As per case facts, an Arbitral Award was passed, which the appellants sought to challenge under Section 34 of the Arbitration Act, initially filing it at Karnal. However, the Karnal ...
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
2+23 CM-110-FCARB-2025 in/and
FAO-24-2024 (O&M)
Reserved on: 25.08.2025
Pronounced on : 23.09.2025
Union of India through Chief Engineer and others
...Appellants
Versus
M/s Ram Avtar Gupta
...Respondent
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
HON'BLE MR. JUSTICE VIKAS SURI
Present: Mr. Ashish Chaudhary, Advocate for the appellants.
Mr. Wazir Singh, Advocate for the applicant/respondent.
*****
VIKAS SURI, J.
1. The challenge in the present appeal is to the order dated
21.02.2024 passed by the learned Additional District Judge-cum-
Presiding Judge, Exclusive Commercial Court at Gurugram, exercising
jurisdiction under the Commercial Courts Act, 2015 (hereinafter referred
to as ‘the Commercial Courts Act’), whereby two applications, one under
Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure,
1908 (for short ‘CPC’) and the other application under Section 14 and
Section 5 of the Limitation Act, 1963, were disposed of by a common
order. The former application has been allowed whereas the latter has
been dismissed.
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2. Learned counsel for the appellants submits that an Arbitral
Award dated 03.08.2019 came to be passed by the sole Arbitrator, arising
from agreement No.17/EE/KCD/2010-11, regarding shed for 200
(150+50) milch animal with automatic feeding, cleaning, milking and data
recording system at CIRB Hisar, including internal electrical installation.
2.1 The appellants moved an application before the Court of
learned District Judge, Karnal under Section 34 of the Arbitration and
Conciliation Act, 1996 (hereinafter referred to as ‘the Arbitration Act’)
for setting aside of the arbitral award dated 03.08.2019 (supra). The said
objection petition was opposed by the respondent-contractor. The learned
Additional District Judge, Karnal, vide order dated 03.07.2023 (Annexure
A-3), ordered return of the objections under Section 34 of the Arbitration
Act, for want of territorial jurisdiction.
2.2 The appellants, after receipt of the original objection petition
on 01.09.2023, presented the same before the Commercial Court at
Gurugram on 11.09.2023. On re-filing the objection petition under
Section 34 of the Arbitration Act, the same has been contested by the
respondent-contractor by filing reply, wherein certain preliminary
objections have been raised.
2.3 The main bone of contention being that re-filing of the supra
objections before the Commercial Court at Gurugram was beyond the
prescribed limitation and hence, the same were barred by law. On the
same lines, an application under Order 7 Rule 11 CPC was also filed
stating that the petition was liable to be rejected. The appellants filed
reply to the said application and thereafter, moved an application under
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Section 14 and Section 5 of the Limitation Act, 1963 (for short ‘the
Limitation Act’) stating that the objection petition under Section 34 of the
Arbitration Act was returned by the learned Court at Karnal, for want of
jurisdiction, thus, prayer was for exclusion of the time consumed in the
said proceedings, while computing the period of limitation for re-filing
the said objection petition before the competent Court at Gurugram.
2.4 It is further the case of the appellants that on the same date,
the execution petition with similar cause title was also pending before the
said Court at Karnal. The clerk of the counsel of the appellants came to
know about the date of the case, having been adjourned to 02.08.2023.
When the counsel for the appellants appeared on the said date, it
transpired that the objection petition had already been ordered to be
returned for presentation to the competent Court at Gurugram having
jurisdiction in the matter, vide order dated 03.07.2023. Copy of the order
dated 03.07.2023 was obtained on the same day and the Additional
Solicitor General of India was approached with the request to mark the
matter to the Central Government Standing Counsel before this Court.
The record of the case was handed over to the appointed counsel on
16.08.2023, who vide his opinion dated 26.08.2023, sent by e-mail,
advised to present the matter before the learned District Judge, Gurugram,
in terms of order dated 03.07.2023.
2.5 Thereafter, Additional Solicitor General of India was again
approached, who marked the case to the Standing Government Counsel at
District Gurugram, vide e-mail dated 28.08.2023. The entire record was
handed over to the said counsel, who re-filed the objection petition under
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Section 34 of the Arbitration Act before the competent Court at
Gurugram, on 11.09.2023. It is, thus, pleaded that the time spent before
the Courts at Karnal, which did not have jurisdiction, be excluded under
Section 14 of the Limitation Act and the delay, if any, be condoned under
Section 5 of the Act ibid.
