The court determined that delay in filing a Section 34 application was justifiable due to the appellant's prior bona fide pursuit of a Writ Petition and the impact of COVID-19 on limitation periods.

JUDGMENT :

G.S. Kulkarni, J.

1. This appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (for short “ACA”) is directed against the judgment and order dated 21 July, 2023 passed by the learned District Judge No. 2 at Pune, whereby Civil Miscellaneous Application No. 343 of 2023 filed by the appellant under Section 34 of the ACA challenging an arbitral award dated 5 February 2020 passed by the Micro and Small Enterprises Facilitation Council, Pune (for short "Facilitation Council") constituted under the Micro, Small and Medium Enterprises Development Act, 2006 (for short "the MSME Act”) has been dismissed on the ground that the same is filed beyond the limitation as prescribed under sub-section (3) of Section 34 of the ACA.

2. The relevant facts are: Disputes and differences had arisen between the parties under the purchase order dated 9 March, 2013. The respondent accordingly approached the Facilitation Council making a claim of an amount of Rs. 4,50,92,587/-. There were attempts to bring about a settlement. In fact, a Settlement Agreement dated 16 May, 2016 was entered between the parties, however, certain dues were claimed by the respondent. The dispute hence was taken up in arbitration. The Facilitation Council adjudicated the disputes leading to an arbitral award dated 5 February, 2020 being rendered by the Facilitation Council.

3. The case of the appellant is that an award was rendered just before the Covid-19 pandemic engulfed the country and consequent thereto a lock-down was declared in March, 2020. The appellant in such context has referred to an order dated 23 March, 2020 passed by the Supreme Court whereby the Supreme Court extended the period of limitation in relation to all proceedings including the arbitration proceedings. The case of the appellant is that the impugned award was made available/received by the appellant on 21 August, 2020, which itself was during the lock-down period.

4. The appellant has contended that the appellant moved a Writ Petition, being Writ Petition No. 9317 of 2021 before this Court challenging such arbitral award passed by the Facilitation Council on the ground that initially the Facilitation Council had entertained the matter in Conciliation and hence it was not permissible for the Facilitation Council to take up the matter for arbitration relying on the decision of this Court in Gujarat State Petronet Ltd. vs. Micro and Mine Enterprises Facilitation Council, Writ Petition No. 5449 of 2015 decided on 6 August 2018. There were other contentions as urged on behalf of the petitioner in the said Writ Petition inter alia that the disputed amount was paid by the appellant to the respondent, hence no amount was payable. Whereas in such proceedings, on behalf of the respondents, reliance was placed on the decision of Supreme Court in Jharkhand Urja Vikas Nigam Limited vs. State of Rajasthan and Others, 2021 SCC OnLine SC 1257, to contend that the Supreme Court had held that it is open to the Facilitation Council to take up the Arbitration proceedings after failure of the conciliation.

5. On the said Writ Petition filed by the appellant, a learned Single Judge of this Court considering the rival contentions, passed an interim order dated 7 October, 2022, that the parties would be required to be heard, as arguable issues were raised, and accordingly listed the petition for final disposal on 18 November, 2022, thereby granting an interim stay to the impugned award subject to the appellant depositing the amount of Rs.4,52,250/- in this Court. The proceedings thereafter were listed before the learned Single Judge on 11 January, 2023, when the Court passed an order accepting the request as made on behalf of the appellant to withdraw the Writ petition to avail of the alternate remedy which may be available to the appellant in law. The said order reads thus:

“1. Heard Mr. Kamdar, learned Advocate for Petitioner and Mr. Petkar, learned Advocate for Respondent.

2. At the outset, Mr. Kamdar, le