30 Days Grace Period Expired During Court Break, Section 34 Petition Can't Be Entertained Even If Filed On Reopening: Delhi High Court

The bench of Justices Vibhu Bakhru and Tara Vitasta Ganju held that Section 10 of General Clauses Act, which provides that an act is considered to be done within limitation, if it is done on the next day on which the court reopens if the last day of limitation coincided with court holiday, does not apply to a petition challenging arbitration award.

Facts

Pursuant to a dispute between the parties, the impugned award was passed on 04.02.2022. The hard copy of the award was delivered to the appellant on 14.02.2022.

By an order dated 10.01.2022, the Supreme Court in In Re: Cognizance for Extension of Limitation extended the period of limitation in cases where the period of limitation expired during the period between 15.03.2020 till 28.02.2022, the same was extended for a period of ninety days from 01.03.2022. The extended period expired on 29.05.2022.

From 04.06.2022 till 03.07.2022, the High Court was on summer vacations. However, the registry was opened with effect from 27.06.2022.

The petition under Section 34 was filed on 04.07.2022, on the date on which the court reopened. The single bench, by the impugned order dated 07.02.2023, dismissed the challenge petition as barred by limitation for having been filed after the expiry of the 30 days condonable grace period. Aggrieved thereby, the appellant filed the appeal under Section 37 of the A&C Act.

Submissions by the Parties

The appellant made the following submissions:

• The Supreme Court in Sridevi Datla v. Union of India (2021) 5 SCC 321 has held that benefit of Section 10 of General Clauses Act would be applicable if the condonable grace period expired during the court holidays.
  
• Single Judge did not assess if there was sufficient cause for the delay in filing the petition. It dismissed the petition by simply observing that Section 4 of the Limitation Act does not apply to condonable period without considering Section 10 of General Clauses Act.
• It also failed to recognise the distinction between Section 4 of the Limitation Act and Section 10 of the General Clauses Act.

The respondent made the following counter-submissions:

• That Supreme Court in Assam Urban Water Supply & Sewerage Board v. Subhash Projects & Marketing Limited (2012) 2 SCC 624 refused to condone the delay in an identical situation and held that Section 4 of the Limitation Act would not apply to the 30 days condonable period.
  

Analysis by the Court

The Court examined the issue that whether Section 10 of General Clauses Act would apply to proviso provided under Section 34(3) of the A&C Act.

The Court held that a Petition under Section 34 of the A&C Act cannot be entertained by the Court even if the 30 days condonable grace period given under Section 34(3) of the A&C Act expired during the Court breaks and the petition is filed on the date on which the Court reopened.

The Court held that benefit of Section 10 of General Clauses Act, which provides that an act is considered to be done within limitation, if it is done on the next day on which the court reopens, would not be available to grace period provided under Section 34(3) of the A&C Act.

The Court remarked that judgment in Sridevi Datla has not been held to be a good law in a subsequent judgment of the Apex Court in Bhimashankara Sahakari Sakkare wherein the Supreme Court held that proviso to Section 10 of the General Clauses Act excludes it applicability to proceedings to which the Limitation Act applies and since the Arbitral proceedings are governed by the Limitation Act, the benefit of Section 10 would not be available.

Accordingly, the Court dismissed the appeal and upheld the order of the single bench holding the petition as time-barred.

Case Title: MyPreferred Transformation & Hospitality v. Faridabad Implements Pvt Ltd

Citation: 2024 LiveLaw (Del) 423

Date: 03.04.2024

Counsel for the Appellant: Mr. Rajiv Nayar, Sr Advocate with Mr. Harsh Kaushik, Ms. Adrija Mishra, Mr. Saurav Seth, Advocates.

Counsel for the Respondent: Mr. Simran Mehta and Mr. Prakash Chand, Advocates.

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