2.6 The aforesaid application, inter alia, seeking condonation of
delay, was contested by the respondent by filing reply, wherein certain
preliminary objections have been raised regarding maintainability of the
application. It is pleaded that the appellants have filed the petition under
Section 34 of the Arbitration Act before the Court concerned at Gurugram
after a delay of 1413 days from the date of passing of the award, i.e.
03.08.2019 and hence, cannot be permitted to avail benefit of Sections 14
and 5 of the Limitation Act.
2.7 The learned Additional District Judge, Karnal, after
considering the pleadings and the rival contentions raised by both the
parties, dismissed the application under Sections 14 and 5 of the
Limitation Act and accordingly, partly accepted the application under
Order 7 Rule 11 CPC for rejection of the petition, vide impugned order
dated 21.02.2024.
3. Learned counsel for the appellants has strenuously contended
that the principles enshrined under Section 14 of the Limitation Act can
be applied even when Section 5 of the said Act is not applicable. Reliance
is placed upon the decision of the Hon’ble Supreme Court in M.P. Steel
Corporation vs. Commissioner of Central Excise, 2015(3) RCR (Civil)
965. Learned counsel for the appellants would further refer to the
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averments made in the application under Section 14 and Section 5 of the
Limitation Act to contend that on coming to know on 02.08.2023, of
passing of the order dated 03.07.2023, whereby the objection petition was
ordered to be returned for being presented before the Court of competent
jurisdiction, the matter was immediately taken up with the learned
Additional Solicitor General of India, who marked it to the Central
Government Standing Counsel. The record of the case was handed over to
the said counsel on 16.08.2023 and vide e-mail dated 26.08.2023, an
opinion was received to present the matter before the learned District
Judge, Gurugram as per the order dated 03.07.2023. The said opinion was
accepted and acted upon and the Additional Solicitor General was again
approached vide e-mail dated 26.08.2023 for assigning the matter to the
Standing Government Counsel, District Gurugram. The matter was,
thereafter, entrusted to the Standing Government Counsel before the
District Court, Gurugram, vide e-mail dated 28.08.2023 and the record
was handed over to the said counsel, who re-filed the objection petition on
11.09.2023. Thus, there is no delay on the part of the appellants.
3.1 It is further contended on behalf of the appellants that the
limitation period under the Arbitration Act is condonable. Reference is
made to the decision in Government of Maharashtra (Water Resources
Department) represented by Executive Engineer vs. M/s Borse Brothers
Engineers & Contractors Pvt. Ltd, reported in (2021) 6 SCC 460.
4. Per contra, learned counsel for the respondent has defended
the impugned order dated 21.02.2024. It is strongly refuted that Section 5
as well as Section 14 of the Limitation Act are not applicable beyond the
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‘prescribed period’ of limitation for making an application seeking setting
aside an arbitral award. Reliance is placed upon the decisions of
Coordinate Benches rendered in FAO-CARB-39-2018 decided on
23.10.2018 titled as M/s Gurgaon Packaging Pvt. Ltd. and another vs.
M/s Scholastic India Pvt. Ltd., 2018:PHHC:122310-DB and in FAO-
CARB-29-2022 titled as State of Punjab vs. Makhan Lal and another,
reported in 2023(1) PLR 171. It is submitted that in both the aforesaid
decisions, the law settled by the Hon’ble Supreme Court in M/s Simplex
Infrastructure Ltd. vs. Union of India, reported in (2019) 2 SCC 455 and
in Union of India vs. M/s Popular Construction Co., reported in (2001) 8
SCC 470, has been applied and followed. It is further submitted that
though the objection petition under Section 34 of the Arbitration Act was
initially filed within the prescribed period of limitation of three months,
but before a Court that did not have jurisdiction, i.e. the Court at Karnal.
The objection petition was correctly ordered to be returned, vide order
dated 03.07.2023. The said petition was presented before the Court of
competent jurisdiction at Gurugram, only on 11.09.2023. Therefore, after
expiry of the period of three months, which at best could have been
extended by the Court in exercise of its judicial discretion by another 30
days, the objection petition was time barred and has been rightly rejected
by the Court concerned. It is further submitted that there is no infirmity in
the impugned order dated 21.02.2024, passed by the learned Additional
District Judge-cum-Presiding Judge, Exclusive Commercial Court at
Gurugram, exercising jurisdiction under the Commercial Courts Act.
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5. We have heard learned counsel for the parties and perused
the record with their able assistance.
