2017 (8) TMI 1439 - HC - Indian Laws

Condonation of delay of 247 days in filing the petition - exclusion of time taken in refiling the petition - Section 34 of the Arbitration and Conciliation Act, 1996 - Held that - Re-filing the application/petition without accompanying the application for condonation of delay, as provided in H.P. High Court Rules, for taking the time, to remove the objections, beyond 20 days is not fatal for the applicant/petitioner as the Registry has never objected re-filing of the petition beyond 20 days after removing the objections and for this reason it cannot be said that application/petition is not properly instituted for want of condonation of delay in re-filing the petition after removing objections as it was entertained by the Registry and listed in the Court without any such objection and therefore, there was no occasion for the applicant/petitioner to invoke Rule 7 of Chapter 6 C of Part 1 of H.P. High Court Rules. In fact the delay in re-filing deserves to be considered as deemed to have been condoned. The exclusion of time as provided under Section 14 of the Limitation Act is not available only for defect of jurisdiction, but also other cause of like nature and interpretation of other cause of like nature as only defect of jurisdiction, would be against the intention of legislation as in that eventuality there was no need to incorporate the word or other cause of like nature. - Section 34(5) of the Act 1996 provides that an application under Section 34 shall be filed by a party only after issuing a prior notice to the other party and such application shall be accompanied by an affidavit by the applicant endorsing compliance of the said requirement. The language of sub Section indicates that compliance thereof is mandatory in nature and definitely without such compliance and affidavit related thereto, the Court was unable to entertain it. After permitting exclusion of time from 26.2.2015 to 25.10.2015 taken in pursing the first application/petition filed without compliance of provisions of Section 34(5) of the Act, 1996 and re-filing the present application/petition after compliance thereof, the delay of 6 days in filing the application/petition is condoned - application allowed.

Issues Involved:
1. Condonation of delay in filing the petition under Section 34 of the Arbitration and Conciliation Act, 1996.
2. Applicability of Section 14 of the Limitation Act for exclusion of time spent in pursuing the first petition.
3. Compliance with Section 34(5) of the Arbitration and Conciliation Act, 1996.
4. Proper constitution of the petition in light of the Himachal Pradesh High Court Rules.

Detailed Analysis:

1. Condonation of Delay in Filing the Petition:
The application was filed to condone a delay of 247 days in filing the petition under Section 34 of the Arbitration and Conciliation Act, 1996. The appellant argued that the delay should be condoned under Section 5 read with Section 14 of the Limitation Act, 1963. The respondents contended that the application should be dismissed due to the absence of necessary pleadings and the failure to file under the appropriate provision of law. However, the court decided to consider the application under Section 5 read with Section 14 of the Limitation Act.

2. Applicability of Section 14 of the Limitation Act:
The appellant sought the benefit of Section 14 of the Limitation Act, arguing that the time spent on the initial defective petition should be excluded. The court noted that the Indian Limitation Act applies to proceedings under the Arbitration and Conciliation Act, 1996, except that delay beyond three months can only be condoned for 30 days. The court referenced several cases, including State of Goa v. Western Builders and Consolidated Engineering Enterprises v. Principal Secretary, to support the applicability of Section 14 of the Limitation Act.

3. Compliance with Section 34(5) of the Arbitration and Conciliation Act, 1996:
The initial petition was filed without issuing a prior notice to the respondents, as required under Section 34(5) of the Act. This non-compliance led to the withdrawal of the first petition. The fresh petition was filed after complying with Section 34(5), and the appellant argued that the time spent in pursuing the first petition should be excluded under Section 14 of the Limitation Act. The court agreed, noting that compliance with Section 34(5) is mandatory and failure to comply renders the court unable to entertain the petition.

4. Proper Constitution of the Petition in Light of the Himachal Pradesh High Court Rules:
The respondents argued that the petition was not properly constituted as objections raised by the Registry were not removed within the prescribed 20 days. The court, however, held that the delay in re-filing the petition after removing objections should be deemed condoned, as the Registry listed the petition without any objection. The court also noted that the exclusion of time under Section 14 of the Limitation Act is not limited to jurisdictional defects but also includes other causes of like nature.

Conclusion:
The court allowed the application for condonation of delay, permitting the exclusion of time spent on the initial defective petition. The delay of 6 days in filing the fresh petition was condoned, and the petition under Section 34 of the Arbitration and Conciliation Act, 1996, was ordered to be registered. The application was thus disposed of.

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