The main legal point established in the judgment is that the delay in re-filing a petition under Section 34 of the Arbitration and Conciliation Act, 1996 is not subject to the rigorous tests applied in excusing the delay in an initial filing. However, the delay cannot be condoned if it frustrates the scheme of the Act and exceeds a reasonable limit.

Manmohan Singh, J.

1. By this order, I shall dispose of application under Section 5 of the Limitation Act read with Section 151 CPC being I.A. No. 6734/08 for condonation of delay in re-filing of the petition under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the award dated 2nd June, 2007 passed by the learned arbitrator.

2. It is contended by the applicant that the impugned award was passed on 2nd June, 2007 by the learned sole Arbitrator in Arbitration Application No. 241/03 wherein the learned Arbitrator passed an award of Rs. 52,05,367/- with interest @ 12% p.a. thereon from 2nd June, 2007 till date of payment as per terms of the award.

.3. The petition under Section 34 of the Act was initially filed in the court on 9th August, 2007 vide diary No. 103209 which is within the time period prescribed under the Act. The Dealing Assistant on 13th August, 2007 raised certain objections:

.(a) Caveat report be obtained;

.(b) Memo of Party be filed ; and

.(c) Urgent application not signed

4. The objections were removed and it was re-filed again on 31st October, 2007. It was mentioned that the urgent petition was not being filed and the petition may be listed on ordinary basis. However, the registry again raised the objection that the application for condonation of delay in re-filing be filed giving the details of the delay in filing of the petition. The petition was again refiled only in the second week of April, 2008 and again an objection was raised by the registry that the caveat report had not been taken and the details of the delay in re-filing of the petition were not correct. On 23rd May, 2008 the registry again raised the objections that the objections already raised have not been removed and on 26th May, 2008 the petition was re-filed again and came up before court on 28th May, 2008, whereby notice was issued in I.A. No. 6734/08 under Section 5 of the Limitation Act for condonation of delay.

5. In the instant application under Section 5 of the Limitation Act, condonation of delay has been sought in re-filing of original miscellaneous petition filed against the award dated 2nd June, 2007 in respect of 258 days delay beyond the period of 90 days on the ground that the senior Standing counsel looking after the matter had to undergo surgery followed by prolonged recovery period seeking constant attention and the file was also mixed up with other files in his office and the said delay which occurred in re-filing is bonafide and unintentional and the same be condoned.

.6. In reply to the application by the respondent, it is stated that the application under Section 5 of the Limitation Act is not maintainable and the delay of more than 30 days after the expiry of the prescribed period of 90 days cannot be condoned. It is also contended that Section 5 of the Limitation Act does not apply to the petition under Section 34 of the Act. The application lacks in detail as it does not give the dates of surgery undergone by the counsel and his recovery from it nor it is explained why the alternative counsel was not engaged earlier as was done later and mixing of files is not a ground for condonation of delay. The delay must be explained day-by-day. It is alleged that it is irrelevant whether the delay is intentional or unintentional as the court does not have the power to extend the time limit prescribed by Section 34 of the Act and the delay under any circumstances cannot be condoned.

7. It is argued by learned Counsel for the respondent that Section 34 of the Arbitration & Conciliation Act does not refer to different kinds of delay-some that can, and others that cannot, be condoned beyond the time limit prescribed in it. Even one days delay (beyond 30 days delay condonable under the said Section) cannot be condoned. Decisions of the Supreme Court for a liberal approach to condoning the delay do not apply to matters governed by the special provisions of Section 34 of the Act.

8. In rejoinder to the