6. The factual aspect is not in dispute. Admittedly, the award
published on 03.08.2019 was received by the appellants/objector on
06.08.2019 and the objection petition was filed before the learned District
Judge, Karnal, within the prescribed period of limitation under Section 34
of the Arbitration Act. It is also conceded that the said petition was
ordered to be returned vide order dated 03.07.2023, which was collected
from the Court concerned at Karnal on 01.09.2023 and re-filed before the
competent Court at Gurugram, on 11.09.2023.
7. The questions that arise in the present case for consideration
are (i) whether in the peculiar facts and circumstances of the present case,
the appellants are entitled to exclusion of time during which they have
been prosecuting the objection petition under Section 34 of the Arbitration
Act before the Court at Karnal, which Court was not able to entertain it
for want of territorial jurisdiction; and (ii) whether Section 5 of the
Limitation Act would apply to the period of 30 days prescribed under the
proviso to Section 34 (3) of the Arbitration Act.
8. To appreciate the issue arising in the present appeal in its
correct perspective, it would be necessary to refer to the provision that
prescribes the period of limitation regarding the objection petition under
Section 34 of the Arbitration Act, as well as the interplay of the two
statues involved, i.e. the special law vis a vis the general law, viz. the
Arbitration Act and the Limitation Act.
8.1. Section 34 of the Arbitration Act, reads as thus:-
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34. Application for setting aside arbitral
award.—(1) 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).
(2) x x x x x
(2A) x x x x
(3) An application for setting aside may not be
made after three months have elapsed from the date on
which the party making that application had received the
arbitral award or, if a request had been made under
section 33, from the date on which that request had been
disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the
applicant was prevented by sufficient cause from making
the application within the said period of three months it
may entertain the application within a further period of
thirty days, but not thereafter.
9. A perusal of the aforesaid provision would show that the
period of limitation prescribed for making an application for setting aside
the award under Section 34 of the Arbitration Act is three months. The
proviso to Section 34 (3) carves out an exception that on the applicant
showing sufficient cause for not making the application within the said
period of three months, the Court on being satisfied of the aforesaid, may
entertain the application within a further period of 30 days, but not
thereafter.
9.1 Section 14 of the Limitation Act provides that in computing
the period of limitation for any suit, the time during which the applicant
has been prosecuting with due diligence another civil proceeding shall be
excluded, where the proceedings relates to the same matter in issue and is
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prosecuted in good faith in a Court, which is unable to entertain it for
want of jurisdiction or other cause of a like nature.
10. A similar issue, regarding the interplay of the limitation
provided under sub-section 3 of Section 34 of the Arbitration Act and the
applicability of Section 4 of the Limitation Act, was considered by the
Hon’ble Supreme Court in Civil Appeal No.2014 of 2006 decided on
19.01.2012 titled as Assam Urban Water Supply and Sewerage Board vs.
Subash Projects and Marketing Limited, reported in (2012) 2 SCC 624.
The relevant portion of the said judgment reads as thus:-
“11. The question, therefore, that falls for our
determination is whether the appellants are entitled to
extension of time under Section 4 of the 1963 Act in the
above facts?
12. Section 4 of the 1963 Act reads as under:
“4. Expiry of prescribed period when court
is closed.—Where the prescribed period for any
suit, appeal or application expires on a day when
the court is closed, the suit, appeal or application
may be instituted, preferred or made on the day
when the court reopens.
Explanation.—A court shall be deemed to
be closed on any day within the meaning of this
section if during any part of its normal working
hours it remains closed on that day.”
The above section enables a party to institute a suit, prefer
an appeal or make an application on the day the court
reopens where the prescribed period for any suit, appeal
or application expires on the day when the court is closed.
13. The crucial words in Section 4 of the 1963 Act
are “prescribed period”. What is the meaning of these
words?
14. Section 2(j) of the 1963 Act defines:
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“2. (j) ‘period of limitation’ [which] means
the period of limitation prescribed for any suit,
appeal or application by the Schedule, and
‘prescribed period’ means the period of limitation
computed in accordance with the provisions of this
Act;”
Section 2(j) of the 1963 Act when read in the context of
Section 34(3) of the 1996 Act, it becomes amply clear that
the prescribed period for making an application for setting
aside an arbitral award is three months. The period of 30
days mentioned in the proviso that follows sub-section (3)
of Section 34 of the 1996 Act is not the “period of
limitation” and, therefore, not the “prescribed period” for
the purposes of making the application for setting aside
the arbitral award. The period of 30 days beyond three
months which the court may extend on sufficient cause
being shown under the proviso appended to sub-section
(3) of Section 34 of the 1996 Act being not the “period of
limitation” or, in other words, the “prescribed period”, in
our opinion, Section 4 of the 1963 Act is not, at all,
attracted to the facts of the present case.”
