Jharkhand High CourtThe State Of Jharkhand Through The vs Anil Sharma on 11 October, 2018Author:Aparesh Kumar SinghBench:Aparesh Kumar SinghIN THE HIGH COURT OF JHARKHAND AT RANCHI
                     Arbitration Appeal No. 12 of 2017
                                     .....1.    The State of Jharkhand through the
          Principal Secretary, Rural Development.2.    The Engineer-in-Chief, Rural Engineering
          Organisation (REO), Ranchi.                --- --- ---- Appellants
                                     Versus
    Anil Sharma                                      --- --- --- Respondent---CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh

           For the Appellant         : Mr. Atanu Banerjee, G.A.
                                       Mr. Anjani Nandan, A.C. to G.A.
           For the Respondent        : Mr. Rahul Kumar, Adv.
                                       Ms. Apoorva Singh, Adv.
                                      ---

09/11.10.2018    Heard learned counsel for the parties.Award dated 8th December, 2013 rendered by the sole Arbitrator
    appointed by this Court was made subject matter of challenge in
    Miscellaneous Case No. 08 of 2014 before learned Civil Judge (Sr. Division)
    No. -I, Ranchi by the petitioner-State of Jharkhand and its official.
    Claimant/respondent herein had raised a dispute under different Heads in
    respect of Agreement no. JHWB-0502 dated 20th December, 2005 for
    construction and maintenance of rural road from REO Road to Raksha;
    Baniyari More to Baniyari and Manthakeso More to Mathakeso in Saraiyahat
    Block in the district of Dumka. After contest Award was delivered by the sole
    Arbitrator holding that State of Jharkhand is liable to pay under different
    Heads for a total amount of Rs. 43,46,749.73 Paise from 1.1.2010. Award was
    received by the parties on the same date i.e., 8th December, 2013. Application
    under Section 34 was filed before learned Court of Civil Judge (Sr. Division)
    No. -I, Ranchi on 26th March, 2014 i.e., beyond 3 months period stipulated
    underSection 34(3)of the Arbitration and Conciliation Act, but before expiry
    of further 30 days period therefrom. In effect, it was filed within 120 days.
    The application suffered from several defects which were cured before the
    matter was taken up on 30th January, 2017 by learned Court when the order
    impugned was passed.Applicant/petitioner herein filed a petition for condonation of
    delay of 17 days beyond 90 days period in preferring the application on 1 st-2-September, 2014 invokingSection 5of the Limitation Act. Another
application for condonation of delay also underSection 5of the Limitation
Act was filed on 27th January, 2015. Section 34 application and two limitation
petitions are part of the affidavit containing preliminary objection filed herein
on behalf of respondent/claimant on 11th April, 2018. Learned Civil Judge
considered the prayer for condonation of delay as also certain defects which
were pointed out by Shristedar earlier and observed that filing of subsequent
application for condonation of 90 days delay and the defective affidavit
outside the court premises showed non-seriousness of the State with regard to
the present Award. Learned Court did not stop at that but ventured to enter
into the merits of the challenge of the Award as well. It referred to Section 34
and the grounds provided under Section 342 (b) (i)and also went on to
observe that the applicant had taken a ground which was with regard to the
mental process in interpretation of evidence of the learned arbitrator which
cannot be seen by the Court because it is not a court of appeal of Arbitrator.
