IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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OMP(M) No. 67 of 2022.

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Reserved on: 14.09.2023
Date of Decision: 20.09.2023
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Ajmer Vidyut Vitran Nigam Ltd.

……...Petitioner.
Versus

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Bansal Generation Ltd.
…....Respondent.
Coram rt
Hon’ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?
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For the petitioner: Mr. Navlesh Verma, Advocate.

For the respondent: Mr. Rajeev Kumar Gupta, Advocate.

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Satyen Vaidya, J.

By way of instant application, a prayer has been made to

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condone the delay in filing the petition under Section 34 of the

Arbitration and Conciliation Act 1996 (for short, ‘the Act’).

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2. It is averred in the application that the Arbitral Award was

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passed by the Arbitrator on 06.07.2018 in Arbitration proceedings

between the parties to the instant petition. The award was modified on

the application filed under Section 33 of the Act and the subsequent

award was announced on 03.11.2018. The petitioner herein applied

for certified copy of the Award and received the same on 19.11.2018.

After due consultation and after seeking legal advice from their

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counsel, the petitioner filed a Writ Petition No. 1756 of 2019 against

the Award passed by learned Arbitrator before Hon’ble High Court of

Rajasthan. The date of filing of the writ petition is stated to be

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15.01.2019.

3. As per petitioner, the Writ Petition No.1756 of 2019 was

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disposed of by Hon’ble High Court of Rajasthan vide order dated

11.05.2022. The petitioner was permitted to withdraw the writ petition

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with liberty to file an application under Section 34 of the Act and was

also granted liberty to file application for condonation of delay. It was

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also observed that the Court concerned will decide the application of
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limitation as per available facts and law.

4. Thereafter, the petitioner has filed a petition under Section

34 of the Act before this Court on 16.06.2022 alongwith instant

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application.

5. It is further averred that the petitioner had approached

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the wrong forum on ill-advice by the counsel.

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6. The application is being contested by the respondent. It is

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submitted that under Section 34(3) of the Act a petition can be filed

within three months from the date of receipt of signed copy of Award.

A further period of 30 days can be extended by the Court on finding

sufficient reasons. As per respondent, the limitation beyond the period

prescribed under Section 34(3) of the Act cannot be extended. Section

5 of the Limitation Act was also not applicable for the purposes of

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extension of limitation. It is further submitted that the petitioner had

voluntarily and willfully chosen to file the Writ Petition in Hon’ble High

Court of Rajasthan, which was not at all maintainable. The fact that

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petitioner had approached the wrong forum on ill-advice of the counsel

has also been disputed.

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7. I have heard Sh. Navlesh Verma, Advocate for the

petitioner and Sh. Rajeev Kumar Gupta, Advocate, for the respondent.

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8. Learned Counsel for petitioner, in support of his claim,

has sought benefit of section 14 of the Limitation Act. He has made

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reference to judgments passed by Hon’ble Supreme Court in the cases
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of State of Goa vs. Western Builders 2006, Volume 6 SCC 239,

consolidated Engineering Enterprises vs Principal Secretary Irrigation

Department and others (2008) 7 SCC 169 and Simplex Infrastructure

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Limited vs. Union of India (2019) 2 SCC 455.

9. It is well settled that Section 14 of the Limitation Act will

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apply to the proceedings under Section 34 of the Arbitration and

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Conciliation Act 1996. However, section 14 of the Limitation Act will

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have application where the proceedings instituted in the wrong forum

are within the period of limitation prescribed under Section 34 (3) of

the Act and secondly the mandatory conditions of said provision are

fulfilled.

10. The modified Award in the facts of the instant case was

passed by the Arbitrator on 03.11.2018. Petitioner had filed the writ

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petition before Hon’ble High Court of Rajasthan on 15.01.2019.

Therefore, the filing of writ petition was within the period of limitation

prescribed under Section 34 (3) of the Act. The petitioner had

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withdrawn the writ petition from Hon’ble High Court of Rajasthan on

11.05.2022 and filed the instant proceedings before this Court on

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16.06.2022. A copy of order passed by Hon’ble High Court of

Rajasthan on 11.05.2022 in Civil Writ Petition No. 1756 of 2019

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reveals that the same was issued and delivered on 13.05.2022.

