Section 5 Limitation Act Has No Application To Condone Delay In Filing Petition U/S. 34 Of Arbitration Act: Kerala HC
The Kerala High Court held that Section 5 of the Limitation Act, 1963 has no application to condone delay in filing a petition under Section 34 of the Arbitration and Conciliation Act, 1996.
The Court observed that challenge against an arbitral award beyond 4 months cannot be entertained.
The Court was deciding an appeal against the dismissal of original petition by the District Judge, Kozhikode. A petition was also filed under Section 5 of the Limitation Act for condoning delay of 1306 days in filing the Arbitration Appeal.
A Single Bench of Justice A. Badharudeen observed, “Insofar as challenge against arbitration award is concerned, the same is in accordance with Section 34 of the Arbitration and Conciliation Act, since specific period of limitation is provided therein. Therefore, Section 5 of the Limitation Act has no application to condone delay in filing a petition under Section 34 of the Arbitration and Conciliation Act. Section 34 of the Arbitration and Conciliation Act provides appeal to set aside an award.”
Advocates T.G. Rajendran and T.R. Tarin appeared on behalf of the appellants.
In this case, the counsel for the appellants pressed for condonation of delay of 1306 days in filing the appeal and admission of the appeal for hearing. As early in the year 2014, arbitration proceedings commenced before the Arbitrator and the same was allowed as against the appellants since they did not contest the matter. After having noticed and received the award against the appellants, they remained silent for about 1781 days in preferring the first appeal before the District Court.
Consequently, the original petition was dismissed and hence, the same was challenged before the High Court. The questions that arose for consideration before the Court were:
1. Whether Section 5 of the Limitation Act has application to condone delay in filing a petition under Section 34 of the Arbitration and Conciliation Act?
2. What is the maximum period available to a party to an arbitration proceeding to challenge an award passed by the Arbitrator by invoking Section 34 of the Arbitration and Conciliation Act?
The High Court after hearing the contentions of the counsel said, “… it is emphatically clear that when the special statute provides specified period of limitation, Section 5 of the Limitation Act has no application. A conjoint reading of Section 34(3) of the Arbitration and Conciliation Act along with its proviso makes the position emphatically clear that challenge against an arbitral award beyond 4 months cannot be entertained, as the said claim is barred by limitation.”
The Court noted that the remedy by way of challenge provided under Section 34 of the Arbitration and Conciliation Act is time barred and the challenge against dismissal of the original petition filed under Section 34 being time barred is liable to fail.
“Therefore, this appeal filed challenging dismissal of the delay petition filed beyond the period provided under Section 34(3) read with its proviso and the delay in filing the Arbitration Appeal cannot be condoned”, concluded the Court.
Accordingly, the High Court dismissed the appeal and the petition for condonation of delay.
Cause Title- Mathew P J & Anr. v. M/s. Cholamandalam Investment and Finance Co. Ltd. (Neutral Citation: 2023:KER:81490)
