In proceedings under Section 34 of the Arbitration and Conciliation Act, it is mandatory for the court to summon and examine the arbitral records to determine if grounds for setting aside an award exist, as these summary proceedings depend on the factual evidence presented before the arbitrator.

JUDGMENT

A. Muhamed Mustaque, C.J.

This appeal was preferred by the Union of India under Section 37(1) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act).

2. In an arbitral award passed by the Hon’ble Justice Pranab Kumar Chattopadhyay, Former Judge of the Calcutta High Court, as the Sole Arbitrator, the Union of India was directed to pay a sum of Rs.23,21,54,534/- (Rupees Twenty-Three Crores Twenty-One Lakhs Fifty-Four Thousand Five Hundred and Thirty-Four only).

3. The Arbitral Tribunal allowed a counterclaim filed by the Respondent herein, who was the contractor engaged by the Union of India for the work of road improvement from Gangtok to Nathula. The contract was entered in the year 2009-10, and the terms of the contract were extended up to 31^st March, 2015. While the counterclaims of the Respondent were allowed, the Tribunal rejected the claims raised by the Union of India.

4. We are not narrating the facts in this appeal, as we propose to remand the matter for fresh consideration by the learned Commercial Court, Gangtok, for reconsideration of the application under section 34 of the Act.

5. The plea of limitation though not taken by the Union Government before the Tribunal, was nevertheless raised before the Tribunal at the time of hearing, as seen from the impugned award of the Tribunal before the learned Commercial Court, Gangtok.

6. In an application under Section 34 before the learned Commercial Court, the ground was specifically raised as follows:-

“..........

X. For that the Ld. Sole Arbitrator had failed to take into consideration that the Respondent had filed time barred counter claims filed by the respondent. The respondent has preferred the counter claim on 14^th September 2022. Admittedly, the respondent had worked till 31^st March 2015. Therefore, cause of action starts from 31^st March 2015 for three years. Also on 28^th March 2017 the respondent writes to the Department that he does not have any claim, meaning thereby there is no dispute contrary to what has been claimed in the counter claim. Therefore, the Ld. Sole Arbitrator has allowed the counter claims which is not only barred by law of limitation but also allowed the counter claim without any disputes as per the letter of Respondent dated 28^th March 2017.

....................”

7. There are reasons stated by the Arbitral Tribunal for overruling the objection on the question of limitation upon appreciating the materials and records available.

8. It is admitted before us that the impugned judgment was passed by the Commercial Court, Gangtok, under section 34 without calling for records from the Arbitrator. We note that an Arbitrator had earlier been appointed; however, the proceedings before the said Arbitrator were not taken to a logical conclusion before the present arbitral award came to be passed by the subsequent Arbitrator. The question is whether the Commercial Court, Gangtok, was justified in overruling the objection on the ground of limitation without calling for the records.

9. There may not be much dispute on the fact that the question of limitation is not required to be expressly pleaded as a defense. If, on the face of the records, the Court can take note of the plea of limitation and if it can arrive at a conclusion that it is barred by limitation, it can very well reject