IMPORTANT POINT
Setting aside arbitral award – Computation of limitation period – Benefit of exclusion of period during which Court is closed shall be available when application for setting aside award is filed within prescribed period of limitation and shall not be available in respect of period extendable by Court in exercise of its discretion.

JUDGMENT :

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23.02.2022 passed by the High Court of Karnataka, at Kalaburagi in Misc. First Appeal No. 201018/2018 by which the High Court has dismissed the said appeal and has confirmed the order dated 02.04.2018 passed by the learned III Additional District and Sessions Judge, Vijayapur (hereinafter referred to as “trial Court”) in rejecting the application for condonation of delay caused in preferring the application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “Arbitration Act”) the original applicant has preferred the present appeal.

2. The brief facts leading to filing of the present appeal in nutshell are as under:

2.1 That, an arbitral award was passed against the appellant under the provisions of the Arbitration Act on 24.08.2016. As per Section 34(3) of the Arbitration Act, 90 days are prescribed for preferring an application under Section 34 of the Arbitration Act against the arbitral award. However, the said period was extendable by a further period of 30 days in terms of the proviso to Section 34(3) of the Act, 2016. In the present case, the period of 90 days prescribed under Section 34(3) of the Arbitration Act expired on 24.11.2016. The appellant was entitled to a further extended period of 30 days from 23.11.2016 onwards in terms of the proviso to Section 34(3) which was upto 24.12.2016.

2.2 The trial Courts were closed on account of winter/Christmas vacations from 19.12.2016 to 01.01.2017. However, it so happened that extendable/condonable period of 30 days as contemplated in the proviso to Section 34(3) expired on 24.12.2016 on which day the trial Court was closed on account of winter/Christmas vacation. The appellant herein filed the application under Section 34 of the Arbitration Act, challenging the award passed by the Arbitral Tribunal. The appellant also filed IA No. 1 for condonation of delay. Both, Section 34 application as well as the application for condonation of delay were filed on the reopening day i.e. on 02.01.2017. As the application under Section 34 of the Arbitration Act was beyond the prescribed period of provided under Section 34 of the Arbitration Act as well as beyond the condonable period of 30 days, the learned trial Court dismissed the IA No. 1 and refused to condone the delay by observing that the period beyond 120 days is not condonable as under the Arbitration Act, maximum period provided for preferring an application under Section 34 is 120 days. At this stage it is required to be noted that in the affidavit filed by the appellant before the High Court, filed in support of IA No. 1, the appellant as such admitted that it received the copy of the award on 24.08.2016. However, according to the appellant, the said award was misplaced and thereafter obtained a fresh copy on 29.12.2016. The learned trial Court observed that in that view of the matter, the period of limitation would commence from 24.08.2016 and 120 days are to be counted from 24.08.2016.

2.3 Feeling aggrieved and dissatisfied with the order passed by the learned trial Court refusing to condone the delay in preferring application under Section 34 of the Arbitration Act, the appellant herein preferred an appeal before the High Court.

2.4 Before the High Court, Section 4 of the Limitation Act, 1963 and Section 10 of the General Clauses Act, 1897 were pressed into service. By the impugned judgment and order the High Court has dismissed the said appeal by observing that the expression “prescribed period” appearing in Section 4 of the Limitation Act cannot be construed to mean anything other than the period of limitation and therefore, any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceeding, cannot be taken to be “prescribed period.”

2.5 Feeling aggrieved and dissatisfied with the impugned judgment and order pass