The benefit of excluding time under the law of limitation for proceedings initiated in a wrong forum is contingent upon the applicant demonstrating due diligence and bona fide conduct. Challenging an order of return for lack of jurisdiction, rather than re-filing, negates the claim for such exclusion.

JUDGMENT :

MD. SHABBAR RASHIDI, J.

1. The appeal under Section 37 of the Arbitration and Conciliation Act, 1996 is in assailment of impugned judgment and order dated March 2, 2020 passed in A.P. No. 74 of 2019, G.A. No. 399 of 2019.

2. By the impugned judgment and order, the learned Single Judge rejected the challenge to the arbitral award dated February 28, 2018 and dismissed A.P. No. 74 of 2019 on the ground that challenge under Section 34 of the Act of 1996 was filed after the expiry of the time period prescribed under Section 34 (3) of the Act of 1996. The learned Trial Judge held that:

“It is not in dispute that the respondents filed the application under Section 29A of the Act of 1996, before a Co-ordinate Bench of this Court, for extension of time for making the award by the Arbitrator. By order dated September 05, 2017 a Co-ordinate Bench of this Court, in presence of the petitioner, extended the time to make and publish the award of the Arbitrator. A copy of the said order has been disclosed by the respondents in their affidavit and from a reading thereof, it is evident that the petitioner did not raise any objection to the jurisdiction of this Court to entertain the said application. Further, the petitioner accepted the said order dated September 05, 2017 and thereafter participated in the arbitral proceeding conducted by the Arbitrator. In the application filed in Misc. Case No.298 of 2018 before the learned District Judge at Alipore, the petitioner did not challenge the impugned award on the ground that the order dated September 05, 2017 passed by this Court was without jurisdiction and consequently, the impugned award made by the Arbitrator after termination of his mandate which took place before passing of the said order is also without jurisdiction and void. In the application filed in Misc. Case No.298 of 2018 the petitioner had not at all mentioned about the filing of the said application under Section 29A of the Act of 1996 before this Court or passing of the said order dated September 05, 2017 by a Co-ordinate Bench of this Court. For all the forgoing reasons, I unable to convince myself to accept that the petitioner had prosecuted the said Misc. Case No. 298 of 2018 before the learned District Judge at Alipore with due diligence or in good faith. Thus, the petitioner cannot claim benefit of Section 14 of the Limitation Act, 1963. In the facts of the present case the decision of the Supreme Court in Modern Construction & Company (supra) is of no assistance to the petitioner. Accordingly, the application A.P. No.74 of 2019 filed by the petitioner for setting aside of the impugned award, beyond the period of the time stipulated in sub-Section (3) of Section 34 of the Act 1996 read with the Proviso thereto cannot be entertained and the same stands rejected.”

3. It is submitted on behalf of the appellant that the impugned judgment and order was passed without application of judicial mind and is erroneous in law. The same was passed in complete ignorance of the legal propositions governing the field. Learned advocate for the appellant submitted that the learned Trial Court came to an erroneous finding that the appellants did not pursue Misc. Case No. 298 of 2018 under Section 34 of the Arbitration and Conciliation Act, 1996 as well as C.O. No. 3328 of 2018 in good faith and with due diligence, as such, the appellant was n