11. It is trite law that the provisions of “special law” would
prevail over those under the “general law”. It is notable that the period of
limitation to file an application under Section 34 of the Arbitration Act is
prescribed in that provision itself and being special limitation, it would
override the general limitation under the Limitation Act. The proviso to
Section 34 (3) of the Arbitration Act is worded in a manner, which
expressly prohibits grant of any further time than that which is specified
in the said proviso, itself. It is undisputable that the Arbitration Act is a
special law and Section 34 of the Arbitration Act provides for a period of
limitation different from that prescribed under the Limitation Act. Section
29 (2) of the Limitation Act further provides that where any special or
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local law prescribes a period of limitation different from the period
prescribed by the schedule to the Limitation Act, the provisions of Section
3, prescribing the bar of limitation, are to apply as if such period were the
“period prescribed” by the schedule and for the purposes of determining
the period of limitation by any special or local law, the provisions
contained in Sections 4 to 24 (inclusive) shall apply only insofar as and to
the extent to which, they are not expressly excluded by such special or
local law. As already noticed hereinabove, the proviso to Section 34 (3) of
the Arbitration Act creates a restriction on entertaining a petition under
Section 34 of the Act ibid, beyond a period of 30 days after the expiry of
the prescribed period of three months. Meaning thereby that the delay in
filing the objection petition under Section 34 of the Arbitration Act, after
the stipulated period of three months and further 30 days allowed on
sufficient cause being shown to the Court, cannot be extended any further.
Therefore, on account of the applicability of the provision of Section 29
(2) of the Limitation Act in the present situation, the provisions contained
in Sections 4 to 24 of the Limitation Act shall not apply to the period
beyond that prescribed under the main provision of Section 34 (3) of the
Arbitration Act, i.e. after expiry of three months. Thus, the benefit of
Section 14 of the Limitation Act would not be available to the appellants,
after the expiry of the prescribed period of limitation, i.e. three months.
12. The Hon’ble Supreme Court, in the decision rendered in
Popular Construction Company’s case (supra), held that Section 5 of the
Limitation Act is not applicable to the proceedings under Section 34 of
the Arbitration Act for setting aside arbitral award. The words “but not
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thereafter” in proviso to sub-section 3 amount to an express exclusion
within the meaning of Section 29 (2) of the Limitation Act. The relevant
portion of the said judgment is reproduced hereunder:-
“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.
13. Apart from the language, “express exclusion”
may follow from the scheme and object of the special or
local law:
“[E]ven in a case where the special law does not
exclude the provisions of Sections 4 to 24 of the
Limitation Act by an express reference, it would
nonetheless be open to the court to examine whether
and to what extent the nature of those provisions or
the nature of the subject-matter and scheme of the
special law exclude their operation.”
14. Here the history and scheme of the 1996 Act
support the conclusion that the time-limit prescribed
under Section 34 to challenge an award is absolute and
unextendible by court under Section 5 of the Limitation
Act. The Arbitration and Conciliation Bill, 1995 which
preceded the 1996 Act stated as one of its main objectives
the need “to minimise the supervisory role of courts in the
arbitral process” [Para 4(v) of the Statement of Objects
and Reasons of the Arbitration and Conciliation Act,
1996]. This objective has found expression in Section 5 of
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the Act which prescribes the extent of judicial
intervention in no uncertain terms:
“5. Extent of judicial intervention.—
Notwithstanding anything contained in any other
law for the time being in force, in matters governed
by this Part, no judicial authority shall intervene
except where so provided in this Part.”
15. The “Part” referred to in Section 5 is Part I of
the 1996 Act which deals with domestic arbitrations.
Section 34 is contained in Part I and is therefore subject to
the sweep of the prohibition contained in Section 5 of the
1996 Act.
16. Furthermore, Section 34(1) itself 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 grounds for setting aside an
award and is not relevant for our purposes. But an
application filed beyond the period mentioned in Section
34, sub-section (3) would not be an application “in
accordance with” that sub-section. Consequently by virtue
of Section 34(1), recourse to the court against an arbitral
award cannot be made beyond the period prescribed. The
importance of the period fixed under Section 34 is
emphasised by the provisions of Section 36 which provide
that
“where the time for making an application to set
aside the arbitral award under Section 34 has
expired … the award shall be enforced under the
Code of Civil Procedure, 1908 in the same manner
as if it were a decree of the court”.
