The court emphasized the peremptory language of section 34 of the Arbitration and Conciliation Act, 1996, and the requirement for sufficient cause to condone any delay in filing the application.

JUDGMENT

Moushumi Bhattacharya, J. - A preliminary point has been raised by the respondent in the present challenge to an Award under section 34 of The Arbitration and Conciliation Act, 1996. The respondent contends that the application for setting aside of the Award filed by the petitioner is barred by limitation and should, therefore, be dismissed.

2. Mr. Joy Saha, learned Senior Counsel appearing for the respondent, places the relevant dates for the question of maintainability and urges that the petitioner has not taken any steps in having the initial delay in filing of the Award, condoned. Counsel relies on Union of India vs. Popular Construction Co., (2001) 8 SCC 470 and Simplex Infrastructure Limited vs. Union of India, (2019) 2 SCC 455 for the proposition that section 5 of The Limitation Act, 1963 would not apply to section 34 of the 1996 Act. Counsel cites Maqbul Ahmed & Ors. vs. Pratap Narain Singh & Ors., (1935) AIR PC 85 and Sri Amar Chand Inani Vs. Union of India, (1973) 1 SCC 115 for the proposition that when a plaint is filed in a wrong court, the time consumed between passing of the order returning the plaint and re-filing of the plaint cannot be excluded. Two recent orders of the Supreme Court dated 23rd March, 2020 and 18th September, 2020 passed in Suo Moto Writ Petition (C) No.3/2020 and in Sagufa Ahmed vs. Upper Assam Plywood Products Pvt. Ltd. (Civil Appeal Nos.3007-3008 of 2020) respectively, have been relied upon to urge that by the said orders, the Supreme Court extended the period of limitation due to the pandemic but not the period up to which delay can be condoned in exercise of discretion by the particular statute. Counsel also relies on an order passed in Siddha Real Estate Development Private Limited Vs. Girdhar Fiscal Services Private Limited in C.S. No.245 of 2019.

3. Mr. Biswajit Mukherjee, learned counsel appearing for the petitioner, contends that there has only been a delay of 22 days in filing the section 34 application in the Alipore Court and by an order dated 15th October, 2020, the Alipore Court directed that the section 34 application along with all annexures should be returned to the petitioner for filing before the competent court of jurisdiction in Kolkata. Counsel submits that the certified copy of this order was received on 20th October, 2020 and the petitioner received the other documents only on 22nd December, 2020 on which day the present application was filed before this court. Counsel relies on an order dated 10th July, 2020 passed by the Supreme Court in Suo Motu Petition (C) No.3 of 2020 by which upon considering the lockdown in view of Covid, the Supreme Court, following earlier orders dated 23rd March, 2020 and 6th May, 2020 allowed extension of all periods of limitation prescribed under the 1996 Act with effect from 15th March, 2020 till further orders.

4. Upon hearing learned counsel appearing for the parties, the relevant dates central to the issue of maintainability, namely, the delay in filing of the section 34 application, are stated in brief.

5. The impugned Award was passed on 15th February, 2019 and received by the petitioner on 27th February, 2019, the application under section 34, challenging the Award was filed by the petitioner before the Commercial Court, South 24-parganas on 18th June, 2019. On 15th October, 2020, the Commercial Court, South 24-Parganas passed an order holding that it had no jurisdiction to entertain the application under section 34 of the 1996 Act and directed return of the petition for being filed before the appropriate court. The petitioner received the certified copy of the aforesaid order on 20th October, 2020. The Puja vacation of the Calcutta High Court commenced from 22nd October, 2020 and the Court re-opened after the Puja vacation on 17th November, 2020. The present application under section 34 of the 1996 Act was filed by the petitioner on 22nd December, 2020.

6. Under section 34(3) of the 1996 Act, an application for setting asid