The main legal point established in the judgment is that the limitation period for filing objections under Section 34 of the Arbitration and Conciliation Act, 1996, is not extended by the pendency of an application under Section 33 if the application is beyond the scope of Section 33 and is in fact a review application.

C.M. Appeal No. 37308/2017 (for exemption)

Exemption allowed, subject to all just exceptions.

The application stands disposed of.

FAO No. 399/2017

1. This first appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) impugns the judgment of the court below dated 18.7.2017 which has dismissed the objections filed by the appellant under Section 34 of the Act. Objections have been dismissed not only on the ground that they were time barred but also on merits.

2. In my opinion, once the objections are filed beyond limitation, then the Court cannot go into the merits of the matter and objections which are time barred have to be dismissed in view of the judgment of the Supreme Court in the case of Union of India vs. M/s Popular Construction Company, (2001) 8 SCC 470.

3. In the present case, the admitted facts are that the arbitration Award dated 7.4.2010 was received by the appellant/objector on 4.5.2010 and the objections under Section 34 of the Act have been filed on 8.8.2013, i.e. after more than three years. It is argued on behalf of the appellant that there is no delay in filing of the objections because the appellant had filed an application under Section 33 of the Act, and once an application under Section 33 of the Act remained pending, then for the period for which application under Section 33 of the Act remained pending, this period had to be extended for computing the period of limitation for filing objections being 90 days plus 30 days. Reliance is also placed upon the judgment passed by a Learned Single Judge of this Court in the same case between the parties on 14.8.2015 in FAO No. 76/2015 and in which judgment the Learned Single Judge of this Court held that the court below could not have dismissed the subject objections filed by the appellant under Section 34 of the Act as the application under Section 33 of the Act was still pending when the objections of the appellant were dismissed. The relevant paras of the judgment dated 14.8.2015 reads as under:-

“9. It is clear thus, that pursuant to passing of the award (a copy of which was received within 10 days), the appellant filed an application under Section 33 of the 1996 Act. This application had not been adjudicated by the learned Arbitrator, at least, not by the time the impugned judgment was passed by the learned Additional District Judge. If that be so, quite logically, the limitation against the appellant would start running only after the application under Section 33 of the 1996 Act, is disposed of.

10. Mr. David, however, contends that the application filed is beyond the scope of the provisions contained in Section 33 of the 1996 Act.

11. In my view, this submission is completely misconceived. It is for the arbitrator to decide one way or the other as to whether the application filed under Section 33 of the 1996 Act is tenable or not. This is not a decision, which either trial court or this Court can make, at this stage.

11.1 The issue which presently arises for consideration, concerns only limitation, i.e. as to whether or not the petition filed by the appellant under Section 34 of the 1996 Act was within limitation. For this purpose, the provisions of Section 34(3) of the Act are referred to. The relevant portion of Section 34 reads as follows:-

“34. Application for setting aside arbitral award –

1............

2............

3. 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 30 days, but not thereafter.

4............

(Emphasis is mine)

12. A bare perus