This is a significant departure from the provisions of the
Arbitration Act, 1940. Under the 1940 Act, after the time
to set aside the award expired, the court was required to
“proceed to pronounce judgment according to the award,
and upon the judgment so pronounced a decree shall
follow” (Section 17). Now the consequence of the time
expiring under Section 34 of the 1996 Act is that the
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award becomes immediately enforceable without any
further act of the court. If there were any residual doubt
on the interpretation of the language used in Section 34,
the scheme of the 1996 Act would resolve the issue in
favour of curtailment of the court's powers by the
exclusion of the operation of Section 5 of the Limitation
Act.”
The above reproduced part of the judgment shows that question (ii),
formulated in paragraph 7 hereinabove, is no longer res integra, and
stands authoritatively determined by the Apex Court.
13. The aforesaid view has been reiterated by a three
judge-Bench of the Hon’ble Supreme Court in Civil Appeal No.4028 of
2020 decided on 11.02.2021 titled as Chintels India Limited vs. Bhayana
Builders Private Limited, reported in (2021) 4 SCC 602, wherein it has
been held that Section 5 of the Limitation Act does not apply to objections
under Section 34 of the Arbitration Act. The relevant observations in para
11 of the said judgment read as thus:-
“11. A reading of Section 34(1) would make it
clear that an application made to set aside an award has to
be in accordance with both sub-sections (2) and (3). This
would mean that such application would not only have to
be within the limitation period prescribed by sub-section
(3), but would then have to set out grounds under sub-
sections (2) and/or (2-A) for setting aside such award.
What follows from this is that the application itself must
be within time, and if not within a period of three months,
must be accompanied with an application for condonation
of delay, provided it is within a further period of 30 days,
this Court having made it clear that Section 5 of the
Limitation Act, 1963 does not apply and that any delay
beyond 120 days cannot be condoned.”
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14. In a recent judgment rendered by the Hon’ble Supreme Court
in Civil Appeal No.336 of 2025 decided on 10.01.2025, titled as My
Preferred Transformation and Hospitality Private Limited and another
vs. Faridabad Implements Private Limited, reported in (2025) 6 SCC
481, the Hon’ble Supreme Court was examining the issue whether the
benefit of the additional 30 days under the proviso to Section 34 (3) of the
Arbitration Act, which expired during the vacation, can be given when the
petition is filed immediately after reopening, in exercise of power under
Section 4 of the Limitation Act. After noticing a plethora of judgments
relevant to the issue, their Lordships of the Apex Court summarized the
current position of law while highlighting certain concerns with the
current legal position and their conclusion, as under:-
“Summarising the current position of law
40. From the reasoning and decisions in the above
cases, the following conclusions evidently follow:
40.1. First, Section 4 of the Limitation Act applies
to Section 34(3) of the ACA.
40.2.Second, Section 4 of the Limitation Act
benefits a party only when the “prescribed period” i.e. the
3-month limitation period under Section 34(3) expires on
a court holiday. In such a situation, the application under
Section 34 will be considered as having been filed within
the limitation period if it is filed on the next working day
of the Court.
40.3. Third, Section 4 of the Limitation Act does
not come to the aid of the party when the 3-month
limitation period expires on a day when the Court was
working. The 30-day condonable period expiring during
the court holidays will not survive and neither Section 4,
nor any other provision of the Limitation Act, will inure
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to the benefit of the party to enable filing of the Section
34 application immediately after reopening.
40.4. Fourth, since Section 4 of the Limitation Act
applies to proceedings under Section 34 of the ACA, the
applicability of Section 10 of the GCA stands excluded in
view of the express wording of its proviso that excludes
the applicability of the provision when the Limitation Act
applies.
Highlighting certain concerns with the current legal
position
41. Before parting with this judgment, we find it
necessary to express certain difficulties with the current
position of law. In our view, the above construction of
limitation statutes is quite stringent and unduly curtails a
remedy available to arbitrating parties to challenge the
validity of an arbitral award. This must be addressed by
Parliament.
41.1. The purpose of reading the Limitation Act
alongside the ACA is not to restrict the special remedy
under the ACA, but to enable exercise of such remedy in
circumstances as contemplated under the Limitation Act.
In this context, Section 29(2) of the Limitation Act
becomes relevant as it incorporates Sections 4 to 24 of the
Limitation Act in special statutes, including the ACA, to
the extent that its provisions are not expressly excluded.
