Soumen Sen, J
This appeal arises out of a judgment and order dated 29th March 2016 passed by the District Judge, Purba Medinipur at Tamluk in Judicial Misc. Case
No. 74 of 2012, by which the District Judge dismissed the appellant’s application under section 34 of the Arbitration & Conciliation Act 1996
(hereinafter referred to as “the Actâ€) “for want of jurisdictionâ€.
The facts relevant for deciding this appeal are straightforward and uncontroverted. The appellant was declared the successful bidder of a tender
relating to “Area Development Work in Tank Farm and Pump Station premises at Haldiaâ€, awarded vide contract dated 11th June 1996 under
Notice Inviting Tender No. PL/PJ/HBC/C/95-96/4, issued by the Deputy General Manager (Projects, T&I) of the respondent.
Clause 9.0.1.0 of the General Conditions of Contract, which formed part of the contract documents, contained an arbitration agreement, in the
following terms â€
“9.0.1.0 â€" Subject to the provisions of clause 6.7.1.0 and 6.7.2.0 hereof, any dispute or difference between the parties hereto arising out of any
notified claim of the contractor included in his Final Bill in accordance with the provisions of clause 6.6.3.0 hereof and/or arising out of any amount
claimed by the Owner (whether or not the amount claimed by the Owner or any part thereof shall have been deducted from the Final Bill of the
Contractor or any amount paid by the Owner to the Contractor in respect of the Work) shall be referred to arbitration by a Sole Arbitrator selected by
the Contractor from a panel of three persons nominated by the General Manager.â€
The contract dated 11th June 1996 contained the jurisdiction clause, in clause 4.1 of the contract, which confined jurisdiction to decide the question(s)
arising out of or relating to the contract (including any arbitration in terms thereof) exclusively in the court of competent civil jurisdiction at New Delhi,
to the exclusion of all other courts. For convenience, the said clause is reproduced below â€
“Clause 4.1
Notwithstanding any other Court or Courts having jurisdiction to decide the questions(s) forming the subject matter of the reference if the same had
been the subject matter of a suit, any and all actions and proceedings arising out of or relative to the contract (including any arbitration in terms
thereof) shall lie only in the court of competent civil jurisdiction in this behalf at New Delhi (where the Head Office of the Refineries and Pipelines
Division of the owner is located and where this contract has been signed on behalf of the owner) to the exclusion of all other courts and only the
courts(s) at New Delhi shall have jurisdiction to entertain and try such action(s) and/or proceeding(s) to the exclusion of all other Courts.â€
The respondent terminated the contract with the appellant by its letter dated 30th August 1997. Disputes consequently arose; and the appellant, in
terms of the agreement between the parties, invoked the arbitration clause by filling an application being A.A. No. 376 of 1998 before the High Court
at Delhi under section 11(6) of the Act.
The High Court at Delhi, by an order dated 23rd February 2001, appointed Hon’ble Mr. Justice Jaspal Singh (Retd.) as the Sole Arbitrator and
referred the dispute for arbitration. The Sole Arbitrator passed an award dated 26th August 2012.
Aggrieved by the award, the appellant filed an application under section 34 of the Act before the District Judge, Purba Medinipur at Tamluk in Judicial
Misc. Case No. 74 of 2012. In the said case, the respondent filed an application raising a preliminary objection as to the maintainability of the
application filed under section 34 of the Act on the ground that the court did not have the jurisdiction to hear the matter. Against this, the appellant had
filed a written objection. These questions of maintainability culminated in, and were answered by, the impugned judgment.
The impugned judgment notes that it is undisputed that after disputes arose between the parties, the appellant had approached the High Court of Delhi
with an application under section 11(6) of the Act, in pursuance of which, an arbitrator was appointed. The impugned judgment holds that due to this
fact, section 42 of the Act applied; and therefore, the court at Purba Medinipur did not have the jurisdiction to deal with the application filed by the
appellant under section 34 of the Act.
The contentions of the respondent, as evident from the impugned judgment and the application filed by the respondent in Misc Case No. 74 of 2012,
can largely be summarized as follows â€
i. The primary contention is that clause 4.1 of the contract conferred jurisdiction on the court of competent civil jurisdiction at New Delhi to the
exclusion of all other courts and therefore the jurisdiction of the court at Purba Medinipur was barred. The respondent had submitted that it is well
settled that if the parties to a contract expressly agree to submit themselves to the territorial jurisdiction of one of the courts having jurisdiction to deal
with the disputes, then only that court which has been expressly conferred jurisdiction will have jurisdiction â€" to the exclusion of all other courts.
