JUDGMENT :

Arindam Mukherjee, J.

1. The Appeal arises out of a judgement and order dated 22nd February, 2021 by which an application filed by the appellant under the provisions of Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said ‘Act’) was dismissed on the ground that the same is barred by limitation.

Facts of the Case:

(a) The appellant suffered an award made and published on 15th February, 2019 (hereinafter referred to as the said Award). The said award was received by the appellant on 27th February, 2019. The appellant on 18th June, 2019 filed an application for setting aside of the said award under the provisions of Section 34 of the said Act (hereinafter referred to as the said application) before the Court of the Learned District Judge, at Alipore. The said application was filed on the 112th day from the date of receipt of the award by the appellant. The said application was therefore, filed beyond three months from the date when the appellant received the said award but, within the further period of 30 days available under Section 34(3) of the said Act to make a setting aside application. The appellant therefor, made a prayer for the said application to be entertained by condoning the delay. The appellant cited reasons to demonstrate that it was prevented by sufficient cause from making the application within three months from the date of the receipt of the said award.

(b) The said application was transferred from the Court of the Learned District Judge, at Alipore to the Commercial Court at Alipore on 20th February, 2019 and was renumbered as Misc. Case (Arbitration) Number 80 of 2020.

(c) On or about 20th September, 2019 the respondent took out an application being IA No. 111 of 2020 before the Commercial Court at Alipore challenging its territorial jurisdiction of the said Court to receive, entertain, try and adjudicate the said application.

(d) By an order dated 15th October, 2020, the Commercial Court at Alipore held that it had no territorial jurisdiction to receive, entertain and try the said application and directed return of the said application to the appellant for being filed before a Competent Court of jurisdiction in Kolkata.

(e) The appellant applied for certified copy of the order dated 15th October, 2020 on 17th October, 2020. The certified copy was made available to the appellant on 20th October, 2020. The Commercial Court at Alipore closed for the annual vacation on 20th October, 2020 and reopened on 17th November, 2020. The appellant received the cause papers relating to the said application on 22nd December, 2020 and filed the same before this Court on the same day i.e., 22nd December, 2020 when it was numbered as A.P. No.411 of 2020. These facts as to the date of receipt of the award, date of filing of the said application before the Court of the Learned District Judge at Alipore, its transfer to the Commercial Court, the order of return of application and obtaining of certified copy, the period of annual vacation, collection of cause papers and presentation of the said application before this Court are not in dispute.

Submission of the Appellant:

(i) The appellant says that the said application was filed 22 days beyond the three months’ period from the date of receipt of the award being the time available for filing the said application. The delay of 22 days can be condoned under the provisions of Section 34(3) of the said Act if sufficient cause is shown which had prevented the appellant from filing the said application within the three months time frame. The appellant says that it has shown sufficient cause for which they were prevented from filing the said application within three months’ time period. This Court according to the appellants should be satisfied with the explanation given for the delay and should entertain the said application by condoning the delay.

(ii) The appellant further says that the physical return of the cause papers pertaining to the appl