41.2. The language of Section 34(3) read with its
proviso does not expressly or impliedly exclude Section 4
of the Limitation Act and this interpretation is in
consonance with the important principle contemplated
under Section 29(2) to protect rights and remedies. This
Court has already recognised the applicability of Section 4
of the Limitation Act.
41.3. The substantive remedies available under
Sections 34 and 37 of the ACA are, by their very nature,
limited in their scope due to statutory prescription. It is
therefore necessary to interpret the limitation provisions
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liberally, or else even the limited window available to
parties to challenge an arbitral award will be lost. The
remedy under Section 34 is precious, and courts will keep
in mind the need to secure and protect such remedy while
applying limitation provisions. [Kirpal Singh v. Union of
India, (2024) 19 SCC 401 : 2024 SCC OnLine SC 3814,
para 10] If this limited remedy is denied on stringent
principles of limitation, it will cause great prejudice and
has the effect of (a) denying the remedy, and (b) in the
long run, it will have the effect of dissuading contracting
parties from seeking resolution of disputes through
arbitration. This is against public policy.
41.4. However, the difficulty arises as the
judgments affirming the applicability of Section 4 of the
Limitation Act equate the expression “prescribed” in that
section and Section 29(2) of the Limitation Act only with
the main period of limitation (3 months). The problem
with this construction is that the special law i.e. Section
34(3) of the ACA, along with its proviso does not
prescribe the period of limitation in the manner that a
period is specified in the Schedule to the Limitation Act.
The statutorily prescribed period under Section 34(3) of
the ACA is 3 months, and an additional 30 days. In our
opinion, it will be wrong to confine the period of
limitation to just 3 months by interpreting it as the
“prescribed period” and excluding the balance 30 days
under the proviso to Section 34(3) as not being the
prescribed period through a process of interpretation.
41.5. The purpose of applying the Limitation Act
to special laws is to vest in the court the power to exercise
discretion or to grant the benefit of exclusion. In such
cases, when the Limitation Act applies, the discretion of
the court as contemplated under its provisions,
commencing from Sections 4 to 24, must be given full
effect. In this light, the additional period of 30 days
specifically provided under the ACA loses its efficacy and
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purpose, and becomes untenable due to the current
position of law. This takes us to a fundamental question as
to the meaning of “express exclusion” of certain
provisions of the Limitation Act by the ACA. In Popular
Construction [Union of India v. Popular Construction
Co., (2001) 8 SCC 470] , the Court came to the
conclusion that Section 34(3) proviso “impliedly”—as
against the specific expression “expressly” in Section
29(2) of the Limitation Act—excludes Section 5 of the
Limitation Act.
41.6. Once the Court commenced disapplying
provisions of the Limitation Act to the ACA on the
ground of implied exclusions, it is only a matter of
interpretation to include or exclude provisions from
Sections 4 to 24 of the Limitation Act on a case-to-case
basis. Thus, for example, while the Court held that
Sections 5 and 17 of the Limitation Act are excluded from
Section 34(3), it came to the conclusion that Sections 4,
12, and 14 of the Limitation Act are applicable. In a way,
the applicability of provisions from Sections 4 to 24 of the
Limitation Act and the manner in which they apply are at
the doorstep of the Court, rather than being determined by
a clear and categorical statutory prescription. This is
perhaps the reason why Parliament has used the
expression “express exclusion” in Section 29(2) of the
Limitation Act. We are conscious of the fact that it is too
late in the day to hold that “express exclusion” will not
include implied exclusion. It is for the legislature to take
note of this position and bring about clarity and certainty.
We say no more, for the overbearing intellectualisation of
the Act by courts has become the bane of Indian
arbitration.
Conclusion
42. For the reasons set forth above, the application
preferred by the appellant under Section 34 of the ACA
stands dismissed as it was filed beyond the condonable
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period of 30 days, which conclusively and absolutely
expired on 28-6-2022.”
15. Learned counsel for the appellants has also raised an
argument that the provisions of Section 14 of the Limitation Act would be
applicable to the period of limitation provided under Section 34 (3) of the
Arbitration Act, even if the same does not apply to the extended period of
30 days provided in the proviso to sub-section 3.
