TMI Blog2023 (4) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod during which Court is closed is available only when application for setting aside the award is filed within prescribed period of limitation and it is not available in respect of period extendable by the Court in exercise of its discretion. No application for setting aside the arbitral award was made before elapse of three months from the receipt thereof. Three months from the date of receipt of the award expired on 26.11.2003. The District Court had Christmas vacation for the period from 25.12.2003 to 01.01.2004. On reopening of the Court i.e. on 02.01.2004, the appellants made application for setting aside the award under Section 34 of the Arbitration Act. Now, so far as reliance placed upon Section 10 of the General Clauses Act, 1897 on behalf of the appellant is concerned, at the outset it is required to be noted that such a contention is untenable in light of the proviso to Section 10 of the General Clauses Act, 1897, which specifically excludes the application of Section 10 of the General Clauses Act, 1897 to any act or proceeding to which the Indian Limitation Act, 1877 applies. Reference to 1877 Act will now have to be read as reference to Limitation Act, 1963 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onwards in terms of the proviso to Section 34(3) which was upto 24.12.2016. 2.2 The trial Courts were closed on account of winter / Christmas vacations from 19.12.2016 to 01.01.2017. However, it so happened that extendable / condonable period of 30 days as contemplated in the proviso to Section 34(3) expired on 24.12.2016 on which day the trial Court was closed on account of winter / Christmas vacation. The appellant herein filed the application under Section 34 of the Arbitration Act, challenging the award passed by the Arbitral Tribunal. The appellant also filed IA No.1 for condonation of delay. Both, Section 34 application as well as the application for condonation of delay were filed on the reopening day i.e. on 02.01.2017. As the application under Section 34 of the Arbitration Act was beyond the prescribed period of provided under Section 34 of the Arbitration Act as well as beyond the condonable period of 30 days, the learned trial Court dismissed the IA No.1 and refused to condone the delay by observing that the period beyond 120 days is not condonable as under the Arbitration Act, maximum period provided for preferring an application under Section 34 is 120 days. At thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of condonable period of 30 days falls on a holiday or during a court vacation, would the benefit of Section 10 of the General Clauses Act, 1897 would be available to the appellant? 4.2 It is submitted that in other words, can the petitioner appellant file the application on the next date when the Court reopens, in line with the settled principle that the law does not compel a person to do an impossible act. It is submitted that in the present case the petitioner appellant had filed the application under Section 34 on the very day when the Court reopened. 4.3 It is submitted by Shri Shyam Diwan, learned Senior Counsel that not extending the benefit of Section 10 of the General Clauses Act to the appellant in such circumstances leads to an anomalous situation wherein the benefit of statutorily prescribed condonable period is cut Civil Appeal No. 6810 of 2022 Page 7 of 44 short for some persons due to intervention of a holiday or a court vacation, while being fully available to other persons due to the fortuitous circumstance of no court vacation intervening. It is submitted that this creates uncertainty and unpredictability in the application of provision in question. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that thus, while the term prescribed period has a narrower meaning in the context of Limitation Act, there is no such restrictive definition clause in the General Clauses Act. It is submitted that in fact, the scheme of Section 10 of the General Clauses Act is clear from a bare perusal of the provision and indicates that there are two prescribed periods in this Section viz. (1) the prescribed period within which something is directed to be done, or (2) the prescribed period within which something is allowed to be done. 4.9 It is submitted that therefore, reading of Section 10 of the General Clauses Act, 1897 makes it clear that the period in which something is allowed to be done, such as 30 days condonable period provided by proviso to Section 34(3) of the Arbitration Act is also a prescribed period within the meaning of the General Clauses Act, 1897. 