TMI Blog2010 (10) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... f court, without waiting for a formal order of withdrawal of the ‘appeal’ under Section 34 before the wrong forum. Therefore, it cannot be said that filing of the application under Section 34 of the Act on 19.10.2009 was belated. Further if the period spent before wrong forum is excluded, the application is filed within three months and there is no question of explaining any delay. The filing of an application for condonation under a wrong provision of law will not vitiate the application. In fact though the application for condonation of delay was initially filed under Section 5 of Limitation Act, that was subsequently replaced by an application under Section 34(3) of the Act, and again by an application under Section 34(3) of the Act read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for condonation of the delay in filing the application under Section 34 of the Act. On 29.10.2009, they filed an application before the High Court for withdrawal of the appeal and the High Court permitted them to withdraw the appeal on 30.10.2009 on the ground that it was not maintainable with an observation that the question of condonation of delay will be considered by the District Court, Kamrup before which the application had to be filed. The appellants took back the application for condonation filed under a wrong provision of law (Section 5 of Limitation Act) and filed an application under Section 34(3) of the Act on 3.11.2009. At the hearing of the said application on 21.12.2009, as the court was of the view that application should h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re there is jurisdiction for applying Section 14 of Limitation Act, the period of limitation will continue to be three months (subject to extension under the proviso to subsection (3) of Section 34 of the Act) but in computing the limitation period of three months for the application under Section 34(1) of the Act, the time during which the applicant was prosecuting the matter bonafide and with due diligence before the wrong court will have to be excluded. 4. In this case the Award was passed on 6.2.2009. The petition under Section 34 before the District Court was filed on 19.10.2009. The appeal before the wrong forum was filed on 6.5.2009 and withdrawn on 30.10.2009. If the appellants are able to demonstrate that they were bona fide an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o whether the application under Section 34 of the Act had to be filed in the District Court only after the withdrawal of appeal under Section 34 of the Act before the High Court, or whether the withdrawal and filing of fresh application under Section 34 of the Act should be simultaneous, or whether to avoid delay, the application under Section 34 of the Act should be filed in the District Court immediately even before the application for withdrawal could be moved before the High Court. In fact the appellants demonstrated their diligence and bona fides by filing the application under Section 34 of the Act on 19.10.2009 itself immediately on reopening of court, without waiting for a formal order of withdrawal of the appeal under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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