Entire 30 Days Extended Period Under Section 34(3) Of The A&C Act Coincided With Court Vacations, Calcutta High Court Invokes Power Under Article 133(1)(A) R/W Article 134A Of The Constitution

The bench of Justice Shekhar B. Saraf was dealing with a peculiar situation wherein the application filed under Section 34 of the A&C Act was rendered barred in law for the reason that the entire 30 days grace period provided under proviso to Section 34(3) coincided with the Court holidays.

The Court dismissed the petition as barred in law for having been filed beyond the period of limitation prescribed under the A&C Act but with the liberty to the aggrieved party to directly approach the Supreme Court in appeal.

The Court reiterated that the words three months given under Section 34(3) of the A&C Act cannot be read to mean 90 days. Moreover, the Court reaffirmed that the benefit of Section 4 of the Limitation Act would only be available for the original period of three months and not for the extended period given under the proviso.

Facts

The parties entered into an agreement on 12.11.1996. The project work was completed in 2006, however, in the year 2009, the respondent invoked the arbitration clause for referring several of its claims to arbitrator. Accordingly, the arbitrator was appointed and the award dated 30.06.2022 was rendered in favour of the respondent.

The petitioner filed the challenge under Section 34 of the A&C Act on 31.10.2022. The respondents objected to the maintainability of the petition on the ground that it is barred by limitation having been filed beyond the period of limitation prescribed under the Act.

Contention of the Parties

The respondents objected to the maintainability of the petition on the following grounds:

• The period of limitation began to run on 01.07.2022 and the period of three months expired on 30.09.2022 and the Court was working on that day.
• The grace period of 30 days provided under the proviso also expired on 30.10.2022, however, the petition was filed even after the expiry of the grace period.
• The petitioner is not entitled to the benefit of Section 4 of the Limitation Act as the original period of 90 days expired before the last working day of the Court and in view of the Supreme Court judgment in Assam Urban Water Supply v. Subhash Projects, (2012) 2 SCC 624, the benefit cannot be claimed for the grace period.

The petitioners countered the above submissions by raising the following arguments:

• The period of limitation began to run on 01.07.2022 and it would expire only on 01.10.2022, however, that day was a Court holiday, thus, it should be excluded from the period of limitation in terms of Section 4 of the Limitation Act.
• The Court vacation lasted for the entire month and got over only on 30.10.2022 and the petition was filed on the day the Court reopened, therefore, it was filed within the original period, even otherwise, it was filed on the first day of the 30 days grace period.

Analysis by the Court

The Court observed that the award was passed on 30.06.2022 and it was validly delivered on the same date, thus, the period of limitation began to run on 01.07.2022. Firstly, the Court examined when did the period of limitation expire, for that the Court examined the meaning assigned to words ‘three months’ under Section 34(3) of the A&C Act.

The Court reiterated that the words three months given under Section 34(3) of the A&C Act cannot be read to mean 90 days. Accordingly, the held that the original period of limitation expired on 30.09.2022.

Next, the Court examined the issue whether the petitioner is entitled to the benefit of Section 4 of the Limitation Act. The Court relied upon the judgment of the Supreme Court in Assam Supply (supra) wherein the Apex Court held that the benefit of Section 4 of the Limitation Act would only be available for the original period. Thus, the Court held that once the original period of limitation expired on 30.09.2022 which was a working day, the petitioner would not be entitled to the benefit of Section 4 merely on the ground that the first day of the grace period fell on Court’s holiday.

The Court further held that that grace period of 30 days expired on 30.10.2022, and the petition was filed on 31.10.2022 on the expiry of the limitation period, thus, the petition was barred by limitation.

However, the taking cognizance of the peculiar situation wherein the entire extended period of 30 days coincided with the Court’s holidays, the Court stayed the operation of its judgment for 60 days and invoked its powers under Article 133(1(a) r/w Article 134A to allow the petitioners to directly appeal to the Supreme Court.

The Court observed that the case involves a substantial question of general importance and the that the law has a lacuna which the legislature could not comprehend and allowed the certificate to the petitioner.

The Court also observed that the certificate to appeal will be in addition to the remedies already available to the petitioner.

Case Title: State of West Bengal v. Rajpath Contractors and Engineers Limited, AP 737 of 2022

Date: 04.05.2023

Counsel for the Petitioner: Mr. S.N. Mookherjee, Ld. Advocate General Mr. Samrat Sen, Sr. Adv. Mr. Paritosh Sinha, Ld. AOR Mr. Shourya Samanta, Adv.

Counsel for the Respondent: Mr. Priyankar Saha, Adv. Ms. Srijani Mukherjee, Adv.

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