Reliance for this proposition is placed on ABC Laminart (P) Ltd. v. A.P. Agencies (1989) 2 SCC 163, Satluj Vidyut Nigam v. Continental Foundation
Joint Venture (2008) 2 Shim LC 510 (DB), Apparel Export Promotion Council v. Smt. Prabhati Patni (2005) 3 Arb LR 510 (Del).
ii. Alternatively, without prejudice to the aforesaid, it is submitted that the jurisdiction of the court at Purba Medinipur is outsed under section 42 of the
Act. Reliance in this context is placed on Steel (Singapore) Trading Pvt. Ltd. v. Bhushan Power & Steel Ltd. AIR 2011 Cal 132.
The contentions of the appellant, as evident from the impugned judgment and the objection taken by the appellant in reply to the application filed by the
respondent in Misc Case No. 74 of 2012, can largely be summarized as follows â€
i. On the forum selection clause, that is clause 4.1 of the contract, it is submitted that the said clause is non-est and void in view of the fact that no
cause of action in respect of the instant dispute has arisen in Delhi. It is submitted that the respondent has its office and carries on business at
Basudevpur, Haldia, within the jurisdiction of Purba Medinipur. The contract, which was concluded, had to be executed and performed and the same
was substantially performed by the appellant in Haldia. Payments were made by the respondent from their Haldia office within the jurisdiction of the
court at Purba Medinipur. As such, the cause of action in respect of the instant dispute arose within the local limits of the territorial jurisdiction of the
court at Purba Medinipur and the said court is competent to receive and try the application under section 34 of the Act.
ii. On section 42 of the Act, it is submitted that the said section is inapplicable in the present case. It is submitted that section 42 is only intended to
apply to a “court†as defined in section 2(1)(e) and neither the Chief Justice nor his designate under section 11(6) is a “court†as
contemplated under the Act.
Section 42 of the Act provides that where with respect to an arbitration agreement, any application under Part I has been made in a Court, that Court
alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings
shall be made in that Court and in no other Court.â€
It is crucial to note that an essential ingredient of section 42 is that it only applies to an application made in a “court†(See paragraph 25(c) of the
decision of the Supreme Court in State of West Bengal v. Associated Contractors (2015) 1 SCC 32). Section 2(1)(e) of the Act contains an
exhaustive definition marking out only the principal civil court of original jurisdiction in a district or a High Court having original civil jurisdiction in the
State, and no other court as “court†for the purpose of Part I of the Act. The definition is an exhaustive definition as it uses the expression
“means and includes†(See paragraph 25(a) of Associated Contractors).
However, Part I of the Act contemplates various applications being made with respect to arbitration agreements. For instance, an application under
section 8 can be made before a “judicial authority†before which an action is brought in a matter which is the subject of an arbitration agreement.
It is obvious that applications made under section 8 need not be to the courts and for that reason alone, such applications would be outside the scope of
section 42. Also, a party who applies under section 8 does not apply as dominus litis, but has to go wherever the “action†may have been filed.
Thus, an application under section 8 is parasitical in nature â€" it has to be filed only before the “judicial authority†before which a proceeding is
filed by someone else. Further, the “judicial authority†may or may not be a court. And a court before which an action may be brought may or
may not be a Principal Civil Court of Original Jurisdiction or a High Court exercising original jurisdiction. (See paragraph 12 of Associated
Contractors)
Similarly, and more importantly for the purposes of the present dispute, applications under section 11 of the Act are not to be moved before the
“court†as defined in section 2(1)(e) but before the Chief Justice, either of the High Court or of the Supreme Court, as the case may be, or their
delegates (prior to the 2015 amendment). This is despite the fact that the Chief Justice or his delegate has now to decide judicially and not
administratively. Again, section 42 would not apply to such applications for the simple reason that the Chief Justice or his delegate is not “courtâ€
as defined under section 2(1)(e) (See paragraph 16 and 17 of Associated Contractors).
