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TMI Blog2012 (11) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... taneously on lifting of the goods. The Railway, however, was not ready to deliver the goods. It expressed its inability vide letter dated July 11, 1995, appearing at page 88 wherein the concerned officer wrote to the respondent that he was busy in delivery in respect of the other consignment hence, the respondent should contact him after one month. Despite repeated letters, the Railway did not effect delivery that gave rise to a dispute that was ultimately referred to arbitration. The panelled arbitrator of the Railways being the deputy General Manager, published an award in favour of the respondent. The Railways challenged the said award before the learned Single Judge being the appropriate civil court, after 108 days of the scheduled dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of State of Goa -vs- Western Builders, reported in All India Reporter 2006 Supreme Court page-2525. His Lordship also considered two Division Bench decisions of this Court in the case of Rafik alias Rafique Vs. Magma Leasing Limited & Anr. reported in 2010 (1) Calcutta High Court Notes page-143 and in the case of State of West Bengal -vs- AFCONS Infrastructure Ltd., reported in All India Reporter 2008 Calcutta page-6. His Lordship held that the phrase "not thereafter" would debar the Court to consider any application beyond 120 (90+30) days. Admittedly, the present case would involve 108 days' delay that could not be considered by the learned Single Judge. We heard Mr. L.K. Chatterjee, learned senior counsel appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a part of the officials such wrong doing would remain unchallenged causing substantial loss to the public exchequer. Mr. Chatterjee informed this court that the Railways already took steps against the erring officials by initiating disciplinary proceedings. Per contra, Mr. Nabi Choudhury, learned counsel appearing for the respondent would contend that the Railways did not take the plea of fraud at any stage. The Deputy General Manager of the Railways acted as an arbitrator. Adequate opportunity was given to the Railways to contest the claim. Ultimately the award was passed. The Railways, in its wisdom, did not challenge the same within the stipulated period. The learned Single Judge would not be competent to condone such inordinate de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such a result." The decision in the case of State of Goa (supra) did not have any conflict with Popular Construction (supra). In this case also section 29 of the Limitation Act was considered. The apex court was of the view that section 29 would make the provisions of sections 4 to 24 applicable in case of any limitation prescribed under any special law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present appeal, the facts would debar us from applying so. Coming back to the factual matrix, we find that the plea of fraud was conspicuously absent at all stages. It was nothing but an attempt made at the bar that would not inspire us to extend the scope of the appeal. We fully agree that the dismissal of the appeal would foreclose the opportunity to challenge the award. We are unable to accede to the prayer of the Union of India. In fact we are not sure as to whether the Union of India would actually support the case made out at the bar by its counsel. The appeal fails and is hereby dismissed. There will be no order as to costs. Urgent certified copy of this judgment, if applied for, be given to the parties on their usual undertakin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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