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Waaree Energies Limited v. Sahasradhara Energy Pvt Ltd

Waaree Energies Limited v. Sahasradhara Energy Pvt Ltd

(High Court Of Judicature At Madras)

O.S.A.Nos.50, 51 and 54 of 2021 | 08-09-2021

1. These appeals are directed against an order of March 11, 2020 by which a belated petition under Section 34 of the Arbitration and Conciliation Act, 1996 has been thrown out without considering the merits of the matter.

2. The impugned judgment carries a chart in its second paragraph indicating the relevant dates. For the present purpose, it may suffice to notice that a period of three months from the date of receipt of the arbitral award dated February 14, 2019 ran out on May 14, 2019 and the further thirty-day period elapsed on June 13, 2019. Thus, a valid petition ought to have been filed by the appellant herein by May 14, 2019 or, upon leave being obtained in terms of Section 34(3) of the Act, by June 13, 2019. In this case, the petition was presented with court-fees of Rs.1,000/- when the actual court-fees payable amounted to Rs.1 lakh. The petition was presented on June 3, 2019, returned by the department for rectification on June 10, 2019 and the deficit court-fees were tendered only on August 6, 2019. It may also be noticed that the petition was presented immediately after the Court reopened following the summer vacation. The Master dismissed the applications for condonation of delay and for acceptance of the petition, against which an appeal under Rule 12 of Order XIV of the Rules on the Original Side of this Court was filed with a further delay of 12 days. It is the resultant order which has been sought to be questioned as it has the effect of dismissing the petition for challenging the award.

3. The arbitration court referred to a Division Bench judgment of this Court reported at 2003 (3) LW 803 (K.Natarajan vs. P.K.Rajasekaran) and applied the dictum therein while dealing with the matter. The Single Bench also referred to an unreported judgment of March 22, 2018, rendered on O.S.A.No.220 of 2017 (R.Krishnamurthy vs. R.Venkitapathy). In course of the discussion in the impugned judgment, there is also a reference to a decision reported at (2019) 2 SCC 455 [LQ/SC/2018/1556] (Simplex Infrastructure Ltd. vs. Union of India) which was rendered after the judgment in the R.Krishnamurthy case.

4. After referring to the submission of the appellant herein and how a similar matter had been dealt with by the Single Bench in the judgment reported at 2020 (1) TLNJ 526 (Civil) (General Manager vs. Veeyar Engineers and Contractors), the Court posed a question whether the presentation of the petition with the nominal court-fees of Rs.1,000/- instead of the payable quantum of Rs.1 lakh amounted to proper presentation. On the basis of the previous judgments referred to hereinabove, the Court concluded at paragraph 14 of the impugned judgment that the presentation of the petition on June 3, 2019, “is clearly not proper presentation and does not arrest limitation period prescribed under Sub Section (3) of Section 34” of the of 1996. The Court reasoned that the entire exercise had to be properly completed by June 13, 2019 for the appellant herein to seek condonation within the additional 30 days after the expiry of three months from the date of receipt of the award. The re-presentation with appropriate court-fees in this case was only on August 6, 2019.

5. In the light of the appellant’s conduct and its failure to protect its interest, the order impugned cannot be flawed. When a right is conferred and the right is hedged with certain conditions, it is the entire package that has to be adhered to. It will not do for a party to avail the right without complying with the condition as the appellant herein had attempted to do. No amount of explanation could have rectified the position since condonation of delay is not possible in such a situation and the only way of a petitioner in such a position is to indicate the exclusion of any time in terms of the Limitation Act, 1963. No explanation of any kind was found to have been proffered, at any rate.

6. When the provision in this case is clear and categorical and it permits appeals to be filed within a stipulated time and also indicates that the time cannot be enlarged by use of the words, “but not thereafter”, as found at the end of the Proviso to Section 34(3) of theof 1996, the ordinary power of condonation available under Section 5 of theof 1963 would not apply.

7. When a statute requires a particular thing to be done within a particular period and the statute is the entirety of the law in a specialised area, just as the of 1996 is a complete Code by itself as it is a consolidating and amending act, the recourse to the general provisions would not be permissible.

8. There is no error in the judgment and order impugned and the appellant has to be blamed for the casual manner in which the appellant proceeded with the matter. O.S.A.Nos.50, 51 and 54 of 2021 are dismissed. There will be no order as to costs.

Advocate List

  • Ms.Hema Srinivasan

  • Mr.Vinod Kumar

Bench
  • HON'BLE MR. CHIEF JUSTICE SANJIB BANERJEE
  • HON'BLE MR. JUSTICE P.D.AUDIKESAVALU
Eq Citations
  • LQ/MadHC/2021/11006
Head Note

Arbitration and Conciliation Act, 1996 — Ss. 34 and 34-A — Appeal under S. 34 — Limitation — Delay in filing appeal — When a right is conferred and the right is hedged with certain conditions it is the entire package that has to be adhered to — No amount of explanation could have rectified the position since condonation of delay is not possible in such a situation and the only way of a petitioner in such a position is to indicate the exclusion of any time in terms of Limitation Act, 1963 — Held, when the provision in this case is clear and categorical and it permits appeals to be filed within a stipulated time and also indicates that the time cannot be enlarged by use of the words ldquobut not thereafterrdquo as found at the end of the Proviso to S. 34-A, the ordinary power of condonation available under S. 5 of Limitation Act, 1963 would not apply — When a statute requires a particular thing to be done within a particular period and the statute is the entirety of the law in a specialised area just as 1996 Arbitration and Conciliation Act is a complete Code by itself as it is a consolidating and amending act the recourse to the general provisions would not be permissible — In the present case, appellant had to be blamed for the casual manner in which the appellant proceeded with the matter — Limitation Act, 1963, Ss. 5 and 3