Unlike applications under section 8 and section 11, applications under section 9 of the Act are made to the “court†as defined, for the passing of
interim orders before, during or after the award has been passed. In such a case, section 42 would kick in and preclude the making of all subsequent
applications under Part I to any court except the court to which an application has been made under section 9. (See paragraphs 18 and 25(d) of
Associated Contractors)
A seven judge bench of the Supreme Court, in SBP & Co. v. Patel Engineering Ltd. (2005) 8 SCC 61 8has already clarified the aforementioned
principle that applications under section 11 are not made to a “court†as defined in section 2(1)(e) but to the Chief Justice or his delegate. SBP &
Co. also clarified that the Act, by adopting such a provision and departing from the UNCITRAL Model Law, meant to treat an application made to the
“court†and an application made to the Chief Justice or his delegate differently and on a different footing. (See para 13 and 18 of SBP & Co.)
In Rodemadan India Ltd. v. International Trade Expo Centre Ltd. (2006) 11 SCC 65,1 the Supreme Court dealt specifically with the question of
whether the provisions of section 42 would apply to an application that had been filed under section 11. It was held, in paragraph 25, that section 42
was inapplicable since the section 11 application was not made to a “courtâ€.
The decision in Rodemadan has been re-affirmed in paragraphs 10 to 12 of the decision of the Supreme Court in HBM Print Ltd. v. Scantrans India
(P) Ltd. (2009) 17 SCC 338.
From the above discussion, what emerges as a clear proposition of law is that section 42 is not attracted by virtue of the appellant having filed an
application under section 11 of the Act before the Delhi High Court since an application under section 11 is not made to a “court†within the
definition of section 2(1)(e). Although the phrase “Chief Justice or any person or institution designated by him†has now been substituted by the
2015 amendment and replaced by the phrase “the Supreme Court, or as the case may be, the High Court or any person or institution designated by
such Courtâ€, the findings of Associated Contractors and other similar cases, holding that section 42 would not apply to applications made under
section 11, still holds true and is good law. Therefore, in the present case, this contention could not have been a ground for the District Judge, Purba
Medinipur at Tamluk, to have dismissed the appellant’s application under section 34 of the Act.
Once it is found that the application under section 34 did not attract the bar under section 42, the next issue to be decided is whether the application
under section 34 was maintainable - in view of: (i) clause 4.1 of the contract between the parties (forum selection clause) and clause 9.0.1.0 of the
General Conditions of Contract, which formed part of the contract documents (arbitration clause); and (ii) the fact that the award was passed in Delhi
and Delhi was the seat of the arbitration.
In paragraph 96 of BALCO v. Kaiser Aluminium Technical Services Inc. (2012) 9 SCC 52,2 the Supreme Court explained the jurisdiction of the court
which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place; and held â€
“96. …. In our view, the legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of
action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of
arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be required to exercise
supervisory control over the arbitral process. For example, if the arbitration is held in Delhi, where neither of the parties are from Delhi, (Delhi having
been chosen as a neutral place as between a party from Mumbai and the other from Kolkata) and the tribunal sitting in Delhi passes an interim order
under Section 17 of the Arbitration Act, 1996, the appeal against such an interim order under Section 37 must lie to the courts of Delhi being the courts
having supervisory jurisdiction over the arbitration proceedings and the tribunal. This would be irrespective of the fact that the obligations to be
performed under the contract were to be performed either at Mumbai or at Kolkata, and only arbitration is to take place in Delhi. In such
circumstances, both the courts would have jurisdiction i.e. the court within whose jurisdiction the subject-matter of the suit is situated and the courts
within the jurisdiction of which the dispute resolution i.e. arbitration is located.â€
BALCO also takes note of, and elaborates on, the supervisory jurisdiction that the seat court has at paragraph 123. It affirms and reiterates the
observations of the English Court of Appeal in C v. D 2007 EWCA Civ 1282 (CA) that:â€
“It follows from this that a choice of seat for the arbitration must be a choice of forum for remedies seeking to attack the award.â€
Following BALCO, the Supreme Court, inI ndus Mobile Distribution Private Ltd. v. Datawind Innovations Private Ltd. reported at (2017) 7 SCC 67,8
held:â€
“13. This Court reiterated that once the seat of arbitration has been fixed, it would be in the nature of an exclusive jurisdiction clause as to the
courts which exercise supervisory powers over the arbitration.â€
Furthermore, Indus Mobile also held â€
“19. A conspectus of all the aforesaid provisions shows that the moment the seat is designated, it is akin to an exclusive jurisdiction clause. On the
facts of the present case, it is clear that the seat of arbitration is Mumbai and Clause 19 further makes it clear that jurisdiction exclusively vests in the
Mumbai courts. Under the Law of Arbitration, unlike the Code of Civil Procedure which applies to suits filed in courts, a reference to “seat†is a
concept by which a neutral venue can be chosen by the parties to an arbitration clause. The neutral venue may not in the classical sense have
jurisdiction â€" that is, no part of the cause of action may have arisen at the neutral venue and neither would any of the provisions of Section 16 to 21
of the CPC be attracted. In arbitration law however, as has been held above, the moment “seat†is determined, the fact that the seat is at Mumbai
would vest Mumbai courts with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the
parties.â€
The issue of exclusive jurisdiction clauses was subsequently considered in Emkay Global Financial Services Ltd. v. Girdhar Sondhi (2018) 9 SCC 49
where the views in Indus Mobile (supra) was followed and reiterated.
