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2020 Supreme(Mad) 2192 ; 2020 Supreme(Mad) 2239
IN THE HIGH COURT OF MADRAS
M. Sundar, J.
The General Manager, Southern Railway and Ors. – Appellants
Versus
Eagle-Omega and KR and Co. (JV) – Respondent
A. No. 9150 of 2019 in O.P. (D). No. 128930 of 2019 and O.P. (D). No. 128930 of 2019
Decided On : 01-10-2020
Advocate Appeared:
For the Appellant : P.T. Ramkumar, Standing Counsel
For the Respondent: R. Murari, Senior Counsel for K.K. Murralitharan
Headnote:
Arbitration and Conciliation Act, 1996 - Section 34 - Arbitral award – Setting aside of - OP has been filed assailing an 'arbitral award made by an 'Arbitral Tribunal' constituted by a sole Arbitrator and it is an application under Section 34 of Act, 1996 - Said OP has been presented in this Court with captioned application with a prayer to condone, what according to applicants, is 30 days delay in filing said OP - Held, Post disposal of Section 34 application also, an intra-court appeal has been provided under Section 37 of A and C Act, but only for very limited kind of orders with a clear embargo by way of a negative connotation 'and from no others' within parenthesis. Sub-section (3) of Section 37 makes it clear that no second appeal shall lie from an order passed in an appeal under Section 37 - Above statutory scheme of A and C Act should be read in the context of Section 35 of A and C Act, which provides for finality of arbitral awards and Section 5 of A and C Act, which makes it clear that there shall be minimum judicial intervention - This has been borne in mind in testing captioned delay condonation application - Application dismissed.
ORDER :
M. Sundar, J.
1. Aforementioned 'Original Petition' i.e., O.P. (D). No. 128930 of 2019 (Filing Number), shall hereinafter be referred to as ' said OP' for the sake of convenience and clarity.
2. Aforementioned said OP has been filed assailing an 'arbitral award dated 10.06.2019' (hereinafter 'impugned award' for the sake of brevity) made by an 'Arbitral Tribunal' ('AT' for the sake of brevity) constituted by a sole Arbitrator and it is an application under Section 34 of 'The Arbitration and Conciliation Act, 1996 (Act 26 of 1996)', which shall hereinafter be referred to as 'A and C Act' for the sake of brevity.
3. Aforementioned said OP has been presented in this Court on 14.10.2019 with the captioned application i.e., A. No. 9150 of 2019 with a prayer to condone, what according to the applicants, is 30 days delay in filing said OP.
4. In this order, from hereon 'Applicants' shall be collectively referred to as 'Southern Railways' and 'sole respondent' shall be referred to as 'Contractor', for the sake of convenience and clarity.
5. This Court is informed without any disputation or disagreement that there is an 'agreement dated 08.10.2009' (hereinafter 'said contract' for the sake of brevity) between Southern Railways and Contractor for gauge conversion work in Mayliaduthurai-Thiruvarur-Karaikudi sector and some construction between Mayliaduthurai-Thiruvarur Railway Stations.
6. Owing to the nature and limited scope of the captioned application which this Court is now concerned with, suffice to say that there is a arbitration clause in the said contract, arbitral disputes inter alia touching upon reduction of vitiation amounts from running bills, price variation clause etc., erupted between Southern Railways and Contractor, AT was constituted, AT made the impugned award after full contest, Southern Railways has chosen to lay challenge to the impugned award vide OP on hand and it is not necessary to dilate further on facts.
7. To be noted, applications under Section 34 of A and C Act challenging arbitral awards are given the nomenclature 'Original Petition' in this Court. As already mentioned supra, said OP was presented in this Court on 14.10.2019 by the Southern Railways with the captioned application i.e., Application No. 9150 of 2019 with a prayer to condone, what according to Southern Railways is 30 days delay in filing said OP. Captioned application is resisted by the contractor primarily on the ground that delay sought to be condoned cannot be construed as 30 days, it is more than 30 days and therefore it is not condonable owing to the rigour of proviso to sub-section (3) of Section 34 of the A and C Act. This is the crux and gravamen of the disputation/contest in captioned application.
8. In the light of the controversy in the captioned application, this Court deems it appropriate to give relevant undisputed dates by way of a tabulation and the same is as follows:
| Sl.No. | Event | Date/s |
| 1 | Impugned award made | 10.06.2019 |
| 2 | Impugned award received by Southern Railways | 13.06.2019 |
| 3 | ‘Prescribed period’ of three months vide sub-section (3) of Section 34 of A and C Act is to be reckoned from (excluding date of receipt of impugned award) | 14.06.2019 |
| 4 | Madras High Court closed for Dussehra vacation | 05.10.2019 to 13.10.2019 (Both dates inclusive) |
| 5 | Said OP assailing impugned award presented in this Court on | 14.10.2019 |
9. Before proceeding further, it is necessary to mention that in the counter affidavit filed by the contractor, it has inter alia been contended that three months prescribed period under sub-section (3) of Section 34 should be computed from the date of receipt of the award i.e., 13.06.2019, but on this Court pointing out that in Himachal Techno Engineers case [Himachal Pradesh and Another Vs. Himachal Techno Engineers and another reported in (2010) 12 SCC 210]
