JUDGMENT

I.A.2285/2013 (for delay)

1. The present petition has been filed by the petitioner challenging the award dated 19.9.2012. Along with the said petition, the petitioner has also filed an application for condonation of delay in refiling the petition. It is submitted in the said application that petition was filed on 9.11.2012 which was returned with objection on

16.11.2012. Since then the petition has been under objection time and again with different objections including for retyping of a large number of annexures and all the objections were diligently removed and the petition was refiled on 15.01.2013. A fresh objection regarding the format of the petition was raised by the registry on 18.1.2013 which has also been removed. It is submitted that the petition was delayed by approximately 48 days. It is submitted that the delay in refiling was neither intentional nor deliberate but due to reasons mentioned above.

2. The application is contested by the respondent who was issued notice of this application. It is submitted that the petition was filed on 9.11.2012. Thereafter it was admittedly refiled on 15.1.2013 and thus there was a delay of two months. It is an admitted fact that there is a delay of 60 days in refiling the petition and not 48 days as contended. It is further submitted that even after 18.1.2013 the refiling has been delayed by more than two weeks as is apparent from the date of attestation of the affidavit. It is denied that the delay in refiling was neither intentional nor deliberate. It is submitted that no justification has been shown in delay in refiling and it is prayed that the application as well as the petition be dismissed being barred by limitation.

3. I have heard the arguments and have considered all the contentions of the learned counsels for the parties.

4. In this case the award is dated 19.9.2012. The petition was first filed on 9.11.2012. The period of limitation prescribed for filing petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’) is 90 days. The proviso to the said section provides that the period of filing of petition under Section 34 can be extended upto a further period of 30 days, if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months. The Supreme Court in the case (2001) 8 SCC 470 titled as Union of India vs. Popular Construction Co. has clearly held as under : 12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are “but not thereafter” used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result.

5. It therefore is a settled principle of law that provisions of Section 5 of the Limitation Act are not applicable to the petition filed under Section 34 of the Act, while calculating the period of limitation for filing of the petition. There is no dispute to the fact that in the present case, the petition was filed within 90 days of period of limitation prescribed under Section 34 (3) of the Act. The award in this case was passed on 19.9.2012 and the petition was filed on 9.11.2012. The petition so filed suffered with defects and registry returned it for removal of defects on 16.11.2012. What happened thereafter, adds to the delay. The sequence of events shows that the petition, which was filed on 9.11.2012, was found “not being filed as per the new format” and it was returned on 16.11.2012 with direction to file the same as per new format. The petition was shown