The decision in Indus Mobile (supra) has been recently considered, explained and distinguished in Hirok Chowdhury & Ors. vs. Khagendra Nath
Mondal & Anr. reported at AIR 2018 Cal 272 and Debdas Routh vs. Hinduja Leyland Finance Limited reported at AIR 2018 Cal 322 in paragraph 60
and 67 of the said report. The said two paragraphs of Debdas Routh in effect show that the ratio in Indus Mobile has been read down in the light of
dictum in Hakam Singh v. M/s. Gammon (India) Limited (1971) 1 SCC 28 6to provide that, in case of a domestic arbitration when parties to an
arbitration agreement choose a seat for the arbitral reference and also choose the courts or a particular court at the same place as the seat of the
arbitral reference as the exclusive court to which petitions and applications under Part I of the 1996 Act can be carried, such court would have
exclusive jurisdiction in such regard as long as such court is otherwise clothed with the authority under S.2(1) (e) (i) of the Act read with sections 15
to 20 of the Code of Civil Procedure where applicable; or S. 2(1) (e) (i) of the 1996 Act read with Clause 12 of the Letters Patent. When two Indian
parties enter into an arbitration agreement where the seat of the arbitral reference is in India, the choice of such seat has no impact on the lex arbitri
since the arbitration law is uniform all over the country. Thus, if a party in London enters into an agreement with a party in Kolkata and the arbitration
agreement between them provides for the seat of the arbitral reference to be Geneva, unless the agreement also specifies something to the contrary, it
follows from such agreement that the conduct of the arbitral reference and the outcome thereof would be governed by Swiss law. The same thing
cannot be said, for obvious reasons, if a party in Mumbai were to enter into an arbitration agreement with another party in Kolkata and provide for the
seat of the arbitral reference to be Delhi. The concept of juridical seat of arbitration is irrelevant in any domestic arbitration since the arbitration law
does not change from one place to another within this country.
There cannot be any quarrel with the proposition of law that the parties by agreement cannot confer jurisdiction on a Court which does not otherwise
have the jurisdiction to try and determine the suit (See paragraph 14 of McNally Bharat Engineering Company Limited v. Maharashtra State Power
Generation Company Ltd. AIR 2015 Cal 207). However, where two or more courts could have jurisdiction over the matter, the parties are free to
decide on conferring exclusive jurisdiction on one of the courts to the exclusion of the other courts that could also potentially have jurisdiction (See
paragraph 7 of Gujarat NRE Coke Ltd. & Anr. v. Jindal Steel & Powers Limited &Ors. (2016) 2 CLJ 442 (Cal)).
In the present case, clause 4.1 of the contract specifies the forum selected by the parties and also explains the reasons that give the said forum the
jurisdiction to try the matter â€
“…shall lie only in the court of competent civil jurisdiction in this behalf at New Delhi (where the Head Office of the Refineries and Pipelines
Division of the owner is located and where this contract has been signed on behalf of the owner) to the exclusion of all other courts…â€
Under these circumstances, if a suit had been filed involving the contract, the suit would have to have been filed before the appropriate court in Delhi.
However, the appellant has contended that clause 4.1 of the contract is non-est and void in view of the fact that no cause of action in respect of the
instant dispute has arisen in Delhi. It is submitted that the respondent has its office and carries on business at Basudevpur, Haldia, within the
jurisdiction of Purba Medinipur. The contract, which was concluded, had to be executed and performed and the same was substantially performed by
the appellant in Haldia. Payments were made by the respondent from their Haldia office within the jurisdiction of the court at Purba Medinipur. As
such, the cause of action in respect of the instant dispute arose within the local limits of the territorial jurisdiction of the court at Purba Medinipur and
the said court is competent to receive and try the application under section 34 of the Act.
