O.M.P. (COMM) 473/2019 and I.As. 15744-15747/2019

Decided On: 25.11.2019

Appellants: National Highways Authority of India
Respondent: Ssangyong Engineering & Construction Co. Ltd.

Hon'ble Judges/Coram:
V. Kameswar Rao


V. Kameswar Rao, J.

I.As. 15746-15747/2019 (for exemption)

Exemption allowed subject to all just exceptions.

Applications stand disposed of.

O.M.P. (COMM.) 473/2019, I.As. 15744/2019 & 15745/2019

1. The challenge in this petition under Section 34 of the Arbitration and Conciliation Act, 1996, ('Act of 1996', for short) is to an award/interim award dated May 18, 2019 passed by the Arbitral Tribunal whereby the Arbitral Tribunal has allowed the application filed by the respondent herein for grant of two amounts of ` 1,32,79,591/- and ` 92,22,236/-.

2. Mr. Navin Kumar Sinha, learned counsel appearing for the respondent has taken a preliminary objection on the maintainability of the petition on the ground that it is barred by limitation. Hence, the petition needs to be dismissed.

3. This submission of Mr. Navin Kumar Sinha is in view of the fact that the impugned award is dated May 18, 2019 and the period of three months for filing the petition under Section 34 of the Act of 1996, expired on August 18, 2019. Even the further period of 30 days, which period, can be condoned by the Court has also expired on September 23, 2019 and whereas the petition is filed only on November 06, 2019.

4. In support of his submission, he stated that an appeal was filed by the petitioner under Section 37 of the Act of 1996, that too on August 14, 2019. The appeal was returned under objections on August 17, 2019. The objections raised by the Registry, included the petition, be filed in correct category.

5. But it appears that the petitioner pursued the appeal under Section 37 of the Act of 1996. The said appeal was listed before this Court on October 22, 2019 on which date, the learned counsel for the petitioner conceding to the fact that the appeal is not maintainable, withdrew the said appeal. It is thereafter, that the present petition under Section 34 of the Act of 1996 has been filed on November 06, 2019.

6. In substance, it is his submission that the date of award being May 18, 2019, three months have expired on August 18, 2019 and even 30 days thereafter also expired on September 18, 2019. The petitioner despite being notified by the Registry that the petition has to be filed in the correct category i.e. under Section 34 of the Act of 1996 had not corrected the category, and rather pursued the appeal under Section 37 of the Act of 1996, which ultimately was withdrawn on October 22, 2019, hence shall not be entitled to the benefit of Section 14 of the Limitation Act and the petition is liable to be dismissed.

7. On the other hand, Mr. Sudhir Nandrajog, learned Senior Counsel appearing for the petitioner states that the first petition was filed as an appeal under Section 37 of the Act of 1996 on August 14, 2019 and the appeal was pursued by the petitioner till October 22, 2019, when the counsel appearing for the petitioner withdrew the appeal as was not maintainable. As, between August 14, 2019 and October 22, 2019, the petitioner, was prosecuting a wrong remedy, it shall be entitled to the benefit of Section 14 of the Limitation Act, 1963 and if that period is excluded, the petition filed by the petitioner on November 06, 2019 is within limitation.

8. Mr. Navin Kumar Sinha contest the submission made by Mr. Sudhir Nandrajog by reiterating his submissions and by relying upon the judgment in the c........