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2012 (11) TMI 880 - CALCUTTA HIGH COURTCondonation of Delay of 108 days in filing of Application - for setting aside of Contract - held that:- Time was the essence of the contract. The Railways were not prepared to deliver the goods(scrap).Hence it committed breach. Even then the learned arbitrator directed delivery of the goods within thirty days from the date of publication of the award simultaneously upon payment and in default thereof the sale would stand cancelled. There is no need to make any comment on the merits of the objection raised by the Railways in its application for setting aside. Section 34(3) of the 1996 Act was clear and unambiguous. It restricted the power of the court to consider an application for condonation of delay if it was filed within thirty days after expiry of the stipulated period and “not thereafter”. In the present case, from the pleadings no case made out by the Union of India, either before the arbitrator or this court. Mr. Chatterjee would seek leave from us to amend his application for setting aside - not to grant such leave at this belated stage that would cause immense prejudice to the respondent - Plea of fraud was conspicuously absent at all stages. It was nothing but an attempt made at the bar that would not inspire us to extend the scope of the appeal - dismissal of appeal would foreclose the opportunity to challenge the award - unable to accede to the prayer of the Union of India - appeal fails and is hereby dismissed.
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