11. The benefit of Section 14 of the Limitation Act could be

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availed by the petitioner, if it could show firstly that the prosecution of
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proceedings before wrong forum was bona fide and secondly it was

pursued with due diligence.

12. During the course of hearing of this petition the petitioner

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was called upon to file the affidavit of the counsel, who allegedly had

advised the petitioner in the matter. In compliance, petitioner during

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submitted an affidavit of the counsel. The contents of the affidavit of

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the counsel belies the claim of petitioner. The relevant extract of the
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affidavit is reproduced as under:-

“2. That in regard with respect to the directions of the

Hon'ble High Court it is respectfully submitted that the
AVVNL sought opinion from the undersigned on the
point that "as to whether a writ petition can be filed for
the waiver of deposit of 75% of disputed amount as
provided under Section 19 of Micro, Small and Medium
Enterprises Development Act, 2006 in order to avail the
remedy available under Section 34 of Arbitration and
Conciliation Act, 1996.

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3. That in this regard on the basis of the documents

provided by the AVVNL and based upon the facts and
circumstances the undersigned vide opinion letter dated
21.11.2018 provided the opinion by which it was opined
that "Now, the question on which the specific opinion

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has been sought is whether a writ petition is

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maintainable against the Arbitral Award passed by the
learned Arbitration Tribunal, for the waiver of the pre-
condition of depositing the 75% of the amount which has
been awarded by the learned Tribunal, in terms of

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Section 19 of the Act of 2006. In this regard it is opined
that the remedy which has been prescribed under the
Act of 1996 is to approach the District & Sessions Judge,
under Section 34 of the said Act, in order to challenge

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the award dated 06.07.2018, passed by the Tribunal For
that the Nigam has to deposit 75% of the amount
awarded in favour of the claimant, as per Section 19 (3)
of the Act of 2006. However a chance can be taken by
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the prayer for waiver of deposition of 75% of the awarded
amount, on the count that the Nigam is a company
controlled by the State Government and also on the
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count that the entire amount related to the agreement for
supply of transformers has been paid to the M/s Bansal
Generation Limited, however with bit delay, that to for
the reason that entire agreed number of transformers
were not Supplied by the firm. It can also be pointed out
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that the present awarded amount is only towards the

interest and not the actual payment under the
agreement". Copy of the opinion letter 21.11.2018 is
enclosed herewith and marked as Annexure-1.
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4. That from the perusal of the opinion granted by

the undersigned nowhere it has been reflected that the
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opinion was given to file the writ petition before the

Hon'ble Rajasthan High Court, it was only mentioned to
file writ petition before the Hon'ble High Court. It was
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obvious that the petition was to be filed at the place of

jurisdiction”.

13. Thus, as per the counsel, he had advised the petitioner to

take a chance by filing Writ Petition in the High Court for the relief in

respect of the pre-condition to deposit 75% of disputed amount as per

Section 19 of MSME Act 2006.

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14. It is nowhere stated by the Counsel that his advice for the

petitioner was to assail the Arbitral Award by way of writ petition

before the High Court. In such circumstance, both the requirements of

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Section 14 of the Limitation Act i.e. the bona fide in prosecuting the

proceedings before wrong forum and due diligence are clearly missing.

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Petitioner is a Public Sector Undertaking and cannot avail the benefit

of ignorance. It can also be seen that even though the copy of order

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dated 11.05.2022 passed by the Hon’ble High Court of Rajasthan was

delivered to the petitioner on 13.05.2022, it still took more than one

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month to approach this Court.
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15. In the above discussed circumstances, the petitioner

cannot avail the benefit of Section 14 of the Limitation Act and in

absence thereof the petition under Section 34 of the Act filed by the
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petitioner in this court is beyond limitation, which cannot be

condoned.
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16. In result, there no merit in the petition and the same is

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dismissed.
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September 20, 2023 (Satyen Vaidya),

(tarun) Judge

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