4.10 It is further submitted by Shri Shyam Diwan, learned Senior Counsel appearing on behalf of the appellant that the principle embodied in Section 10 of the General Clauses Act, 1897 is an elementary piece of justice. It is submitted that the 60th Law Commission Report on the General Clauses Act reiterated the parliamentary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n matters of limitation, Section 34 of the Arbitration Act is a complete code. It is submitted that the respondent s entire case, on one hand, is that the benefit of Limitation Act, particularly Section 4 of the Limitation Act, cannot be given to the condonable period in the instant case. It is submitted that therefore on one hand, the respondent is arguing that the benefit of Section 4 of the Limitation Act, as well as Section 5 of the Limitation Act has no application to the condonable period under Section 34 of the Arbitration Act, i.e. the Limitation Act has no application in the present proceedings, at the same time, the respondent is contending that the benefit of Section 10 of the General Clauses Act, 1897 cannot be given to the appellant, as the present proceeding falls within the ambit of the phrase any act or proceeding to which the Indian Limitation Act, 1877, applies . 4.14 It is further submitted by Shri Diwan, learned Senior Counsel that the reliance placed on the case of Sagufa Ahmed Ors. vs. Upper Assam Polywood Products Private Limited and Others reported in (2021) 2 SCC 317 is misconceived for the following two reasons: (1) The reference to Section 10 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application under Section 34 of the Arbitration Act on merits by giving the appellant an opportunity to put forth its case on merits. 5. Present appeal is vehemently opposed by Shri Dhruv Mehta, learned Senior Counsel appearing on behalf of the respondent. 5.1 It is submitted that in the present case the appellant admittedly received the award on 24.08.2016. As per Section 34 of the Arbitration Act, the prescribed period of 3 months to challenge the award expired on 24.11.2016 and further period of 30 days under the proviso to Section 34(3) of the Arbitration Act expired on 24.12.2016. That, the learned trial Court was on winter vacation between 19.12.2016 to 01.01.2017. The appellant preferred its Section 34 of the Arbitration Act before the learned trial Court on 02.01.2017 i.e. on the day of reopening, accompanied by an application seeking condonation of delay. It is submitted that the learned trial Court after considering both, the maintainability and merits of the appellant s application for condonation, has found that the application was not maintainable and also that no sufficient cause had been shown by the appellant. It is submitted that the High Court has upheld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as being the period of limitation computed in accordance with the provisions of the Limitation Act. 5.4 It is submitted that this Court in the case of Assam Urban (Supra) (Paras 10 to 14) has held that prescribed period under Section 34(3) of the Arbitration Act is three months. It is submitted that further period of 30 days mentioned in the proviso to Section 34(3) of the Arbitration Act cannot be said to be the period of limitation and therefore, would not be the prescribed period for the purposes of making an application for setting aside the arbitral award. It is submitted that thus, in the said decision, this Court has categorically held that Section 4 of the Limitation Act which applies only to prescribed period is not attracted when the last date of the further period of 30 days mentioned in Section 34(3) of the Limitation Act falls on a day on which the Court is closed. It is submitted that the facts of the case in Assam Urban (Supra) are identical to the facts of the present case. It is submitted that decision of this Court in the case of Assam Urban (Supra) has been affirmed by Three Judges Bench of this Court in the case of Sagufa Ahmed (Supra) (Paras 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o right to file their application for condonation in situation where the discretionary period expires during vacation and that such interpretation was incorrect inasmuch as it leaves parties at the mercy of fortuitous circumstance , it is submitted that such a submission is not tenable. It is submitted that the Court vacations are notified well in advance and would not account to a fortuitous circumstance as alleged. It is submitted that on the date of receipt of award, the party would be well aware of the limitation period under Section 34(3) of the Arbitration Act and ought to diligently secure its right. It is submitted that in the present case, having received the award on 24.08.2016, the appellant had a further period of 25 days after expiry of prescribed period and before commencement of the winter vacation of the trial Court. However, the petitioner appellant chose not to file its petition during this time and therefore, as to suffer for the inevitable consequences. 5.10 It is further submitted that right under Section 34 of the Arbitration Act is a restricted right to challenge an award on extremely limited ground. The proviso to Section 34(3) of the Arbitration Act f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1897 also uses the term prescribed period . Section 10 of the General Clauses Act, 1897 provides that where any act is directed to be done on a certain day, or any proceeding is allowed to be done in any Court or office within prescribed period, if the Court or office is closed on that certain day, or the last day of the prescribed period, it may be done or taken on the next working day. Accordingly, if Section 10 of the General Clauses Act, 1897 was to be applicable, the term prescribed period must be given the same meaning as that in the Limitation Act. Thus, Section 10 of the General Clauses Act, 1897 will also only then apply for the prescribed period of three months under Section 34(3) of the Arbitration Act and not to the discretionary period of 30 days under the proviso to Section 34(3) of the Arbitration Act. Making above submissions and relying upon the decision of this Court in the case of Assam Urban (Supra) and Sagufa Ahmed (Supra), it is prayed to dismiss the present appeal. 