In a recent judgment delivered by the Delhi High Court viz. Govt. of NCT of Delhi vs. Y.D Builders and Hotels, it has been held that inordinate delays in filing petitions for setting aside of arbitral awards cannot be condoned even if the litigator is the Government. The below mentioned discussion may be noted in this regard.
The provisions of Section 34(3) Act are unambiguous, the Court may entertain a petition for setting aside the award even after three months provided the petitioner was prevented by sufficient cause from filing the petition within a period of three months. However, the Court cannot entertain a petition after 30 days of the expiry of the initial period of three months.
In Delhi Development Authority v. M/s. Durga Construction Co: 2013 (139) DRJ 133, a division bench of the Delhi High Court had considered the question as to whether the Court can condone the delay in re-filing beyond 120 days. Although, the Court held that the Court would have the jurisdiction to condone the delay in re-filing, however, it also cautioned that this power cannot be exercised liberally in view of the provisions of the Act and the legislative intent to ensure that all the proceedings are concluded expeditiously. The relevant extract of the above decision is set out as under:
“Thus, in our view a Court would have the jurisdiction to condone delay in re-filing even if the period extends beyond the time specified in Section 34(3) of the Act. However, this jurisdiction is not to be exercised liberally, in view of the object of the Arbitration and Conciliation Act to ensure that arbitration proceedings are concluded expeditiously. The delay in re-filing cannot be permitted to frustrate this object of the Act. The applicant would have to satisfy the Court that it had pursued the matter diligently and the delays were beyond his control and were unavoidable. In the present case, there has been an inordinate delay of 166 days and in our view the appellant has not been able to offer any satisfactory explanation with regard to the same. A liberal approach in condoning the delay in re-filing an application under Section 34 of the Act is not called for as it would defeat the purpose of specifying an inelastic period of time within which an application, for setting aside an award, under Section 34 of the Act must be preferred.”
Petitions under Section 34 of the Act have to be filed within the period of three months of receipt of the arbitral award and the Court has no jurisdiction to condone the delay in re-filing of the petition beyond 30 days. Thus, the legislative object of the Section 34(3) of the Act is to ensure that the petitions for setting aside the award are taken up expeditiously. This object cannot be allowed to be frustrated by condoning inordinate delays in re-filing. Further even though the Court has the jurisdiction to condone delay in re-filing the petition, the same cannot be exercised oblivious of the discipline of Section 34(3) of the Act.
In Delhi Transco Ltd. & Anr. v. Hythro Engineers Pvt. Ltd., 2012 (6) R.A.J. 299 (Del), a Division Bench of Delhi High Court had held as under:
“However, what is to be borne in mind by the Court is that the limitation period is limited by the Act to three months, which is extendable, at the most, by another thirty days, subject to sufficient cause being disclosed by the petitioner to explain the delay beyond the period of three months. Therefore, it cannot be that a petitioner by causing delay in re-filing of the objection petition, delays the re-filing to an extent which goes well beyond even the period of three months & thirty days from the date when the limitation for filing the objections begins to run. If the delay in re-filing is such as to go well and substantially beyond the period of three months and thirty days, the matter would require a closer scrutiny and adoption of more stringent norms while considering the application for condonation of delay in refiling, and the Court would conduct a deeper scrutiny in the matter. The leniency shown and the liberal approach adopted, otherwise, by the Courts in matter of condonation of delay in other cases would, in such cases, not be adopted, as the adoption of such an approach by the Court would defeat the statutory scheme contained in the Act which prescribes an outer limit of time within which the objections could be preferred. It cannot be that what a petitioner is not entitled to do in the first instance, i.e. to file objection to an award beyond the period of three months & thirty days under any circumstance, he can be permitted to do merely because he may have filed the objections initially within the period of three months, or within a period of three months plus thirty days, and where the refiling takes place much after the expiry of the period of three months & thirty days and, that too, without any real justifiable cause or reason.”
The Supreme Court in the case of Office of The Chief Post Master General & Ors. v. Living Media India Ltd. & Anr. : (2012) CLT 338 (SC) : II (2012) SLT 312 : (2012) 3 SCC 563, held as under:
“In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.”