The settled position with regard to what constitutes a “cause of action†has been instructively laid down in South East Asia Shipping Co. Ltd. v.
Nav Bharat Enterprises Pvt. Ltd. (1996) 3 SCC 443, where it is stated â€
“3. It is settled law that cause of action consists of bundle of facts which give cause to enforce the legal injury for redress in a court of law. The
cause of action means, therefore, every fact, which if transversed, it would be necessary for the plaintiff to prove in order to support his right to a
judgment of the Court. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief
against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or
would arise.â€
Sub-section (c) of section 20 of the Code of Civil Procedure 1908 states that the suit may be instituted where “the cause of action, wholly or in
part, arisesâ€. Therefore, under this provision, it is sufficient that a part of the cause of action has arisen at the forum selected by the parties; and for
the purpose of this provision, it is not necessary that the substantial part of the cause of action arose in one of the other possible jurisdictions.
Therefore, even if the contentions of the appellants are accepted, it does not detract from the clause which it has itself signed on to. The said clause
provides the rationale that gives the courts in Delhi the jurisdiction â€" by stating that Delhi is the place “where the Head Office of the Refineries
and Pipelines Division of the owner is located and where this contract has been signed on behalf of the ownerâ€. This statement is uncontroverted by
the appellant; and therefore, the statement stands. If the statement stands, it is clear that, at least, some of the cause of action has arisen in Delhi.
Therefore, the forum selection clause in not non-est or void since a part of the cause of action can be said to have arisen in Delhi.
Additionally, in the unique circumstances of the present case, the factum of the appellant having approached the Delhi High Court, for appointment of
arbitrator, assumes some significance, as it shows the intention and belief of the appellant as to how it read clause 4.1 of the contract. Even though as
has been already explained hereinbefore, the section 11 applications are not hit by section 42, the conduct of the appellant is relevant in view of the
assertion made in the present application that the jurisdiction clause in clause 4.1 of the contract is non-est. If the appellant did believe that clause 4.1
of the contract is non-est, the appellant would have had no reason to approach the Delhi court with the application.
Instead, the appellant would have filed the section 11 application in this High Court if it truly believed that only Purba Medinipur had jurisdiction over
the matter.
Therefore, it is clear that the appellant too believed clause 4.1 of the contract had some manner of application. Since the setting aside application is not
hit by section 42, the setting aside application would come within the ambit of clause 4.1 of the contract. The clause specifies that out of the two
forums that would otherwise have jurisdiction over any suit or application, the parties have elected one forum. This forum is the courts in Delhi.
In Debdas Routh (supra), the Division Bench of this Court has stated:-
“84. It is possible that despite there being a forum selection clause governing an agreement and impacting the choice of the forum by a party
thereto, a party may, nonetheless, approach a court not designated by the agreement. Such action of the relevant party may come off only in two
situations: when the other parties to the contract do not object to the jurisdiction of the court; or, when the forum selection clause is incapable of being
enforced since the court of choice may not otherwise be clothed with the jurisdiction to entertain an action in terms of Section 2(1)(e)(i) of 1996 Act
read with Sections 16 to 20 of the Code or the relevant provision of the Letters Patent, as the case may be. However, if a party to an agreement
which is governed by a forum selection clause is of the opinion that the forum selection clause is inoperative or incapable of being enforced because
the designated court is not authorised under the law to receive the action, the petition or the plaint must clearly say so and indicate the reasons why the
designated court would be incompetent under the law to entertain any action arising out the agreement.â€
Applying the proposition enunciated in Debdas Routh hereinabove,the objection of the respondent herein to the jurisdiction of the Purba Medinipur
court has to be assessed. The appellant, on its part, has indicated in its reply to the respondent’s objection application, that the court in Purba
Medinipur is the proper court for receiving the section 34 application since the appellant has its office and carries on business at Basudevpur, Haldia,
within the jurisdiction of Purba Medinipur. The appellant has also stated that the contract which was concluded had to be executed and performed and
the same was substantially performed by the appellant in Haldia. Payments were made by the respondent from their Haldia office within the
jurisdiction of the court at Purba Medinipur. Their contention is that as such, the cause of action in respect of the instant dispute arose within the local
limits of the territorial jurisdiction of the court at Purba Medinipur and the said court is competent to receive and try the application under section 34 of
the Act.
