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Mission Director, National Health Mission v/s Jagdish Shanti Hotels Pvt. Ltd. & Others

    A.A. No. 21 of 2020
    Decided On, 16 February 2021
    At, High Court of Madhya Pradesh
    By, THE HONOURABLE MR. JUSTICE PRAKASH SHRIVASTAVA & THE HONOURABLE MR. JUSTICE VIRENDER SINGH
    For the Appearing Parties: Bramhdatt Singh, Shreyas Dubey, Advocates.


Judgment Text
Prakash Shrivastava, J.

1. This appeal has been filed under Section 37 of the Arbitration and Conciliation Act (hereinafter referred to as the Act ) against the order dated 19.08.2019 passed by the 3rd Additional District Judge, Bhopal in MJC(AV) No.09/2018 whereby the objection filed by the appellant under Section 34 of the Act against the arbitral award dated 23.02.2017 has been rejected.

2. This appeal has been filed on 12.08.2020 after 206 days of passing the order by the Court below. After excluding the coping period and holidays etc. and also excluding the 90 days period available for filing the appeal, there is a delay of 103 days in filing this appeal.

3. The Hon ble Supreme Court in the matter ofUnion of India vs. Varindera Constructions Limited, (2020) 2 SCC 111has taken the view that since Section 34 application has to be filed within a maximum period of 120 days including the grace period of 30 days therefor, an appeal filed from the selfsame proceedings under Section 37 of the Act should be covered by the same drill and filing an appeal beyond the period of 120 days under Section 37 of the Act should not be allowed as it will defeat the overall statutory purpose of arbitration proceedings. The Hon ble Supreme Court in the case of Varindera Constructions Limited(supra) in this regard has held as under:

3. Ordinarily, we would have applied the said judgment to this case as well. However, we find that the impugned Division Bench judgment dated 10-4-2013 [Union of India v. Varindera Constructions Ltd.,2013 SCC OnLine Del 6511] has dismissed the appeal filed by the Union of India on the ground of delay. The delay was found to be 142 days in filing the appeal and 103 days in refiling the appeal. One of the important points made by the Division Bench is that, apart from the fact that there is no sufficient cause made out in the grounds of delay, since a Section 34 application has to be filed within a maximum period of 120 days including the grace period of 30 days, an appeal filed from the selfsame proceeding under Section 37 should be covered by the same drill.

4. Given the fact that an appellate proceeding is a continuation of the original proceeding, as has been held in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri [Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri,1940 SCC OnLine FC 10 : AIR 1941 FC 5] , and repeatedly followed by our judgments, we feel that any delay beyond 120 days in the filing of an appeal under Section 37 from an application being either dismissed or allowed under Section 34 of the Arbitration and Conciliation Act, 1996 should not be allowed as it will defeat the overall statutory purpose of arbitration proceedings being decided with utmost dispatch.

5. In this view of the matter, since even the original appeal was filed with a delay period of 142 days, we are not inclined to entertain these special leave petitions on the facts of this particular case. The special leave petitions stand disposed of accordingly. Pending applications, if any, also stand disposed of.

Subsequently, the same issue came up before the Hon ble Supreme Court in the matter ofN.V. Interrnational vs. The State of Assam and others, (2020) 2 SCC 109and the Hon ble Supreme Court taking note of the earlier judgment in the case of Varindera Constructions Limited (supra) has held as under:

5. We may only add that what we have done in the aforesaid judgment is to add to the period of 90 days, which is provided by statute for filing of appeals under Section 37 of the Arbitration Act, a grace period of 30 days under Section 5 of the Limitation Act by following Lachmeshwar Prasad Shukul and others (supra), as also having regard to the object of speedy resolution of all arbitral disputes which was uppermost in the minds of the framers of the 1996 Act, and which has been strengthened from time to time by amendments made thereto. The present delay being beyond 120 da

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ys is not liable, therefore, to be condoned. 4. Having regard to the aforesaid, we are of the opinion that the delay of 103 days after expiry of the normal period of 90 days cannot be condoned. That apart, an examination of the application for condonation of delay, we are not satisfied that the delay has been properly explained. Hence, IA No.7156/2020 seeking condonation of delay is rejected and consequently the appeal is dismissed.
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