Sufficiency of evidence cannot be proved in application under Section 34 to
nullify the Award. Miscellaneous Application was dismissed both with
observation in relation to merits of the challenge and delay in preferring the
application. Learned Court while dismissing the Miscellaneous Application
held as under:"Thus, in view of the aforesaid discussions, it is found by this court
             that no public policy is being affected by the award which has been
             passed by the learned arbitrator on 08.12.2013 in arbitration
             application case no. 31/09. Therefore, it is found and held that the
             objector have got no substantial ground for admission of the
             application. The petitioner undersection 5of the Limitation Act is not
             worth acceptance in view of the established provision of law and
             therefore, application filed by the applicants undersection 34of the
             Arbitration and Conciliation Act 1996 for setting aside the arbitration
             award dated 08.12.2013 failed and not admitted and the Misc. case
             stands dismissed."Rival arguments have been made by learned counsel for the
parties to question the impugned order and in support thereof. Learned
counsel for the appellant has argued that learned Court has exceeded in its
jurisdiction in rendering a composite order both on the grounds of delay and
on the merits of the challenge. If the application was not entertainable on
failing to show sufficient cause for condonation of delay, learned Court should
not have ventured into merits of the grounds raised to challenge the Award.-3-Learned counsel submits that application under Section 34 was
filed beyond 90 days but within 120 days from the date of receipt of Award
which fact is not in dispute. It is also not in dispute that an application for
condonation of 17 days delay was filed on 1st September, 2014 taking specific
grounds to explain the delay as the file had moved in the official hierarchy and
after approval was granted the application was filed. Learned Court has not
applied its mind to the cause shown by the petitioner and there is no
discussion on that point.Learned counsel for the petitioner submits that the explanation
shown by the applicant ought to have been properly considered as it was
sufficient to explain the delay. Leaned Court ought not to have been guided by
nomenclature of the application underSection 5of the Limitation Act, if the
substance of the application was properly considered. Nomenclature of the
application for condonation of delay was not at all attributable to the
applicant, but may be an error in drafting by learned lawyer which should not
have prejudiced the case of the petitioner from consideration on the
substantive grounds taken for condonation of delay. Filing of a subsequent
application for condonation of delay was also unnecessary act which may be
based on improper legal advise, for which the applicant should not have been
made to suffer. Learned Court was required to consider whether the grounds
taken are sufficient to explain the delay in filing this application after 90 days
of the delivery of the Award but before 120 days thereof. It is not a case
where the application under Section 34 was filed after 120 days of receipt of
the Award. Award imposes huge liability upon the State. Since the delay has
not been considered by the learned Court properly, it has entailed grave
prejudice to the case of the petitioner. Technicalities of procedure should not
have come into the way in deciding the case on merits when there was a delay
of only 17 days beyond 90 days in filing 34 application. Time consumed in
curing the defects pointed out by Shristedar also should not be taken to the
disadvantage of the applicant if defects were cured when the matter was taken
up. As such, the impugned order deserves to be set aside for reconsideration
by learned Court on merits.-4-Learned counsel for the claimant/respondent herein has seriously
opposed the prayer. He submits that learned Court had duly applied its mind
to the application for condonation of delay filed by the petitioner and found its
overall conduct as non-serious for the reasons recorded therein. There were
certain fundamental defects in the application. Such as absence of signature;
required affidavit was not sworn at the Civil Court, Ranchi; verification of
application was also not there. It was not in compliance with Rule 202 of
Civil Court Rules whereunder the provisions of Civil Procedure Code have
been made applicable. The requirement of Order-VI, Rules 14 and 15 relating
to verification had not been complied with. Learned counsel further submits
that non-seriousness of the applicant was writ large in the manner in which
the application under Section 34 was filed without accompanying delay
condonation petition.Delay condonation petition was filed twice first on 1 st
September, 2014 and then second on 27th January, 2015 seeking condonation
of 17 days delay in first instance and 90 days in second instance. Those
applications were filed underSection 5of the Limitation Act. Provisions ofSection 5of Limitation Act are not applicable in a proceeding underSection
34of Arbitration and Conciliation Act, 1996. Reliance is placed on the case ofUnion of India Vs. Popular Construction Co.reported in (2001) 8 SCC 470
in support of the aforesaid contention. Since the provision itself contains
limitation of 30 days beyond 90 days in filing such an application and no
more, delay beyond that is condonable.Learned counsel for the respondent has furtherplaced reliance
uponthe judgment of Hon'ble Supreme Court in the case ofConsolidated
Engineering Enterprises Vs. Principal Secretary, Irrigation Department and
othersreported in (2008)7 SCC 169, in support of his submission that there is
no applicability ofSection 5of Limitation Act in condoning the delay in filing
an application underSection 34of Arbitration and Conciliation Act, 1996.
