Limitation for an application under Section 34(3) of the Arbitration and Conciliation Act, 1996, to set aside an arbitral award starts running from the date on which the party receives a signed copy of the award from the Arbitral Tribunal, which can be an authentic photocopy with signatures.

Indira Banerjee, J.

This appeal is against a judgment and Order dated 9th December, 2014 passed by the learned District Judge, Uttar Dinajpur, dismissing the application being Misc. Case No. 12 of 2014 filed by the appellants under Section 34 of the Arbitration and Conciliation Act, 1996, for setting aside an award dated 12th November, 2013 passed by the learned Arbitrator, Shri Kalyanmoy Ganguly, a retired Judge of this Court.

2. The learned Arbitrator handed over the original award to the respondent No. 1. On the same day a photocopy of the award was handed over to Sri. Pradip Saha, an Assistant Engineer, who acknowledged receipt thereof.

3. The photocopy of the award that was handed over to Sri. Pradip Saha had the photocopied signature of the learned Arbitrator. However, the learned Arbitrator had not signed the photocopy of the award.

4. The said application under Section 34 of the 1996 Act has been rejected on the ground that it had filed beyond a period of three months and thirty days from the date of receipt of the award.

5. Section 34(3) provides as follows:-

“An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.”

6. In view of Section 34(3) of the 1996 Act, delay beyond three months and thirty days, in filing an application under Section 34 of the 1996 Act, for setting aside an award, cannot be condoned under Section 5 of the Limitation Act, 1963.

7. Section 29(2) of the Limitation Act, 1963 provides as follows:-

“Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.”

8. The 1996 Act is a special law and Section 34 thereof provides for a period of limitation different from that prescribed under the Limitation Act, 1963 as observed by the Supreme Court in Union of India v. Popular Construction Company reported in (2001) 8 SCC 470.

9. In Popular Construction Company (supra), the Supreme Court reaffirmed that the mere stipulation of a period of limitation, howsoever peremptory the language, might not, in itself be sufficient to displace the applicability of Section 5 of the Limitation Act. The Supreme Court, however, held that the crucial words “but not thereafter” used in the proviso to sub-section (3) of Section 34 of the 1996 Act, would amount to express exclusion of Section 5 of the Limitation Act, under Section 29(2) of the said Act and would therefore bar the application of Section 5 of the Limitation Act, 1963. To quote the Supreme Court “to hold that the Court could entertain an application to set aside an award, beyond the extended period of limitation under the proviso, should render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such result.”

10. The proposition that the proviso to Section 34(3) bars the application of Section 5 of the Limitation Act, 1963, beyond the extended period of limitation also finds support from the judgment of the Supreme Court in Assam Urban Water Supply and Sewerage Board v. Subhash Projects and Marketing Limited reported in (2012) 2 SCC 624.

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