16. To examine the aforesaid argument, it would be gainful to
notice a few dates, which are tabulated hereunder:-
1. Date of passing of the impugned award by
the Arbitrator
03.08.2019
2 Date of receipt of the arbitral award by the
appellants/objector
06.08.2019
3. Date of filing of petition under Section 34 of
the Act at Karnal
24.10.2019
4. The original period of limitation for filing the
aforesaid petition expired on
02.11.2019
5. Date of return of the petition by the Karnal
Court
03.07.2023
6 Date of actually collecting the petition from
the Karnal Court
01.09.2023
7. Date of filing of the petition before
Gurugram Court
11.09.2023
8. Date of filing application U/o 7 Rule 11 CPC 06.11.2023
9. Date of reply to the said application 29.11.2023
10. Date of moving application under Sections
14 and 5 of the Limitation Act
07.12.2023
11. Petition under Section 34 of the Arbitration
Act remained pending at Karnal from
24.10.2019 to 30.07.2023
1344 days
12. Total number of days from the date of
publication of the arbitral award till date of
re-filing the objection petition before the
Gurugram Court, i.e. from 03.08.2019 to
19.09.2023 (4Y-01M-04D)
1494 days
17. A perusal of the aforesaid timelines would show that the
objection petition was filed before the learned Court at Karnal on
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24.10.2019, i.e. when 12 days were still remaining for the period of
limitation prescribed under Section 34 of the Arbitration Act, to expire. It
has already been held that the provisions contained in Sections 4 to 24 of
the Limitation Act are not applicable to the proviso to Section 34 (3) of
the Arbitration Act. Thus, even if the benefit of Section 14 of the
Limitation Act is applied to the present case, the same would not be of
any help to the appellants, as the delay, despite excluding the entire period
of proceedings before the Court at Karnal, would still remain beyond the
maximum period prescribed, i.e. beyond 30 days after the expiry of three
months from the date of receipt of the arbitral award. For elucidation,
even after excluding the period by granting the benefit under Section 14
of the Limitation Act, the delay would still remain of 150 days as depicted
in the under calculation:-
1494 – 1344 = 150 days
18. In the case at hand, keeping in view the settled legal position
discussed hereinabove, there is no denial to the fact that the objection
petition under Section 34 of the Arbitration Act was presented before the
Court at Gurugram beyond the period of limitation prescribed under
Section 34 (3), as well as beyond the further period of 30 days extendable
in terms of the proviso to sub-section 3 of Section 34 of the Arbitration
Act, and is thus time barred.
19. Learned counsel for the appellants has failed to point out any
material on record to demonstrate that any steps were timely taken to
collect the original petition from the Karnal Court, after passing of the
order dated 03.07.2023 or even as per the case set up by them when the
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said order came to their knowledge on 02.08.2023. The objection petition
is stated to have been collected only on 01.09.2023. Even otherwise, in
the light of the law recently laid down by the Hon’ble Supreme Court in
Special Leave to Petition (C) No.9580 of 2025 decided on 15.04.2025
titled as Jharkhand Urja Utpadan Nigam Ltd. vs. Bharat Heavy
Electrical Limited, reported in 2025 SCC Online SC 910, wherein it was
held that the parties cannot indefinitely cause delay by citing non delivery
of copy of judgment without proactive efforts to procure the same. The
position with regard to collecting the original petition, on being ordered to
be returned by the Court under Order 7 Rule 10 CPC would be no
different. In the aforesaid decision, it was held as under:-
“14. Thus, when this Court in Housing Board,
Haryana (supra) held that the limitation for challenging
the same would begin from the date of such
communication, the same would be applicable only where
despite best of efforts at the end of the parties in procuring
the order the same could not be obtained and thereby
resulting in unavoidable delay in the filing of appeals.
One of the core tenets of the law of limitation is to
enthuse diligence amongst parties as to their rights. The
law of limitation cannot be read in such a manner
whereby parties stop showing any modicum of regard for
their own rights and on the pre-text of untimely
communication continue to litigate without being
vigilante themselves.
15. Similarly, we find that the reliance by the
appellants on the decision of Sagufa Ahmed (supra) is also
misplaced. In the said case, this Court while considering
Section 421 sub-section (3) of the Companies Act,
2013 held that the period of limitation prescribed therein
would start running only from the date on which a copy of
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the order is made available to the person aggrieved.
However, yet again in the said case, the appellants therein
had made some efforts to procure a certified copy of the
order to be assailed during the period of limitation.
xxxxx
18. Thus, merely because Order XX Rule I enjoins a
duty upon the commercial courts to provide the copies of
the judgment that does not mean that the parties can shirk
away all responsibility of endeavoring to procure the
certified copies thereof in their own capacity. Any such
interpretation would result in frustrating the very
fundamental cannons of law of limitation and the salutary
purpose of the Act, 2015 of ensuring timely disposals.”
