The word Condone
 means to 'voluntarily pardon or overlook' whereas
in the field of civil law delayed appeal
is an appeal that takes place
after the time for appealing has expired, but only when the reviewing court has
granted permission because of special circumstances.
Applications to condone delay under S.34 of Arbitration and conciliation act of
1996 (Act) were not taken up earlier by tribunal to allow preliminary
arbitration appeal. However, the Apex court has reconsidered that the refusal of
application to condone delay would make an appeal under S.37 to condone the
order set aside maintainable.
The dictum Justice delayed is Justice denied
has been well recognised in
almost all jurisdictions governed by the rule of law. The dictum highlights that
time limits are an important appendage to the proper administration of justice.
Such recognition has in turn given rise to both statutory limitations on the
time within which civil claims can be prosecuted and to procedural limitations
on the time within which a particular step in an action can be taken.
However, the time limits are seldom wholly prescriptive. The courts generally
retain the discretionary powers to set aside such time limits especially when
the time limits are of a procedural nature.
Appeals lying U/S 34 of act for condonation of delay "12. As far as the language of Section 34 of the 1996 Act is concerned, the
crucial words are but not thereafter used in the proviso to sub-section (3).
In our opinion, this phrase would amount to an express exclusion within the
meaning of Section 29(2) of the Limitation Act, and would therefore bar the
application of section 5 of that Act.
Parliament did not need to go further. To
hold that the Court could entertain an application to set aside the Award beyond
the extended period under the proviso, would render the phrase 'but not
thereafter' wholly otiose. No principle of interpretation would justify such a
The Apex court in its landmark judgement for defining the rejection of appeals
on ground of delay in filing appeal after the period of limitation set under
S.34 expired. By providing the Arbitration act being a special law laid down in
S.29(2) it has excluded effect of limitation act under S.5.
It was laid down in Arbitration and Conciliation Bill, 1995 which preceded the
1996 Act stated as one of its main objectives the need:
To minimise the
supervisory role of courts in the arbitral process. This objective has found
expression in Section 5 of the Act which prescribes the extent of judicial
intervention in no uncertain terms:
5. Extent of judicial intervention. Notwithstanding anything contained in any
other law for the time being in force, in matters governed by this Part, no
judicial authority shall intervene except where so provided in this Part.
The development of Arbitration in India has been remarkable as the court has
considered the statement of object as laid down in S.5 of the act providing
provisions for carrying out the arbitration proceedings in a fair, efficient
manner with the capacity to bring the parties to the dispute to an amicable
resolution. Hence the approach of the Apex court in dealing with a challenge to
an arbitral award under S.34 of Arbitration and conciliation act of 1996 (Act),
has to reflect the consciousness of the legislative intent to restrict and
curtail the extent of judicial intervention in arbitral proceedings and
enforcement of awards.
A challenge to the award under S.34(3) has restricted the power vested in Court
to condone the delay beyond thirty days after the application for such delay has
been filed. As far as the language of Section 34 of the 1996 Act is concerned,
the crucial words are 'but not thereafter' used in the proviso emphasizing the
mandatory nature of the time limit provided in Sub-section (3) of S.34. The
statute confers a discretion on the court to condone delay only to extent of 30
days if sufficient cause is made out and this discretion doesn't extend beyond
In our opinion, this phrase would amount to an express exclusion within the
meaning of Section 29(2) of the Limitation Act and would therefore bar the
application of section 5 of Limitation act as well. It was made abundantly clear
that the statutory period of limitation for setting aside the award is 30 days
and extendable up to 3 months on account of delay due sufficient cause.
Under S.31(1) it is stated in mandatory terms that an award. Must be made in
writing and signed by all members of arbitral tribunal where 'award' refers to
the complete and final arbitral award and if there is more than one
arbitrator then only when acting together they express their decision in
writing, authenticated signatures the award takes effect.
