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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 ..... ower of the court to consider an application for condonation of delay if it was filed within thirty days after expiry of the stipulated period and “not thereafter”. In the present case, from the pleadings no case made out by the Union of India, either before the arbitrator or this court. Mr. Chatterjee would seek leave from us to amend his application for setting aside - not to grant such leave at this belated stage that would cause immense prejudice to the respondent - 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 - dismissal of appeal would foreclose the opportunity to challenge the award - unable to accede to the prayer o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal before us. On perusal of the judgment and order dated March 2, 2011, appearing at pages 272 to 280 of the paper book, we find that His Lordship found the application delayed by 108 days. His Lordship considered section 34(3) of the Arbitration Conciliation Act, 1996 that would permit an aggrieved party to pray for setting aside of the award within ninety days from the date of publication and/or receipt of the award coupled with a power given to the court to condone the delay in appropriate cases if such delay was within thirty days and not thereafter. Section 34(3) of the 1996 Act is quoted below: Section 34 (3): An application for setting aside may not be made after three months have elapsed from the date on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. Mr. Chatterjee would contend that the entire dealing was vitiated by fraud. The Railway officials were acting at the behest of the respondent. The letters relied upon by the respondent expressing inability of the Railways to effect delivery were sought to be procured. Even after receipt of the award, the concerned officials kept the same under the carpet and thus prevented the Railways from challenging the same before the court within the stipulated period. Mr. Chatterjee strenuously contended that the apex court decision in the case of Union of India vs- Popular Construction (supra) stood distinguished on the subsequent decision in the case of State of Goa (supra). The decision in the case of State of Goa (supra) extended the sco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. We have considered the rival contentions. We have also perused the award appearing at pages 175 to 178 of the paper book. The arbitrator held that time was the essence of the contract. The Railways were not prepared to deliver the goods. Hence it committed breach. Even then the learned arbitrator directed delivery of the goods within thirty days from the date of publication of the award simultaneously upon payment and in default thereof the sale would stand cancelled. We do not wish to make any comment on the merits of the objection raised by the Railways in its application for setting aside. Section 34(3) of the 1996 Act was clear and unambiguous. It restricted the power of the court to consider an application for condonation of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the case under section 14 of the Limitation Act and observed that section 14 would have a role to play. Paragraph 14 of this decision being relevant herein, is quoted below: 14. The question is whether Section 14 of the Limitation Act has been excluded by this special enactment i.e. the Arbitration and Conciliation Act, 1996. Section 43 of the Arbitration and Conciliation Act, 1996 clearly says that the Limitation Act, 1963 shall apply to arbitration as it applies to the proceedings in the court. Section 14 of the Limitation Act did not extend the period of limitation unlike cases under sections 4 to 11. It was a case of exclusion in an eventuality. Section 17 would also provide for exclusion of period in another eventualit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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