Learned counsel submits that if the application for condonation of delay was
not accompanied with 34 application then mere filing of such application was
no filing in the eye of law. Learned counsel for the respondent submits that
the provisions of Order 41 would also be applicable to the case at hand. If the
application for condonation of delay has been filed much beyond the
period   of 120 days by the applicant, then the requirement of law as-5-contemplated underSection 34of the Act is not made out. He submits that the
applicant has not been diligent in prosecuting the application before learned
Court. Learned Civil Court has rightly rejected the application. Learned Court
has only made reference to the provisions under Section 34 which contains
the grounds on which such a challenge can be made to award. The order
impugned does not show any more discussion on the merits of the grounds of
challenge. In substance, the application was dismissed on grounds of delay
and non-applicability ofSection 5of Limitation Act.I have considered the submissions of learned counsel for the
parties and the grounds urged in the facts and circumstances of the case noted
above.Here is a case where parties do not dispute the factual position
that an application under Section 34 was filed before the competent court of
learned Civil Judge (Senior Division) No.1, Ranchi after 17 days beyond the
three months period stipulated underSection 34(3)of the Arbitration and
Conciliation Act but before the expiry of the further 30 days period there
from. In effect it was filed within 120 days from the date of receipt of the
award dated 8th December 2013. Parties also do not dispute that the defects in
the application were cured before the matter was taken up by learned Civil
Judge on 30th January 2017 and the order impugned was passed. It is also not
in dispute that application for condonation of 17 days delay was filed on 1 st
September 2014 but underSection 5of the Limitation Act 1963. For wholly
inexplicable reasons another application for condonation of delay of 90 days
was filed by the applicant/appellant herein on 27 th January 2015 again underSection 5of the Limitation Act. The application dated 1 st September 2014
seeking condonation of delay of 17 days sought to explain the delay through
its averments in the following manner :-"2.    That the applicant has not filed any other limitation for the
                condonation of delay which has occurred in filing the instant
                appeal.3.     That it is submitted that the award under challenge was passed on
                08.12.13 and the copy of the award was handed over to the
                counsel for the respective parties on the same date.4.     That it is submitted that after the passing of the award the counsel
                for the State informed the Executive Engineer, Dumka regarding
                the passing of the said award.5.     That the Executive Engineer, Dumka obtained a copy of the said
                award on 15.12.13 from the counsel for the State.-6-6.     That the Executive Engineer, Dumka went through copy of the
             award and forwarded the same to the Superintending Engineer,
             Dumka Division on 22.12.13.7.     That through the proper channel the copy of the award was
             forwarded to the Principal Secretary, Rural Works Department in
             the first week of January 2014.8.     That after going through the file the Principal Secretary of the
             Department asked for the entire file relating to the arbitration
             case which was placed before the Principal Secretary on
             20.01.14. That during this time the Principal Secretary of the
             Department was busy with regard to the preparation of the
             Republic Day and hence consultation with the Principal Secretary
             of the Department could not take place.9.     That it is noteworthy that since the matter related to Dumka
             meeting with the Principal Secretary could take place only when
             the Executive Engineer came down to Ranchi from Dumka. This
             took considerable time. Due to heavy work load it was not
             possible for the Executive Engineer to come down to Ranchi every
             now and then.10.    That in the first week of February the Principal Secretary of the
             Department held a meeting with the Executive Engineer and
             before giving any decision the Principal Secretary of the
             Department asked for the entire file relating to the dispute.11.    That the file was requisitioned from Dumka and was handed over
             to the Principal Secretary of the Department on 17.02.14.12.    That on 28.02.14 the Principal Secretary handed over the file
             back to the Executive Engineer with a direction to make
             preparation for filing an appeal underSection 34of the
             Arbitration and Conciliation Act, 1996.13.    That on 03.03.14 the Executive Engineer, Dumka contacted his
             advocate at Ranchi and instructed him to file an application
             underSection 34of the Arbitration and Conciliation Act, 1996.14.    That before drafting the memo of appeal to be filed under the Act
             the counsel for the appellants wanted to go through the entire file.