20. Even before this Court and during the course of hearing,
learned counsel for the appellants has failed to show that the appellants
had made any proactive efforts to timely procure the original petition
from the Karnal Court. Moreover, it was the bounden duty of the
appellants to collect the said petition for being presented before the Court
of competent jurisdiction, i.e. the Gurugram Court. Hence, the appellants
can avail of no benefit on the ground that the original petition was
actually collected on 01.09.2023, by which time, the petition had been
rendered time barred, even if the period of proceedings before the Karnal
Court is excluded by granting the benefit of Section 14 of the Limitation
Act.
21. As an argument in despair, learned counsel for the appellants
submits that in the case of re-filing, the aforesaid circumscription would
not apply. Since the initial filing was within the period of limitation, as
specified under Section 34 (3) of the Arbitration Act, the re-filing beyond
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the prescribed period cannot be treated as one in which the Court lacks
jurisdiction to condone the delay. Reliance is placed upon the Division
Bench decision of the Hon’ble High Court of Delhi in FAO(OS)
(COMM) 81/2020 decided on 19.12.2023 titled as Union of India vs.
M/s Panacea Biotec Limited, 2023:DHC:9474-DB. A careful reading of
the said judgment would show that the said case was regarding re-filing of
the Section 34 objection petition in the same Court, after removing the
discrepancies pointed out by the Registry. In the case at hand, the factual
position is much different. It is not a case of re-filing simpliciter before
the same Court but re-presentation of the petition before the competent
Court having jurisdiction in the matter. In the case of re-filing in this
Court, the period for re-filing is specifically provided under the High
Court Rules and Orders and as such, cannot be confused with presentation
of the petition on being returned under the provision of Order 7 Rule 10
CPC, as in the present case. The decision in M/s Panacea Biotec’s case
(supra) is, as such, distinguishable on facts and not applicable to the case
at hand.
22. Last but not the least, reliance of the appellants on M/s Borse
Brothers’ case (supra) is ill-founded. In the said decision, their Lordships
of the Apex Court were examining the application of Section 5 of the
Limitation Act to the Commercial Courts Act regarding the period of
limitation for preferring an appeal under Section 13 (1-A) of the Act ibid.
The provision providing for limitation under Section 34 (3) of the
Arbitration Act is different from the one that was under consideration in
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the aforesaid decision and has been specifically noticed in para 34 of the
said judgment. The relevant portion of the judgment reads as under:-
“32. Thus, from the scheme of the Arbitration Act
as well as the aforesaid judgments, condonation of delay
under Section 5 of the Limitation Act has to be seen in the
context of the object of speedy resolution of disputes.
33. The bulk of appeals, however, to the appellate
court under Section 37 of the Arbitration Act, are
governed by Section 13 of the Commercial Courts Act.
Sub-section (1-A) of Section 13 of the Commercial Courts
Act provides the forum for appeals as well as the
limitation period to be followed, Section 13 of the
Commercial Courts Act being a special law as compared
with the Limitation Act which is a general law, which
follows from a reading of Section 29(2) of the Limitation
Act. Section 13(1-A) of the Commercial Courts Act lays
down a period of limitation of 60 days uniformly for all
appeals that are preferred under Section 37 of the
Arbitration Act.
34. The vexed question which faces us is whether,
first and foremost, the application of Section 5 of the
Limitation Act is excluded by the scheme of the
Commercial Courts Act, as has been argued by Dr
George. The first important thing to note is that Section
13(1-A) of the Commercial Courts Act does not contain
any provision akin to Section 34(3) of the Arbitration Act.
Section 13(1-A) of the Commercial Courts Act only
provides for a limitation period of 60 days from the date
of the judgment or order appealed against, without further
going into whether delay beyond this period can or cannot
be condoned.”
23. No other issue has been raised.
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24. In summa, learned counsel for the appellants has failed to
point out any illegality or perversity in the impugned order or any binding
precedent contrary to the ones noticed above.
25. Accordingly, the instant appeal being bereft of merit, is
dismissed.
26. As the main appeal is being disposed of on merits, no
separate orders are warranted in the application (CM-110-FCARB-2025)
for vacation of stay, which is disposed of accordingly.
27. Pending miscellaneous applications, if any, also stand closed.
(HARSIMRAN SINGH SETHI) (VIKAS SURI)
JUDGE JUDGE
23.09.2025
sumit.k
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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