S.31(2) r/w S.29 of the act requires an Arbitral award to be in writing and
signed by all arbitrators and the dissenting opinion to the award is open to a
minor arbitrator and he may also confer a minor award as was laid down in
various rulings of the court that dissenting opinion has been held to be the
correct view by the Courts in various cases.
The View held by the Apex court in its ruling in Ssangyong Engg. and
Construction Co. Ltd. v. NHAI was:
"Under the scheme of Section 34 of the 1996 Act, the disputes that were decided
by the majority award would have to be referred afresh to another arbitration.
This would cause considerable delay and be contrary to one of the important
objectives of the 1996 Act, namely, speedy resolution of disputes by the
arbitral process under the Act.
Therefore, in order to do complete justice
between the parties, invoking our power Under Article 142 of the Constitution of
India, and given the fact that there is a minority award which awards the
Appellant its claim based upon the formula mentioned in the agreement between
the parties, we uphold the minority award, and state that it is this award,
together with interest, that will now be executed between the parties.
Hence following the view of this court in the above case, only one date
recognised by law i.e. the date on which a signed copy of the final award is
received by the parties, will be one from which the period of limitation for
filing objections would start ticking. There can be no finality in the
award, except after it is signed, because signing of the award gives legal
effect and finality to the award. Section 34 of the Act provides for
objections to be filed against the arbitral award, and not the majority
Consequently, the time limit to file objections against an award Under
Section 34(3) of the Act, does not relate to only the majority award, but to
the arbitral award, which includes the opinion of the dissenting member of
the tribunal. It was contended that if the majority award was taken to mean
the arbitral award, the dissenting opinion of the minority would have no
relevance. Such a view would cause grave prejudice to the award debtor.
Period Of Limitation For Appeal Lying U/S 37 Of The ActAn appeal has been defined as testing the soundness of the decision and
proceedings of the inferior court or tribunal, by a superior court or
forum.The right of appeal is a vested right to enter the superior court
accrues to the litigant from the date that Lis commences. However, the statute
does not provides for remedy of appeal against a particular order then no appeal
against such an order would be maintainable.
The Non-Obstante clause introduced
in 2019 states:
Notwithstanding anything contained in any other law an appeal shall lie from
the following orders (and from no others) to the court authorized by law to hear
appeals from original decrees of the court passing the order� 
This amendment was clarificatory in nature as to say that no appeal shall lie
from any other statute as the right to appeal is already and only conferred by
S.37 of the act clear from Parenthesis "(and from no other)".As the act is a
self-contained and exhaustive code implies that the Scheme of the act is
complete in itself ,and the jurisdiction of civil courts to take cognizance of
the cases arising under the act, by necessary implication is barred. Under S.37
of the act:
- An appeal shall lie from the following orders (and from no others) to
the Court authorised by law to hear appeals from original decrees of the
Court passing the order, namely:
The Apex court further held that:
- refusing to refer the parties to arbitration under section 8;
- granting or refusing to grant any measure under section 9;
- setting aside or refusing to set aside an arbitral award under section
35. Complete further adds a degree of certainty to the code. It has to be a
compilation of provisions which would comprehensively deal with various aspects
of the purpose sought to be achieved by that law and its dependence on other
legislations is either absent or at best is minimal. The provisions of the
enactment in question should provide for a complete machinery to deal with
various problems that may arise during its execution.
Sufficient powers should
be vested in the authority/forum created under the Act to ensure effectual and
complete implementation of the Act. There should be complete and coherent scheme
of the statutory provisions for attainment of the object and purpose of the Act.
It essentially should also provide for adjudicatory scheme to deal with
grievances/claims of the persons affected by enforcement of the provisions of
the Act, preferably, including an appellate forum within the framework of the
Act. In other words, the Act in itself should be a panacea to all facets arising
from the implementation of the Act itself.
