13 September 2021 | Union of India v. Rama Contractor | OMP (COMM) 255/2021 | Vibhu Bakhru J | High Court of Delhi | 2021 SCC OnLine Del 4350

The award was received on 26 June 2019 (a day after it was made). A set-aside application was filed in the subordinate court on 24 October 2019. Since that court did not have jurisdiction, on 12 February 2021, the petition was withdrawn with liberty to file in court with jurisdiction subject to limitation. Then, on 17 June 2021, the petition was filed in the High Court but in defect. It was refiled on 07 August 2021.

Since the maximum limitation period under Section 34 (3) ACA is three months plus thirty days at the court's discretion, the first question was if the petition before the district court totally outside limitation was or within at least the grace period of thirty days.

Bakhru J followed Himachal Pradesh v. Himachal Techno Engineers, (2010) 12 SCC 210 in which the Supreme Court has ruled that “when the period prescribed is three months (as contrasted from 90 days) from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts.”

For clarity, the reader should note Techno’s example: “the award was received by the Executive Engineer on 12-11-2007, for the purpose of calculating the three months period, the said date shall have to be excluded having regard to Section 12(1) of the Limitation Act, 1963 and Section 9 of the General Clauses Act, 1897. Consequently, the three months should be calculated from 13-11-2007 and would expire on 12-2-2008. Thirty days from 12-2-2008 under the proviso should be calculated from 13-2-2008 and, having regard to the number of days in February, would expire on 13-3-2008.”

Bakhru J also ruled that the calculation of three months done by another single judge bench of the Delhi High Court in Union of India v. Wishwa Mittar Bajaj & Sons, (2007) 141 DLT 179 was erroneous (that is, “the period of one month would be one day less than the corresponding date for every one month …the first month counted from 28th July, 2005 would end on 27th of August, 2005, the second month would end on 26th of September, 2005 and the third month would end on 25th of October, 2005”).

So, based on Techno’s calculation, the delay, in this case, was 28 days, that is, within the discretionary period of 30 days.

The next question was if the time taken in the lower court could be condoned by applying Section 14 of the Limitation Act, 1963.

Held, although the benefit of Section 14 of the Limitation Act must be extended liberally, it is incumbent upon the party seeking such benefit to establish from the record that the necessary conditions as stipulated in Section 14 of the Limitation Act are met. There was no pleading that the proceeding in the lower court was bona fide and nothing on record to show it was bona fide.

However, even if the benefit of Section 14 LA is included, the petition would not be within 30 days after the three months.

Further, held, the Supreme Court’s order on limitation is of no help. What was extended by the above order of this Court was only “the period of limitation” and not the period up to which delay can be condoned in the exercise of the discretion conferred by the statute.

Read the decision here.