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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Maharashtra State Road Development Corporation Ltd. - Petitioner
Versus
Simplex Gayatri Consortium & Others - Respondents
Commercial Arbitration Petition No. 453 of 2017 alongwith Notice of Motion No. 536 of 2017
Decided On : 19-04-2018
Arbitration & Conciliation Act, 1996 - section 34 - Limitation Act, 1963 - section 14(1) - Claim made by respondents - Global Aviation Services Private Limited vs. Airport Authority of India - Petition filed section Arbitration & Conciliation petitioner has impugned arbitral award passed by arbitrator allowing certain claims made by respondents - Respondents have raised an issue of limitation in petitioners filing this petition allegedly beyond period of limitation prescribed section Arbitration & Conciliation Act - This Court has thus heard counsel for parties on issue of limitation raised by respondents first - Some relevant facts for purpose of deciding issue limitation raised by respondents are as– Held, Case Prasad supra relied upon by is concerned perusal said judgment indicates that appellant in that matter though on basis of higher valuation appeal was required to file an appeal in High Court filed said appeal before District Judge - An objection was immediately raised by respondents in that appeal about lack jurisdiction of High Court - Appellant however continued to prosecute said appeal before High Court - Allahabad High Court that where law is plain and does not admit of any doubt and appellant or his agent could not possibly have any illusion as to appropriate forum for presenting appeal it would be case of palpable negligence and would not be covered by provisions of Section Limitation Act - In facts of this case however as already referred to aforesaid large number of litigants filed application section without issuing prior notice section having bona fide doubt as to whether notice section was mandatory or directory - Judgment delivered by this court in case of Global Aviation Services Private Limited supra has ultimately settled issue and held that notice section is not mandatory but is directory - In this case petitioner cannot be held guilty of negligence for not giving prior notice section - Facts before Allahabad High Court in case Prasad supra are totally different and are distinguishable in facts of this case and thus would not assist case of respondents - In my view petitioner has made out case for exclusion of time section Limitation Act for period from to August - There is thus no delay in filing arbitration petition by petitioner - Preliminary objection raised by respondents that petition is barred by limitation has thus no merit and is accordingly rejected – Order accordingly
1. By this petition filed under section 34 of the Arbitration & Conciliation Act, 1996, the petitioner has impugned the arbitral award dated 28th April, 2017 passed by the learned arbitrator allowing certain claims made by the respondents.
2. The respondents have raised an issue of limitation in the petitioner's filing this petition allegedly beyond the period of limitation prescribed under section 34(3) of the Arbitration & Conciliation Act, 1996. This Court has thus heard the learned counsel for the parties on the issue of limitation raised by the respondents first. Some of the relevant facts for the purpose of deciding the issue of limitation raised by the respondents are as under:
3. The petitioner lodged the Commercial Arbitration Petition (Lodging) 334 of 2017 in this Court on 26th July, 2017 inter-alia praying for setting aside the impugned award dated 28th April, 2017 i.e. within a period of three months from the date of service of the signed copy of the award from the learned arbitrator. By an Arbitration & Conciliation (Amendment) Act, 2015, section 34(5) of the Arbitration & Conciliation Act, 1996 was inserted, which reads thus:
(5) An application under this section shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance with the said requirement.
4. The petitioner did not issue any prior notice to the respondents before filing the said Commercial Arbitration Petition (Lodging) 334 of 2017. The petitioner however, issued a notice under section 34(5) upon the respondents on 27th July, 2017. The petitioner also filed an affidavit proving the service of the said notice dated 27th July, 2017 on 28th July, 2017.
5. On 27th August, 2017 the respondents filed an affidavit in reply in the said arbitration petition (L) No. 334 of 2017 which was numbered as 400 of 2017 opposing the submissions and the averments in the said arbitration petition. The respondents also raised an issue in the said affidavit in reply that since the petitioner had not complied with the requirement under section 34(5) of the Arbitration and Conciliation Act, 1996 by not issuing prior notice to the respondents, the said petition was not maintainable.
6. The said Arbitration Petition No. 400 of 2017 appeared before this court on 18th August, 2017. The respondents made oral submissions in that petition on 18th August, 2017 that the petition was not maintainable in view of the amended Act having come into force. This court recorded the said submission in the said order dated 18th August,2017 and directed that the point raised by the respondents that the petition itself was not maintainable would be considered by this court on the next date. The said arbitration petition was adjourned to 31st August, 2017.
7. On 31st August, 2017 this court granted liberty to the petitioner to withdraw the said Arbitration Petition No.400 of 2017 with liberty to file a fresh petition. The petitioner thereafter issued a notice to the respondents under section 34(5) of the Arbitration and Conciliation Act, 1996 on 1st September, 2017. The petitioner lodged this arbitration petition (Commercial Arbitration Petition No. 453 of 2017) inter alia impugning the said arbitral award on 1st September, 2017. The petitioner also filed an affidavit in compliance with section 34(5) of the Arbitration and Conciliation Act, 1996 on 1st September, 2017.
8. Mr. De'vetre, learned senior counsel for the petitioner invited my attention to some of the annexures to the petition. It is submitted that the petitioner had received a signed copy of the award dated 28th April 2017 from the learned arbitrator on 30th April, 2017. Before expiry of three months from the date of service of copy of the award, the petitioner lodged the said arbitration petition bearing No.400 of 2017 on 26th July, 2017. The petitioner however had issued a notice under section 34(5) and had filed an affida
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