Point of Law: Setting aside or refusing to set aside arbitral award under Section 34 of Act and an appeal lies where an order is passed under Section 34.

JUDGMENT :

The appellants have filed an application under Section 5 of the Limitation Act to condone the delay of 270 days in filing the above appeal and in support of an application, an affidavit is sworn to that, the judgment passed by the Hon’ble District Judge, Mandya, is against the provisions of law and the judgment was passed on 30.3.2021 and a copy of the judgment was sent for obtaining the legal opinion. After receipt of the opinion, it is observed that the impugned judgment passed was erroneous and it requires to be challenged and hence decided to challenge the impugned order by filing the above appeal.

2. It is sworn to that, on account of the procedure involved in finalizing the papers and processing the same, there is a bit delay in filing the above appeal and with an abundant caution, the above application is filed for seeking condonation of delay.

3. This application is resisted by filing the statement of objections by the respondents contending that the very application is not maintainable. In the statement of objections it is contended that admittedly the appeal is filed after the delay of 605 days and no cogent reason is forthcoming for the said undue delay. The only reason forthcoming is that matter was sent for legal opinion and the file could not be found and could not be traced, are not the cogent reasons. In fact, the reason assigned is, delay and latches on the part of the appellants. It is contended that execution petition was filed in No.118/2022 before the Principal District and Sessions Judge, Mandya and the appellants have filed objections on 2.6.2022 stating that execution petition was not maintainable because of non furnishing the conversion order and layout plan. Hence, it is clear that the appellants have accepted the judgment and decree of the District Judge and appellants had no plan to file the appeal and the present appeal is an after thought.

4. It is also contended that the learned District Judge dismissed the arbitration suit incidentally relying upon the decision of this Court in (H.M. SHANKARAMURTHY Vs. NATIONAL HIGHWAYS AUTHORITY OF INDIA) reported in 2011(2) Kar.L.J.(DB) and the decision of the Supreme Court in the case of M.P. Power Generation Co. Ltd. Vs. Anraldo Energia SPA and another reported in SCC Online SC 385 as well as Associate Builders Vs. Delhi Development Authority reported in AIR 2015 SC 620, and hence not made out any ground to condone the delay and having the knowledge about the execution, appeared and filed objection statement on 2.6.2022 itself. The present appeal is filed in the year 2023, that too in the month of February and no explanation for the delay and hence delay cannot be condoned.

5. The counsel in support of his argument relied upon the judgment reported in (2021) 6 SCC 460 and referring this judgment the counsel would vehemently contend that Section 5 of the Limitation Act is not maintainable in an appeal filed under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’ for short). The counsel also relied upon the judgment of this Court dated 23.2.2022 passed in M.F.A.No.201018/2018 (AA), wherein also this Court held that maximum delay period is only 120 days and thereafter they cannot file an application to condone the delay and Section 5 of the Limitation Act cannot be invoked. The counsel also vehemently contend that the judgment of this Court in Bhimashankar Sahakari Sakkare Karkhane Niyamita passed in M.F.A.No.201018/2018 also affirmed by the Apex Court in Civil Appeal No.6810/2022 vide order dated 10.4.2023 and the Apex Court also comes to the conclusion that High Court has not committed any error in rejecting the condonation of delay application and hence the very application filed under Section 5 of the Limitation Act is not maintainable.

6. In reply to the arguments of the respondents counsel vehemently contend that Arbitration and Conciliation Act, 1996 is clear with respect to an appeal under Section