express provision excluding application of the provisions of Section 14 of the Limitation Act to an application filed under Section 34 of the Act for challenging an award. Further, there is fundamental distinction between the discretion to be exercised under Section 5 of the Limitation Act and exclusion of the time provided in Section 14 of the said Act. The power to excuse delay and grant an extension of time under Section 5 is discretionary whereas under Section 14, exclusion of time is mandatory, if the requisite conditions are satisfied. Section 5 is broader in its sweep than Section 14 in the sense that a number of widely different reasons can be advanced and established to show that there was sufficient cause in not filing the appeal or the application within time. The ingredients in respect of Section 5 and 14 are different. The effect of Section 14 is that in order to ascertain the date of expiration of the prescribed period, the days excluded from operating by way of limitation have to be added to what is primarilythe period of limitation prescribed.The court contended that the provisions of Section 5 of Limitation Act are neither applicable while adjudicating the condonation of delay in filing the objections u/S 34 nor in the case wherein they were filed within the prescribed time but refiled at the later date. Following the judgment of the Apex Court in the case of Consolidated Engg.’s case (supra) which says that mere inapplicability of Section 5 of Limitation Act will not debar the Court from looking into any other circumstance or extra ordinary circumstance wherein the delay can be condoned. In the case of re-filing, the provisions of Section 5 of the Limitation Act, are not applicable, therefore, the case of re-filing will not be covered under the provisions of Section 5 ofLimitation Act and in such case, the rigours of Section 5 of Limitation Act and the explanation therein shall not be of any assistance while condoning the delay and the delay will be looked into considering the circumstances in hand. It, however, does not make the Court powerless to reject the petition of a person who is totally negligent, reckless or erratic, but surely the said case of re-filing will be excluded from Section 5 of Limitation Act.The court observed that when the said case of re-filing is excluded from Section 5 of Limitation Act, that the Court can look into the facts and circumstances of each case and condone the delay as it will not be covered by Section 5 of Limitation Act but the court cannot look into any circumstances which are covered under Section 5 of Limitation Act while seeing the delay in filing the objections. The case of re-filing is clearly not covered by Section 5 of Limitation Act.The ground of condonation of delay has to be looked into in the backdrop of the fact that this court is dealing with the objections for challenge of Award under section 34 of the Arbitration and Conciliation Act, 1996. This Act is a special law, consolidating and amending the law relating to arbitration and matters connected therewith or incidental thereto. The Act does not prescribe the period of limitation, for various proceedings under that Act, except where it intends to prescribe a period different from what is prescribed in the Limitation Act. The interference of the court in the arbitral award has been limited by prescribing the period of limitation under Section 34 of the Act.The objections for challenging the award are a valuable right of the parties and if they are not filed within time, it takes away the said right to the benefit of the other. It is pertinent to mention here that although the Court can look into the issue of re-filing for condoning the delay and is not powerless under those circumstances to reject an application seeking condonation and may decline to condone the delay as held by Division Bench of this Court in S.R. Kulkarni’s case (supra).The court observed that in this present case, the delay of 258 days is exorbitant and the said delay cannot be condoned as it would amount to delaying the very object and purpose of prescribing the limitation for challenging the Award under section 34 of the Act and frustrating the scheme of the Act. The circumstances of condonation of delay in re-filing therein have to be in consonance with the aims and objects of the Act. The period of 258 days delay is too excessive to be condoned on the ground pleaded by the petitioner. The re-filing circumstance gives the court power to condone the delay in special circumstances, but the said aspect cannot give any party a leverage period of limitation for filing the objections against the award.The court stated that the issue of re-filing also looked into the question of sufficient cause and good grounds for condoning the delay. The illness of the counsel can be a good ground to condonereasonable delay but cannot be overstretched to condone the excessive delay of 258 days, especially where the defects in objections are not vital in character and can be easily handled by the associate counsel having vakalatnama in their favour.DECISION HELD BY COURT:The court stated that this court no merit in the contention of the petitioner. The application IA No.6734/2008 under Section 5 of Limitation Act is dismissed.