Ratio Decidendi laid down in the case of
Consolidated Engg. Enterprises and Ors.
v. Principal Secy. Irrigation Dept. and Ors. that S.37 of the act will be
governed by the Article 116 of the schedule to the Limitation act.
intention of the legislature in enacting Section 14 of the Act is to give
relief to a litigant who had approached the wrong forum Provisions of
Limitation Act, 1963 apply to all proceedings under the AC Act, both in
court and in arbitration, except to the extent expressly excluded by the
provisions of the AC Act.
Period Of Limitation Under Chintal Bhayana Case /Borse Brothers
Chintel India Ltd. V. Bhayana Builders :
The question that was referred in this judgement was whether an Order refusing
to condone delay in filing application under Section 34 of Act is appealable
order under Section 37(1)(c) of Act." The Hon'ble Justice Rohinton Fariman laid
9. We now come to Section 37(1)(c) It is important to note that the
expression "setting aside or refusing to set aside an arbitral award" does
not stand by itself. The expression has to be read with the expression that
Section 34 is not limited to grounds being made out Under Section 34(2).
Obviously, therefore, a literal reading of the provision would show that a
refusal to set aside an arbitral award as delay has not been condoned Under
Sub-section (3) of Section 34 would certainly fall within Section 37(1)(c). The
aforesaid reasoning is strengthened by the fact that Under Section 37(2)(a), an
appeal lies when a plea referred to in Sub-section (2) or (3) of Section 16 is
This would show that the Legislature, when it wished to refer to part
of a section, as opposed to the entire section, did so. Contrasted with the
language of Section 37(1)(c), where the expression "Under Section 34" refers to
the entire Section and not to Section 34(2) only, the fact that an arbitral
award can be refused to be set aside for refusal to condone delay Under Section
34(3) gets further strengthened
37. Consequently, the question of law is answered by stating that an appeal
Section 37(1)(c) of the Arbitration Act, 1996 would be maintainable against an
refusing to condone delay in filing an application Under Section 34 of the
Act, 1996 to set aside an award.
The Apex court in the above judgement ordered that consequently, application
Under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside
the award is also rejected being barred by time meaning that the Court has not
dealt with the application for setting aside of the award on merits and the same
has been disposed of solely as a consequence of rejection of the application for
condonation of delay and there has been no enquiry as regards the rights of the
parties on the issue of setting aside of the award.
This judgment cannot be said
to state the law correctly as it does not advert to the decision of this Court
in Essar Constructions (supra) and is against the interpretation of Section
37(1)(c) of the Arbitration Act, 1996 given by us above. On the contrary, this
Court makes it clear that Section 5 of the Limitation Act is excluded by Section
34(3) of the Arbitration Act, 1996 and that no condonation of delay can take
place beyond the period of 120 days. Consequently, the reasoning of the Division
Bench of the Bombay High Court in State of Maharashtra v. Ramdas construction
co. and Union of India v. Radha Krishna Seth & anr. does not commend
itself to the law and hence both these judgments as a result were overruled in
this Ruling of the Apex court.
Government of Maharashtra vs Borse Brothers Engineers and Contractors Pvt ltd.
The Period of filing of appeal under S.37 after the lapsing of the period of 120
days for appeal under S.34(3) inclusive of appeal under S.37 laying down that in
the above order the delay was held to be condonable due to an sufficient cause
and appeal can be allowed on discretion of court if the delay is presumably
The previous ruling of the Hon'ble Apex court was overturned which
included the limitation period of appeal lying under S.34(3) from under S.37
will be within the period of 90 days given under schedule of limitation act by
application of S.5 of limitation act applicable from S.43 of the Act.Section
21 of the Commercial Courts Act was also pressed into service stating that
the non-obstante Clause contained in the Commercial Courts Act would override
other Acts, including the Limitation Act, because of which, the applicability of
Section 5 thereof would be excluded and S.13A of the Commercial court act
allowing period of 60 days for filing appeal under S.37 with the objective of
speedy resolution and minimum judicial intervention being achieved.
dictum as follows:
Given the aforesaid and the object of speedy disposal sought to be achieved
both under the Arbitration Act and the Commercial Courts Act, for appeals filed
Under Section 37 of the Arbitration Act that are governed by Articles 116 and
117 of the Limitation Act or Section 13(1A) of the Commercial Courts Act, a
delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way
of exception and not by way of rule.
