The court emphasized the importance of adhering to the prescribed period for setting aside an award, the exclusion of Section 5 of the Limitation Act, and the court's discretion to condone the delay within the prescribed period.

JUDGMENT :

Goutam Bhaduri, J.

1. Heard.

2. The present appeal is against the order dated 7.5.2022 in an unregistered M.J.C/2021, whereby, the Commercial Court (District Level), Nava Raipur, Chhattisgarh, has dismissed the appeal preferred by the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 (in short “the Act, 1996”).

3. The brief facts of this case are that an award was passed by the Arbitrator on 7.4.2018. According to the appellant, the said award was received by the appellant on 9.4.2018. Initially, Arb.R. 11/2019 was filed before the High Court on 15.4.2019, which was eventually dismissed as withdrawn vide order dated 15.5.2019 with liberty to file a duly constituted appeal before the Commercial Court at Raipur. Thereafter, an appeal was filed before the Commercial Court at Raipur on 23.7.2021 along with an application under Section 14 read with Section 5 of the Limitation Act, 1963 (in short “the Limitation Act”), which was dismissed.

4. Learned counsel for the appellant would submit that the appellant could not know that the petition preferred before the High Court has been withdrawn and only when the notice of execution was served, they came to know about it. Thereafter, the appellant, after following due procedure, filed an appeal along with an application under Section 14 read with Section 5 of the Limitation Act for condonation of delay. He would submit that on reading of sub-section (1) of Section 43 of the Act, 1996, it is clear that the Limitation Act shall apply to arbitrations as it applies to proceedings in Court. Consequently, the Commercial Court should have taken notice of the facts enumerated in the application filed under Section 5 of the Limitation Act, wherein, the reasons as to why the delay occurred, in detail, were explained. He further submits that when the first proceeding was withdrawn before the High Court, liberty was granted to the appellant to file an appeal before the Commercial Court and the limitation was automatically extended by the order of the Court and by subsequent proceeding of Hon'ble the Supreme Court in a Miscellaneous Application No.21 of 2022 and other connected application, including suo motu WPC No.3 of 2020.

5. Per contra, learned counsel for the respondents submits that on a plain reading of Section 43 of the Act, 1996, on which, learned counsel for the appellant has placed reliance, it appears that the same would not be applicable in the case of appeals. He would submit that the limitation would be applicable to the arbitration proceeding alone and Section 21 of the Act, 1996 only confines to arbitral proceeding and not the appellate proceeding. It is stated that the challenge to award would be governed by a separate proceeding provided under Section 34 of the Act, 1996. It is further pleaded that it is not disputed that the benefit of Section 14 can be given under the Limitation Act, but not beyond the period mentioned under Section 34. He also submits that if the time was spent on account of prosecuting a proceeding before a wrong Court, the period of 30 days can be excluded from 15.4.2019 to 15.5.2019 subject to limitations of Section 34 of the Act, 1996. He would submit that the benefit also cannot be extended to the appellant for the reason that the appeal should have been preferred as per the time prescribed under Section 34 of the Act, 1996, which has already expired even before 15.4.2019 in an earlier round of litigation before this Court. Therefore, the instant appeal is liable to be dismissed.

6. We have heard learned counsel for the parties and perused the record of the appeal.

7. The date of award which was subject matter of challenge is 7.4.2018'. According to the appellant, the date of receipt of the award by the appellant is 9.4.2018'. As per Section 34 of the Act, 1996, the prescribed period for setting aside the award is 3 months, which would mean that the initial date would be 8.7.2018 and subsequently, the extended period of 30 days as