MAHINDRA AND MAHINDRA FINANCIAL SERVICES LTD versus MAHESHBHAI TINABHAI RATHOD & ORS.

Citation: [2021] 12 S.C.R. 94 · Decided: 16-12-2021 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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94
SUPREME COURT REPORTS
[2021] 12 S.C.R.
94
MAHINDRA AND MAHINDRA FINANCIAL SERVICES LTD.
v.
MAHESHBHAI TINABHAI RATHOD & ORS.
(Civil Appeal No. 11477 of 2014)
DECEMBER 16, 2021
[N. V. RAMANA, CJI , A. S. BOPANNA AND
HIMA KOHLI, JJ.]
Arbitration and Conciliation Act,1996 – s.34 – Power of Court
to condone the delay for setting aside an Award – In the instant
case, Arbitral award passed on 28.02.2011 in favour of appellant
and copy of the award dispatched to both the parties – Thereafter
appellant filed execution petition on 27.06.2011 to recover amount
due from the respondent – Respondent on 04.01.2012 assailed the
arbitral award by filing the petition under s.34 of the Act 1996
along with the notice of motion under s.5 of Limitation Act seeking
condonation of delay of 185 days which is beyond the time limit
prescribed under s.34(3) of the Act 1996 – Single Judge while
considering the notice of motion noted that respondent refused to
accept the registered post containing the award and in that view,
declined to condone the delay – However, Division Bench of High
Court condoned the delay – On appeal, held: Limitation period to
set aside an award is prescribed under s.34 of the Act 1996 – Extent
to which the delay in setting aside an award can be condoned is
circumscribed under proviso s.34(3) of the Act 1996 – s.5 of
Limitation Act is not applicable to condone the delay beyond the
period prescribed under s.34 of the Act 1996 – Division Bench was
not justified in condoning the delay in a casual manner – Order of
Single Judge restored.
Allowing the appeals, the Court
HELD: 1. A perusal of the order passed by the Single Judge
indicates that as per the explanation put forth by the respondent,
it was their case that the Arbitration Petition under Section 34 of
Act 1996 filed on 04.01.2012 was on having knowledge of the
award, which according to the respondent was on 15.11.2011 when
notice in the execution petition was received. The affidavit in
[2021] 12 S.C.R. 94
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reply was noted by the Single Judge, as per which it was brought
on record that the Arbitrator had dispatched the award dated
28.02.2011 on 15.03.2011 by making an inscription, ‘AWARD’,
on the envelope, by Regd. Post Acknowledgment due. The refusal
to receive was endorsed by the postal authority on 23.03.2011.
In appropriate cases the delay is to be condoned so as not to
defeat the meritorious case. However, that would arise only when
the power under Section 5 of Limitation Act is available to be
exercised. The case of Katiji is one where such power was available
to be exercised as it was not excluded. In the instant case where
limitation is prescribed, the extent to which it can be condoned
is circumscribed and it has been held by this Court that Section 5
of Limitation Act is not applicable to condone the delay beyond
the period prescribed under Section 34(3) of Act 1996, the
Division Bench was not justified in condoning the delay in a casual
manner. [Paras 8, 10][101-A-C; 102-B-D]
Union of India v. Popular Construction Co. (2001) 8
SCC 470 : [2001] 3 Suppl. SCR 619; State of Himachal
Pradesh & Anr. vs. Himachal Techno Engineers & Anr.
(2010) 12 SCC 210 : [2010] 8 SCR 1025; P. Radha
Bai v. P. Ashok Kumar (2019) 13 SCC 445 : [2018] 12
SCR 143; Chintels India Limited v. Bhayana Biuilders
Private Limited (2021) 4 SCC 602 – relied on.
Collector, Land Acquisition, Anantnag and Another v.
Mst. Katiji and Others AIR 1987 SC 1353 : [1987] 2
SCR 387 – held inapplicable.
Case Law Reference
[2001] 3 Suppl. SCR 619
relied on
Para 7
[2010] 8 SCR 1025
relied on
Para 7.1
[2018] 12 SCR 143
relied on
Para 7.2
(2021) 4 SCC 602
relied on
Para 7.3
[1987] 2 SCR 387
held inapplicable
Para 10
MAHINDRA AND MAHINDRA FINANCIAL SERVICES LTD. v.
MAHESHBHAI TINABHAI RATHOD
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SUPREME COURT REPORTS
[2021] 12 S.C.R.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.11477
of 2014.
From the Judgment and Order dated 24.09.2012 of the High Court
of Judicature at Bombay in Appeal No.526 of 2012 in Notice of Motion
No.925 of 2012 in Arbitration Petition No.209 of 2012.
With
Civil Appeal No.11478 of 2014.
Prashant Kumar, Amit Singh, Merusagar Samantaray, Advs. for
the Appellant.
V.  N. Raghupathy, Adv. for the Respondents.
The Judgment of the Court was delivered by
A. S. BOPANNA, J.
1. The appellant in these appeals is assailing the order dated
24.09.2012 passed by the learned Division Bench of the High Court of
Judicature at Bombay in Appeal Nos.526 a
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