In a fit case in which a party has
otherwise acted bona fide and not in a negligent manner, a short delay beyond
such period can, in the discretion of the court, be condoned, always bearing in
mind that the other side of the picture is that the opposite party may have
acquired both in equity and justice, what may now be lost by the first party's
inaction, negligence or laches.
Given the object sought to be achieved under both
the Arbitration Act and the Commercial Courts Act, that is, the speedy
resolution of disputes, the expression "sufficient cause" is not elastic enough
to cover long delays beyond the period provided by the appeal provision
itself", the Court said.
63. Apart from this, there is a long delay of 131 days beyond the 60-day period
provided for filing an appeal Under Section 13(1A) of the Commercial Courts Act.
There is no explanation worth the name contained in the condonation of delay
application, beyond the usual file-pushing and administrative exigency. This
appeal is therefore dismissed.
The judgment of the High Court is wholly incorrect inasmuch as Consolidated Engg.
(supra) was a judgment which applied the provisions of Section 14 of the
Limitation Act and had nothing to do with the application of Section 5 of the
Limitation Act. N.V. International (supra) was a direct judgment which applied
the provisions of Section 5 of the Limitation Act and then held that no
condonation of delay could take place beyond 120 days.
- Bryan A.Garner's Black's Law Dictionary 8th Edn. Thomson west, 2004
- Cases: judgements of appeal and error.
- All India Judges' Association & Others v Union of India & Others (2002)
4 SCC 247:
Smt Manju Devi v Additional District Judge & Others 2007(4) AWC 3403.
- Section 34(3) of the Arbitration and Conciliation Act 1996.
- Union Of India v. Popular construction Co., AIR 2001 SC 4010.
- Associate Builders v. Delhi Development Authority,(2015) 3 SCC 49.
- Vijaya Bank v. Maker Development Services, 2001 (3) Bom CR 652.
- Hindustan Construction Co. Ltd. V. State of Maharashtra,(2010) 4 SCC 518.
- Himachal Techno Engineers v. State of Himachal Pradesh, (2010) 12 SCC 210.
- Simplex Infrastructures ltd. v. Union of India,(2019) 2 SCC 455.
- Satwant Singh Sodhi v. State of Punjab,(1999) 3 SCC 487.
- (2019) 15 SCC 13.
- Dakshin Haryana Bijli Vitran Nigam Ltd. V. Navigant Technologies Pvt.
Ltd., LL 2021 SC 126.
- Tirupathi Balaji Developers Pvt. Ltd. v. State of Bihar,(2004) 5 SCC 1.
- Report of the High level Committee to Review the institutionalism to
Arbitration Mechanism in India, chaired by Justice B.N. Srikrishna, 30 July 2017
, available at https: / /legalaffairs.gov.in/. at p.69.
- United States v. Shilling, 53 Fed 81: 3 CCA 440.
- Substituted by the Arbitration and Conciliation (Amendment) Act, 2015, w.e.f. 23.10.2015.
- Girnar Traders and Ors. vs. State of Maharashtra and Ors., (2011) 3 SCC 1.
- 2008 (6) ALLMR (SC) 423.
- AIR 2021 SC 1014.
- Supra 21
- 2021 4 SCC 629
- 2006 6 Mah. L.J 678
- N.V international
- Section 21 Commercial Courts Act, 2015; Save as otherwise provided, the
provisions of this Act shall have effect, notwithstanding anything
inconsistent therewith contained in any other law for the time being in
force or in any instrument having effect by virtue of any law for the time
being in force other than this Act.
Award Winning Article Is Written By: Mr.Kanishka Pandey
Authentication No: AU35614219661-31-0821