The withdrawal of an application challenging an arbitral award for a bona fide reason allows for the filing of a subsequent application within the limitation period, and the provision of Order XXIII Rule 1 (4) of the Civil Procedure Code, 1908 does not apply to applications under Section 34 of the 1996 Act.

JUDGMENT :

The present application has been filed, under Article 227 of the Constitution of India, for setting aside the order, dated 25.04.2019, passed by the District Judge, Patna, in Misc. (Arbitration) Case No. 12 of 2019, whereby the said misc. case has been admitted for hearing.

2. Misc. Case no. 12 of 2019 has been filed, under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the 1996 Act’) by the respondent-Bharat Petroleum Corporation Limited (in short, ‘Corporation’), challenging the arbitral award, dated 02.07.2018, passed by the Arbitrator Hon’ble Justice Smt. Mridula Mishra (Retd.).

3. The petitioner is a firm, engaged in selling of petroleum products and was granted license for operating the petrol pump by the respondent-Corporation on 17.01.2017, but the said license was cancelled, which was challenged by the petitioner in CWJC No. 1493 of 2017. This Court, vide order, dated 21.03.2017, directed the petitioner to take steps for arbitration. Thereafter, the petitioner filed Request Case No. 91 of 2017, in which this Court, vide order, dated 30.08.2017, directed for appointment of Arbitrator. The learned Arbitrator thereafter conducted the arbitration proceeding and passed an award on 02.07.2018 (Annexure 2 to this application) in favour of the petitioner, holding that the termination of the license of the petitioner by the respondent-Corporation is illegal and, accordingly, the order of termination was quashed, with further direction to the Corporation to restore the license of the petitioner in terms of the agreement, dated 28.03.2014 and also to restore the supply of petroleum products to the retail outlet of the petitioner.

4. The award, dated 02.07.2018, was challenged by the respondent-Corporation by filing Misc. Case No. 133 of 2018 before the District Judge, Patna, under Section 34 of the 1996 Act. Since the said misc. case was filed without compliance of Section 34 (5) of the 1996 Act and no prior notice was served upon the petitioner, as such, on the objection raised by the petitioner, the respondent-Corporation sought permission from the learned District Judge, Patna, to withdraw misc. Case No. 133 of 2018 and, accordingly, Misc. Case No. 133 of 2018 was dismissed as withdrawn, vide order, dated 17.01.2019, passed by the learned District judge, Patna.

5. Learned Senior Counsel appearing on behalf of the petitioner submits that Misc. Case No. 133 of 2018 was withdrawn by the respondent-Corporation without seeking liberty of the learned Court below to file a fresh case, challenging the award, dated 02.07.2018 and, admittedly, 90 days’ time, prescribed under Section 34 (3) of the 1996 Act for challenging the award expired on 02.10.2018 and thereafter 30 days’ period, provided under the proviso of Section 34 (3) of the 1996 Act had also expired on 02.11.2018, as such, on the date on which the misc. Case No. 133 of 2018 was withdrawn, i.e. on 17.01.2019, the maximum time prescribed under Section 34 (3) of the 1996 Act of 120 days’ (90 + 30) had already expired and, therefore, on the date of seeking withdrawal of the Misc. Case No. 133 of 2018, it was mandatory for the respondent-Corporation to seek liberty of the learned Court below to file a fresh case and in absence of such liberty, after the expiry of the time period, provided under Section 34 (3) of the 1996 Act, no case can be filed challenging the award passed under the 1996 Act. Learned Senior Counsel relied upon the judgment of the Supreme Court, in the case of Ramjee Power Construction Limited v. Jharkhand Urja Vikash Nigam Limited and Another, reported in 2019 (2) PLJR SC 321, in which the Supreme Court has held that if an application under section 34 of the 1996 Act is filed after the mandatory period of 120 days’, then, in such cases, there was no scope for having the delay condoned as no power is provided under Section 34 of the 1996 Act to condone the delay in filing the application under Section 34 of the 1996 A