JUDGMENT :

(A.S. Chandurkar, J.)

1. ADMIT. Heard finally with consent of the learned counsel for the parties.

2. This appeal preferred under Section 37 of the Arbitration and Conciliation Act, 1996 (for short, ‘the Act of 1996’) read with Section 13 of the Commercial Courts Act, 2015 takes exception to the order dated 01.12.2022 passed by the learned District Judge – 9, Nagpur in Miscellaneous Civil Application No. 545 of 2022. By the said order, the application preferred by the appellant seeking permission to file proceedings under Section 34 of the Act of 1996 beyond the period of three months has been dismissed.

3. The facts relevant for considering the present appeal are that on 10.11.2021 an award was passed by the learned Arbitrator by which the appellant was directed to pay an amount of Rupees Four Crores to the respondent with interest at the rate of 12% per annum alongwith costs of the arbitration proceedings. The appellant being aggrieved by the said award filed an application under Section 34 of the Act of 1996 on 30.06.2022. Since the said application was filed beyond the period of three months as stipulated by Section 34(3) of the Act of 1996, an application under proviso to Section 34(3) of the Act of 1996 was moved on 05.07.2022. The said application was opposed by the respondent and by the impugned order, the said application has been rejected. The said order dated 06.12.2022 is the subject matter of challenge in the present appeal.

4. Shri C.S. Dharmadhikari, learned counsel for the appellant submitted that the learned Judge misconstrued the provisions of Section 34 of the Act of 1996 inasmuch as Section 34(3) of the Act of 1996 permits an application to be made for setting aside the award within a period of three months from the receipt of the arbitral award. Subject to the Court being satisfied that the applicant was prevented by sufficient cause from making such application within the period of three months, the Court could entertain the application within further period of thirty days but not thereafter. The learned Judge construed the period of three months as ninety days as a result of which the appellant was held entitled to a lesser period than what is provided by Section 34(3) of the Act of 1996. In other words, the period of three months and further period of thirty days has been considered to be 120 days which was not in accordance with Section 34(3) of the Act of 1996. In that regard, the learned counsel referred to the decisions in State of Himachal Pradesh & Another Versus Himachal Techno Engineers & Another [(2010) 12 SCC 210] and Sesh Nath Singh & Another Versus Baidyabati Sheoraphuli Co-operative Bank Limited & Another [(2021) 7 SCC 313]. It was thus submitted that in terms of the order passed by the Hon’ble Supreme Court in the matter of extension of limitation due to the pandemic situation dated 10.01.2022 the period between 05.03.2020 to 28.02.2022 was to be excluded and the period of three months from 01.03.2022 became available. The period of three months therefore would commence from 01.03.2022 and the same would come to an end on 31.05.2022. An application under Section 34 of the Act of 1996 was filed on 30.06.2022 which was the thirtieth day in terms of the proviso to Section 34(3) of the Act of 1996. Since the appellant had indicated sufficient cause for not having made the application within the period of three months, the application having been made within the permissible extended period ought to have been granted. It was further submitted that merely because the application seeking permission to file the proceedings was not filed alongwith the application under Section 34 of the Act of 1996 but was filed on 05.07.2022, same would not mean that the said application was not liable to be considered. It was thus submitted that the order passed by the learned District Judge be set aside and the application under Section 34 of the Act of 1996 be directed to be entertained on merits.

5. Shri