6. Having heard learned Counsel appearing for the respective parties, a short question which is posed for consideration of this Court is whether in the facts and circumstances of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion if during any part of its normal working hours it remains closed on that day. Section 10 of the General Clauses Act, 1897 10. Computation of time. ( 1) Where, by any 47 (Central Act) or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, 48 applies. (2) This section applies also to all 49 (Central Acts) and Regulations made on or after the fourteenth day of January, 1887. (emphasis supplied) 7.1 Section 34(3) of the Arbitration Act and Sections 2(j) and 4 of the Limitation Act, 1963 fell for consideration before this Court in the case of Assam Urban (Supra). Even the very issue raised in the present appeal fell for consideration before this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the period provided in proviso to Section 34(3) and held that an application for setting aside arbitral award under Section 34 of the 1996 Act has to be made within the time prescribed under subsection (3) of Section 34 i.e., within three months and a further period of 30 days on sufficient cause being shown and not thereafter. 9. Section 43(1) of the 1996 Act provides that the 1963 Act shall apply to arbitrations as it applies to proceedings in court. The 1963 Act is thus applicable to the matters of arbitration covered by the 1996 Act save and except to the extent its applicability has been excluded by virtue of the express provision contained in Section 34(3) of the 1996 Act. Before this Court there existed, similar facts like in the present case. In the case before this Court, the arbitral awards were received by the appellants on 26.08.2003. No application for setting aside the arbitral award was made before elapse of three months from the receipt thereof. Three months from the date of receipt of the award expired on 26.11.2003. The District Court had Christmas vacation for the period from 25.12.2003 to 01.01.2004. On reopening of the Court i.e. on 02.01.2004, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 4 of the 1963 Act is not, at all, attracted to the facts of the present case. 15. Seen thus, the applications made by the appellants on 2-1-2004 for setting aside the arbitral award dated 26-8-2003 were liable to be dismissed and have rightly been dismissed by the District Judge, Kamrup, Guwahati, as timebarred. Therefore, as such the question involved in the present appeal is squarely answered against the appellant and the said issue is as such not res integra. 8. Now, so far as the submission on behalf of the appellant that the Limitation Act shall not be applicable to the proceedings under the Arbitration Act is concerned, the aforesaid has no substance. Section 43(1) of the Arbitration Act specifically provides that Limitation Act, 1963 shall apply to arbitrations as it applies to proceeding in Court. However, as observed and held by this Court in the case of Assam Urban (Supra), Limitation Act, 1963 shall be applicable to the matters of arbitration covered by 1996 Act save and except to the extent its applicability has been excluded by virtue of express provision contained in Section 34(3) of the Arbitration Act. 8.1 In the case of Popular Construction Co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application for setting aside award is filed within prescribed period of limitation and shall not be available in respect of period extendable by Court in exercise of its discretion. 10. Now, so far as the reliance placed upon the decision of this Court in the case of Sridevi Datla vs. Union of India reported in (2021) 5 SCC 321 relied upon on behalf of the appellant is concerned, at the outset it is required to be noted that in the said decision, this Court has not noticed the decision in the case of Assam Urban (Supra) and there is no discussion on distinction between prescribed period and the discretionary condonable period . On the other hand, the binding decision of this Court in the case of Assam Urban (Supra) is directly on point. 11. In view of the above and for the reasons stated above, applying the law laid down by this Court in the case of Assam Urban (Supra), it cannot be said that the High Court and the learned III Additional District Sessions Judge, Vijaypur have committed any error in refusing to condone the delay caused in preferring application under Section 34 of the Arbitration and Conciliation Act, 1996 which was beyond the period prescribed under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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