However, in attempting to show that a substantial portion of the cause of action has arisen in Purba Medinipur, the appellant has not really dealt with
the express reasons stated in clause 4.1 of the contract itself for the parties deciding to confer jurisdiction on the courts in Delhi. When the contract
clause itself states the reasons for the parties being capable of conferring jurisdiction on the Delhi courts, the appellant could only have shown that the
forum selection clause was non-est by showing that neither of the two reasons that gave jurisdiction to the Delhi courts was applicable â€" that is,
Delhi is where the Head Office of the Refineries and Pipelines Division of the owner is located and Delhi is where this contract has been signed on
behalf of the owner. Mr. Samrat Sen, the learned Senior Counsel appearing for the appellant has, true to the rich tradition of the Calcutta Bar, fairly
submitted that in paragraph 5(e) of the setting aside application, the appellant has admitted execution of the agreement at New Delhi and accordingly
the application for setting aside ought to have been filed at Delhi. The relevant sentence in paragraph 5(e) states:
“The terms of Petitioner’s letter were accepted by the Respondent by implication whereupon the Petitioner was asked to sign the Contract for
the Project on 11th June, 1996 in the Office of the Respondent at New Delhi.â€
Applying the relevant portion of last sentence of paragraph 96 of BALCO, that is “the court within whose jurisdiction the subject-matter of the suit
is situatedâ€, the suit could have either been filed in Purba Medinipur or in Delhi; but since there is a forum selection clause, applying the ration in
Debdas Routh (supra), the suit (in this case, application) would have to be filed in the proper court in Delhi. We are in agreement with the views
expressed by the coordinate bench in Hirok Chowdhury (supra) and Debdas Routh (supra).
The section 42 bar is not attracted by virtue of the appellant having filed an application under section 11 before the Delhi High Court since an
application under section 11 is not made to a “court†within the definition of section 2(1)(e). This was the only reasoning of the impugned
judgment for dismissing the application made under section 34. However, the reasoning is not in accordance with law. It is elementary that a request
for an arbitral tribunal to be constituted under Section 11 of the Act has no bearing on the suits or any petition under Part I of the Act. In short,
Section 42 of the Act confers exclusive jurisdiction only on such Court which has previously entertained a petition under Part I of the Act of 1996, if
such Court is competent to have received such petition under Section 2(1)(e) of the Act.
In view of the aforesaid, we dismiss the appeal for reasons other than the reasons indicated in the impugned order.
However, it is not in dispute that the application for setting aside of the award was filed before an incompetent court within the period of limitation.
Section 43 of the Arbitration and Conciliation Act, 1996 makes the Limitation Act, 1963 applicable to arbitrations as it applies to proceedings in court.
Section 14 of the Limitation Act deals with the “exclusion of time of proceeding bona fide†in a court without jurisdiction subject to satisfaction of
certain conditions. The position of law is well settled in respect to the applicability of Section 14 of the Limitation Act to applications filed under
Section 34 of the 1996 Act (See. Indian Oil Corporation vs. NETC India Limited and ors. reported at 2006 (6) SCC 7; 6Union of India vs. Shring
Construction Co. Pvt. Ltd. reported at (2006) 8 SCC 18; United India Insurance Co. Ltd. vs. J.A. Infrastructure Pvt. Ltd. reported at (2006) 8 SCC
21; Simplex Infrastructure vs. Union Of India reported at (2019) 2 SCC 455).
We are of the view that the appellant has proceeded with the application for setting aside of the award before a wrong forum in good faith and due
diligence. The application for setting aside was filed within the limitation period. By applying the facts of the present case to the well settled position of
law, we are of the view that the appellant is entitled to the benefit of Section 14 of the Limitation Act. The application for setting aside of the award
was filed on the 84th day, well within the initial prescribed period of limitation. We accordingly grant leave to the appellant to file a fresh application
for setting aside of the award before the appropriate court within a fortnight, which will in any case fall within the extended period of thirty days
beyond the initial period of ninety days, well within the permissible limit prescribed under section 34(3) of the Act. There are good reasons for
extending the time. However, if such application is not filed within the extended period, the respondent may object to such an application being filed
beyond the date fixed by this order.
The appeal is dismissed, with liberty to the appellant to carry the application for setting aside of the award to the appellate Court.
However, there shall be no order as to costs.
Urgent certified website copies of this judgment, if applied for, be given to the parties, subject to compliance with all requisite formalities.
I agree.
