JUDGMENT :

A.S. BOPANNA, J.

1. The appellant in these appeals is assailing the order dated 24.09.2012 passed by the learned Division Bench of the High Court of Judicature at Bombay in Appeal Nos.526 and 525 of 2012 in N.M. No. 925/2012, N.M. No. 923/2012 in A.P. No. 209/2012 and A.P. No. 212 of 2012 respectively. By the said order the learned Division Bench has allowed the appeals, condoned the delay and directed to place the Arbitration Petition No. 209 of 2012 and 212 of 2012 filed under Section 34 of the Arbitration and Conciliation Act, 1996 (“Act 1996” for short) for admission hearing before the learned Single Judge for consideration on merits.

2. The brief facts leading to the above appeals is that the respondent availed loan facility for purchase of tractors and an Agreement No. 366533 dated 24.10.2005 was entered into between the parties in respect of the transaction. The further details relating to the transaction on merit is unnecessary to be adverted for the purpose of disposal of these appeals. However, it is noted that due to non-adherence to the terms of contract, dispute arose between the parties and the same was referred to arbitration by invoking the arbitration clause contained in the agreement. The learned Arbitrator passed the award dated 28.02.2011 and allowed the claim made by the appellant. The learned Arbitrator is stated to have dispatched the copy of the award to both the parties through Registered Post acknowledgment due. The appellant herein thereafter filed an execution petition on 27.06.2011 to execute the award and recover the amount due and payable by the respondent. The notice of execution petition from the court of the Civil Judge, District Court, Bhavnagar was issued to the respondent.

3. The respondent, at that stage, on 04.01.2012 assailed the arbitral award dated 28.02.2011 by filing the petition under Section 34 of the Act 1996. By such time there was delay of 185 days beyond the time period allowed under Section 34(3) of the Act 1996. Hence along with the petition, the respondent moved Notice of Motion No. 925 of 2012 in Arbitration Petition No. 209 and Notice of Motion No. 923 of 2012 in Arbitration Petition No. 212 of 2012 under Section 5 of the Limitation Act seeking condonation of delay contending that the respondent had knowledge of the proceedings only when summons was received from the execution court on 15.11.2011. The appellant herein filed their objection to the Notice of Motion. The learned Single Judge while considering the Notice of Motion in the petition under Section 34 of Act 1996 noted that the respondent refused to accept the registered post containing the award and, in that view, declined to condone the delay. The respondent therefore filed an appeal before the learned Division Bench, which has by a cryptic order condoned the delay against the statutory provision and the law enunciated by this Court. The appellant is therefore aggrieved and is seeking that the order passed by the learned Division Bench be set aside, consequently the petition filed by the respondent under Section 34 of Act 1996 be dismissed as barred by time.

4. We have heard Mr. Prashant Kumar, learned counsel for the appellant, Mr. V.N. Raghupathy, learned counsel for the respondents and perused the material available on record.

5. Having noted the sequence, the only aspect which arises for consideration in these appeals is as to whether the petition filed under Section 34 of the Act 1996 was within the period of limitation provided therein. If not, whether the delay is condonable by exercise of power under Section 5 of Limitation Act? In that regard whether the action of the learned Division Bench in condoning the delay by applying Section 5 of Limitation Act to a proceeding under Section 34(3) of Act 1996 in the manner it has done in the instant case justified?

6. To appreciate the matter in its correct perspective it is necessary at the threshold to take note of Section 34(3) of Act 1996 providing for the