Point of Law : Arbitration and Conciliation - Arbitral Award - Challenged - Section 34 provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award “in accordance with” sub-section (2) and sub-section (3). Sub-section (2) relates to the grounds for setting aside an award. An application filed beyond period mentioned in sub-section (3) of Section 34, would not be an application “in accordance with” that sub-section.

JUDGMENT :

Prathiba M. Singh, J.

1. This hearing has been done through video conferencing.

2. The present petition challenges the impugned order dated 22nd January, 2021 by which the petition under Section 34 of the Arbitration and Conciliation Act, 1996, filed by the Petitioner-Department, has been dismissed as being barred by limitation.

3. A tender bearing No. 2013-DHS-44853 was floated by the Petitioner on 13th September, 2013 for housekeeping services. The Respondent had participated in the said tender and was awarded the contract on 23rd May, 2014. The detailed agreement was executed between the parties on 21st May, 2014. The payment had to be made for the period commencing from 1st June, 2014 to 31st May, 2016 @ Rs.51,418.50/- per month plus service tax.

4. Disputes arose between the parties. It is the case of the Respondent that there was a delay in making payments and various other claims were also raised. The sole arbitrator appointed in the matter passed the arbitral award on 25th January, 2019. The operative portion of the said award reads as under:-

“CONCLUSION:-

1. Claimant is awarded a sum of Rs. 8.49362.72p along with interest at the rate of 12% per annum from the date when the payment became due till January 2016.

2. An amount of Rs. 123404/- is awarded on account of release of performance security.

3. A sum of Rs. 10,000/- is awarded on account of illegal retention of employees of the claimant and;

4. A sum of Rs. 5,000/- is awarded on account of loss of profit.

5. The claimant is awarded pendentlite and future interest at the rate of 6% per annum from the date of filing of the claim till realization of the claim amount. If the payment is not made within three months from the date of award, the claimant shall be entitled to interest at the rate of 8% per annum from the date of award till realization of the awarded amount.

The claimant is awarded litigation expenses also.”

5. The petition under Section 34, challenging the said award, was filed on 6th February, 2020 i.e., after more than one year. The Commercial Court has applied the settled law as laid down by the Supreme Court in Simplex Infrastructure Ltd v. UOI, (2019) 2 SCC 455 and has held that the delay would not be liable to be condoned. Admittedly, the petition under Section 34 was filed after more than 300 days and thus, the petition was dismissed on the ground of delay itself on 22nd January, 2021. The operative portion of order dated 22nd January, 2021 reads as under:-

“09. The judgments relied any ld counsel for petitioner are not applicable u/s 34 of Arbitration and Conciliation Act, 1996 since the same pertain to condonation of delay u/s 5 of Limitation Act.

10. Further, I also agree with the contention of ld counsel for the claimant/respondent that the application does not even justify sufficient cause as the application only states that petition could not be filed in time due to administrative delay and involvement of various government agencies. The petitioner has not even explained the delay due to administrative procedure.

Reliance is placed on judgment of Hon'ble Supreme Court in Simplex Infrastructure Ltd Vs UOI(Supra), wherein it was held that administrative difficulties would not be a valid reason to condone a delay above and beyond the statutory period prescribed u/s 34 of the Act.

Reliance is also placed on judgment passed by Hon’ble Delhi High Court in Bharat Sanchar Nigam Ltd Vs M/s Vindhiya Tel Links Pvt Ltd, OMP(Comm)(503/2019) pronounced on 02.12.2019. In the said case, the application for seeking condonation of delay of 26 days in filing the petition u/s 34 of Act for setting aside the award was filed on the ground of administrative exigencies including the detailed calibrations. The application was dismissed by Hon’ble High Court by placing reliance on the judgment of Hon’ble Apex Court in Simplex Infrastructure Ltd Vs UOI(Supra) and considering the strict and inflexible provisions u/s 34(3) of the Act. It was observed:

“since the petitioner has