             However, since certain documents were not on record, he called
             for the same. These documents were obtained from Dumka and
             handed over to the counsel on 12.03.14.15.    That thereafter the memo of appeal was drafted and handed over
             to the Executive Engineer on 20.3.2014. Before filing the memo of
             appeal it was necessary to get the approval of the Principal
             Secretary of the Department. The Principal Secretary after going
             through the memo of appeal suggested certain changes on
             22.03.14.16.    That after incorporating the changes the memo of appeal was
             filed on 25.03.14. Thus, a delay of about 17 days has occurred in
             filing the said appeal.17.    That the delay in preferring the appeal has occurred inadvertently
             and due to reasons beyond the control of the appellants."The explanation furnished by the applicant cannot be said to be
perfunctory or casual. The delay was of 17 days only. The movements of file-7-had been graphically explained by the applicant to explain delay. The learned
court has however not dealt with the specific explanation furnished by the
applicant in the order impugned. Naming of a wrong provision in a delay
condonation application could not be attributed to the applicant but was an
error on the part of the counsel drafting the same. This error on its own should
not have weighed upon the court to reject the prayer, though the delay was
only 17 days beyond 90 days and the application was within 120 days period
prescribed underSection 34(3)of the Act of 1996. Filing of another
application for condonation of delay of 90 days underSection 5of the
Limitation Act was again an error which cannot be attributed to the applicant
but on poor draftsmanship. If the explanation is considered, the delay appears
to have been properly explained. Wrong mentioning or non-mentioning of a
provision should not invalidate an order passed by a court and/or statutory
authority if it had requisite jurisdiction therefor. In the case of P.K.
Palanisami Vrs. N. Arumugham reported in (2009) 9 SCC 173, the Apex
Court at paragraphs-27 to 29 of the report held as under :-"27. Section 148 of the Code is a general provision and Section
      149 thereof is special. The first application should have been filed in
      terms of Section 149 of the Code. Once the court granted time for
      payment of deficit court fee within the period specified therefor, it would
      have been possible to extend the same by the court in exercise of its power
      under Section 148 of the Code. Only because a wrong provision was
      mentioned by the appellant, the same, in our opinion, by itself would not
      be a ground to hold that the application was not maintainable or that the
      order passed thereon would be a nullity. It is a well-settled principle of
      law that mentioning of a wrong provision or non-mentioning of a
      provision does not invalidate an order if the court and/or statutory
      authority had the requisite jurisdiction therefor.28.InRam Sunder Ram v. Union of Indiait was held: (SCC pp.
      260-61, para 19)
             "19. ... It appears that the competent authority has wrongly quotedSection 20in the order of discharge whereas, in fact, the order of
         discharge has to be read having been passed underSection 22of the
         Army Act.'9. It is well settled that if an authority has a power under the
             law merely because while exercising that power the source of
             power is not specifically referred to or a reference is made to a
             wrong provision of law, that by itself does not vitiate the exercise of
             power so long as the power does exist and can be traced to a
             source available in law.' (See N. Mani v. Sangeetha Theatre, SCC
             p. 280, para 9.)
                 Thus, quoting of wrong provision ofSection 20in the order of
             discharge of the appellant by the competent authority does not take-8-away the jurisdiction of the authority underSection 22of the Army
          Act. Therefore, the order of discharge of the appellant from the army
          service cannot be vitiated on this sole ground as contended by the
          learned counsel for the appellant."29. In N. Mani v. Sangeetha Theatre it is stated: (SCC p. 280, para 9)
             "9. It is well settled that if an authority has a power under the law
          merely because while exercising that power the source of power is not
          specifically referred to or a reference is made to a wrong provision of
          law, that by itself does not vitiate the exercise of power so long as the
          power does exist and can be traced to a source available in law."The respondent herein has based his submission on the point of
delay on the judgment of the Apex Court in the case ofPopular Construction
Co.(supra). On perusal of the judgment in the case of Popular Construction
Co. it is evident that the factual positionin that casewas that if theLimitation
Act1963 and in particularSection 5did not apply toSection 34of the Act of
1996, then the objection to the award was time barred and appeal was bound
to be dismissed. The awardin that casewas made by the arbitrator on 29th
August 1998. Under the impression that theArbitration Act1940 applied, the
original award was forwarded to the appellant with a request to file the award
in the Bombay High Court so that a decree could be passed in terms of the
award under the provisions of theArbitration Act, 1940. The award was
accordingly filed by the appellant in the Bombay High Court on 29th March
1999. The appellant filed an application challenging the award on 19 th April
1999 underSection 30read withSection 16of the Arbitration Act, 1940.
Subsequently, the application was amended by inserting the words
"Arbitration and Conciliation Act, 1996" in place of "Arbitration Act, 1940".
The application was dismissed by the learned Single Judge on 26 th October
1999 on the ground that it was barred by limitation under Section 34 of the
1996 Act. The Division Bench rejected the appeal and upheld the findings of
the learned Single Judge. In this context the question which arose for
determination was whether the provisions ofSection 5of the Limitation Act,
1963 were applicable to an application challenging an award underSection 34of the Arbitration and Conciliation Act, 1996. The Apex Court held in
categorical terms that in view of the specific provisions contained in Section
34 Sub-section (3),Section 5of the Limitation Act, 1963 was not applicable
to proceeding under Section 34 for setting aside arbitral award. The words
"but not thereafter" used in the proviso to sub-section (3) amounts to an-9-express exclusion within the meaning ofSection 29(2)of the Limitation Act.
          This could be inferred from history, scheme and objectives of the 1996Arbitration Act, one of whose main objectives is to restrict judicial
          intervention in arbitral matters as much as possible.In the present case the application for setting aside the award
          under Section 34 was not filed after 120 days from the date of receipt of the
          award. If it had been filed after 120 days from the date of receipt of the award,
          the delay was uncondonable by resort to the provision ofSection 5of the
          Limitation Act. In the instant case the application was within time though
          condonation of delay application was filed later on under a wrong provision
          i.e.Section 5of the Limitation Act, 1963. Mere wrong mentioning of the
          provision could not denude the jurisdiction and power of the learned court
          below to condone the delay if the explanation was sufficient and the main
          application was filed within the period of 120 days from the date of receipt of
          the award. As such theratiolaid down inthe case of Popular Construction
          does not apply to facts of the present case. Had the provision ofSection 5of
          the Limitation Act not been mentioned in the application for condonation of
          delay, could it be still said that the Court did not have power to condone the
          delay if it was properly explained. The learned court has, therefore, committed
          an error in law in rejecting the application. It has also erroneously made
          observation on merits while rejecting application on the ground of delay. For
          both the reasons, the order impugned cannot be sustained in the eye of law.
          However, it needs to be mentioned that much more diligence was required on
          the part of the appellant in prosecuting the challenge before the Court of
          learned Civil Judge-1, Ranchi. As per their own case, the award imposes huge
          liability of Rs.43.46 lakhs together with 18% interest from the date of the award.For the reasons recorded herein above, the impugned order is set
          aside. The appeal is allowed with cost of Rs. 50,000/- to be paid to the
          respondents within a period of four weeks. The matter is remanded to the
          learned court of Civil Judge (Senior Division) No.1, Ranchi for deciding the
          case on merits in a time bound manner. Parties are required to cooperate. In
          order to ensure that adjudication is not further delayed, the parties are directed
          to appear before the Court on 20 th November 2018 when the learned court
          would take up the matter.(Aparesh Kumar Singh, J.)
Shamim/